Tort Exam Barnaby Willows owns a small boutique petting zoo in downtown Sydney. This petting zoo harbors two of each kind of local species of animal. The zoo is open to the public seven days a week for 8 hours a day. The animals are kept in cages pursuant to city ordinance and have received all of the required vaccinations mandated by public health code. The petting zoo has been in operation since January of 2000; to date no member of the public has been injured by any of the animals. Paul Hogan has been an employee of Barnaby for the past two (2) years his main job includes tending to the animals in their cages. This includes feeding the animals and making sure they are comfortable at all times.

Barnaby has recently received an import of Coyotes from the United States Southwestern Cultural Center located in Phoenix, Arizona. The Coyotes are a large draw for Barnaby and business has increased roughly 25%. Both Barnaby and Paul are inexperienced when it comes to tending to Coyotes. One day after the last tour, Barnaby instructs Paul to clean out the cages of the Coyotes and prepare them for a private showing for the Australian Prime Minister. While cleaning out the cages, Paul notices that some rotten meat has been left over from the previous feedings in the corner of the cage. Paul, attempting to remove it, is summarily attacked by the Coyotes and sustains several injuries to his person.

Our law firm represents Barnaby and the petting zoo; both are being sued by Mr. Hogan for an unspecified amount of damages. What are the main issues that Mr. Hogan can raise and how can our law firm anticipate these issues and what defenses can our firm raise in defense of Barnaby?

Answer #1

The first avenue that Mr. Hogan will attempt to assert will be that as the Plaintiff he was owed a reasonable duty of care in that Mr. Willows should have known or at least attempted to know that Coyotes are wild animals and have the potential to lash out and cause injury. Mr. Hogan will attempt to assert that Mr. Willows was negligent in his maintenance of a safe environment for dealing with animals that are not indigenous to Australia. Mr. Hogan will attempt to assert the four principles of Negligence: Duty, Breach, Causation and Damages.

Mr. Hogan will argue that Mr. Willows owed a Duty to ensure the Coyotes were taken special care of when penning them in at the end of the day; further Mr. Hogan will assert that Mr. Willows breached that duty by NOT creating a higher standard of care when dealing with the Coyotes; Mr. Hogan will claim this breach directly caused the Coyotes to be in a position to injure him and finally he will assert that all of these elements directly and consequently lead to Mr. Hogan being injured by these animals.

In contrast to the arguments used by Mr. Hogan; our client, Mr. Willows is in a strong position to argue three main legal theories. First, Mr. Willows can assert that under Australian Tort Law, in order to establish a construct for damages; the Plaintiff would have to assert the Defendant could have reasonably foreseen the likelihood of damages. This is a standard that Mr. Hogan will find it difficult to overcome. Having no experience in dealing with Coyotes; given they are not indigenous to Australia, it cannot be argued with any degree of persuasiveness that Mr. Willows could have reasonably anticipated that the Coyotes would lash out in the manner in which they did and cause Mr. Hogan injury.

The second theory that Mr. Willows can assert is the Voluntary Assumption of Risk theory. Mr. Hogan works with animals every day of his employment at the petting zoo. All of these animals have the potential to injure, harm or mame in some capacity-just because they haven't yet does not mean they don't possess the ability. Therefore, each time, Mr. Hogan walks into one of the cages, holding areas or pens he voluntarily assumes the risk of injury-therefore Mr. Willows cannot be held liable for risks taken at the behest of his employee, Mr. Hogan.

The third and final theory that Mr. Willows can utilize is the Obvious Risks associated with Mr. Hogan's activities. Mr. Hogan understood the Obvious Risk associated with integrating himself into the holding cage of Coyotes-animals that he was not experienced in interacting with. Furthermore, Mr. Hogan's experience with other animals and training afforded him the knowledge that would have dictated the principle that one never attempts to remove...

Willows, it seems unlikely that Mr. Hogan will prove successful in his quest for damages.
Question 2

Linda Blair owns a successful chain of men's and women's cosmetic stores throughout New South Wales. She has been a business owner for roughly 5 and one half years. Recently she has decided to expand her business to include Melbourne and the surrounding areas. Ms. Blair's business model relies on her employees working as Independent Contractors. Ms. Blair's employees are expected to use their own vehicles-with a per diem compensation structure built into the business model and are further expected to hold themselves out as employees of Blair, Inc.-the business that Ms. Blair runs.

As part of his duties, Mr. Loiselle is a traveling salesman for Blair Cosmetics. His "jurisdiction" includes most of Sydney and the surrounding areas. Mr. Loiselle uses his own vehicle when traveling for "sales calls" to local salons and beauty parlors. Mr. Loiselle has been an employee of Ms. Blair's for the past 3 years. To date Mr. Loiselle has not received any negative comments from any of his clients in these three years.

One day, while returning from a sales call on the outskirts of Sydney, Mr. Loiselle decided to change his usual course to the main office. He instead, decided to travel through downtown Sydney during rush hour. Unaware of the time of day, Mr. Loiselle became ensnared in traffic, causing him to run approximately 20 minutes late. Mr. Loiselle was fully aware of a staff meeting to be held in the main offices that afternoon and furthermore is aware of the fact that Ms. Blair does not tolerate tardiness to any company meeting.

In order to alleviate the possibility that he would be late for the staff meeting, Mr. Loiselle began to drive erratically through the streets of Sydney, he drove in excess of the speed limit and broke several traffic laws by refusing to signal and blowing through a red light. As a result of these actions, Mr. Loiselle caused his vehicle to collide with a van being driven by Annie Potts. Ms. Potts was parked at a stop sign that was at an intersection that traversed Mr. Loiselle's path. As a direct result of the accident Ms. Potts sustained severe injuries resulting in approximately $250,000 in medical bills for physical injuries and another $650,000 in damages for psychological damage. Ms. Potts is suing both Mr. Loiselle and Ms. Blair for recovery of her damages and also punitive damages. In total, Ms. Potts is seeking a total of $2.5 million in damages. Ms. Potts is claiming, among other things that Ms. Blair was negligent in her management of Mr. Loiselle and should have reasonable known there was a possibility of Mr. Loiselle's actions.

You have been contracted and retained by Ms. Blair as her counsel. What legal theories can she utilize that can prevail at trial or alternatively, minimize the amount of damages her company will have to pay?

Answer

One of the main theories of defense that can be used in representing Ms. Blair comes from the Independent Contractors Act of 2006. This national law sets several boundaries for establishing whether an individual is an independent contractor or not. If it can be demonstrated that Mr. Loiselle is indeed an Independent Contractor then Ms. Blair cannot be held liable for the damages sustained by Ms. Potts. The critical distinction, under common law, for determining if Mr. Loiselle was an Independent Contractor or Employee lies in the manner in which Mr. Loiselle performed his duties. If it can be established to the court that Mr. Loiselle possesses the power, authority and ability within his daily life as an Independent Contractor of Blair, Inc. To perform and carry out business transactions and commercial agreements with clients in a manner that Mr. Loiselle sees fit without any need to seek approval or authorization from anyone in the corporate offices of Blair Inc. Proving that Mr. Loiselle is an Independent Contractor both under Australian Statute and Common Law would remove the potential for Vicarious Liability attaching itself to Blair Inc. The main premise of the Vicarious Liability theory is that the rule was developed so that employers are NOT held…