LAW104:TORTSANDDAMAGES FirstSemester,AY20122013 Prof.MaryRoseS.Tan GuidelinesfortheMidtermAssessment 1. Duedateofsubmission:Onorbefore11:59p.m.on26September2012via emailtomtan4289@uni.sydney.edu.au 2. PlaceintheSubject:[SURNAMES][AssessmentSet] 3. MidtermAssessmentis25%ofyourfinalgrade 4. Format: Size8.5x11paper 1marginonallsides Arial10font 1.5spacing Pagenumberontoprightportionofpageexceptfirstpage 5. Assignmentlengthmustnotbemorethan5,000words.

000words.Markswillbededucted ifyouexceedthewordlimit. 6. Usecorrect,consistentcitation.Casecitationmustincludedateofdecision.Use footnotes,notendnotes. 7. Plagiarismandcheatingwillmeritagradeof5fortheclassforallmembersof thegroup. 8. Printtheattachedprescribedcoverpage.Coverpagemustbefoldedcrosswise andstapledinthemiddle.Submitcoverpagetogetherwithprintedassessment on27September2012duringclass.

 LAW104:TORTSANDDAMAGES FirstSemester,AY20122013 MIDTERMASSESSMENT COVERSHEET STUDENTNO.:

NAMES:(Surname,FirstName) 1. 2. 3. 4. 5. WORDCOUNT: Wehavediscussedthecontentsofthis WorkandthisWorkissubstantiallyours. Wehaveequallycontributedtothe makingoftheWork.Totheextentthat anypartofthisWorkisnotours,wehave indicatedthatitisnotby acknowledgingthesourceofthatpart orthosepartsoftheWork.

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LAW 104: TORTS AND DAMAGES First Semester, AY 2012-2013 Prof. Mary Rose S. Tan Instructions for the Midterm Assessment 1. You will be divided into groups composed of at least four (4) members, randomly selected. You are required to discuss the case assigned to you, identify the issues and collectively do research. The written output must be made with equal contribution by each member. 2. What is measured in this assessment is your analytical skills illustrated in a concise manner as well as your ability to apply the principles you learned in this class. 3. Coverage is until Vicarious Liability of the State. 4. GOODLUCK! ************************************************************************

FACTS Mr. Lawin flies to Manila from Hong Kong, and back, every week, to shuffle between his work in a Hong Kong asset management firm and his family in Manila. His airline of choice is REX Airlines which stands for Regional Express Air, Inc. which has a promotional tagline, Flights fit for a King. For one whole year, Mr. Lawin takes the REX flights which leaves HK at 9:00 p.m. and arrives in Manila at 11:30 p.m. every Friday, and also the one that leaves Manila at 6:00 a.m. Monday, arriving in HK at 7:30 a.m., which gives him enough time on Fridays, to leave the office to get to the airport, and on Mondays, to go straight to work upon arrival in HK. Also because his schedule is regular, he would book the flights ahead and consequently, would get to avail of discounted fares. One time, upon arrival in Manila, he was surprised that instead of disembarking in the passenger tube going to the arrival area, the plane doors were opened at the tarmac and they were made to deplane using a metal, movable stair, to walk across the tarmac and take the shuttle bus (which had no seats) to be taken to the arrival area. An announcement was made that there are temporary repairs being undertaken which was the reason why the tube was not available. The following week, upon his arrival in Manila, they were again led out to the metal stairs, cross the tarmac, ride the same bus to be brought towards the arrival area. Since he took the same flights every week, he observed that while REX announces each time that there were temporary repairs being undertaken, other flights of other airlines were using the other tubes. This goes on for another three months (by then, he had been flying with REX every week for a year and three months). He had concluded that it was not really repairs which was the cause of the non-use of the tubes but REXs cost-cutting measures especially after finding out that it costs a few thousand pesos for each use of the tube. REX would continue to use the metal stairs to disembark passengers whether the weather was fair or not, even if it was raining really hard and the stairs and the tarmac would get slippery. One year and six months since he began flying with REX, he was going down the metal stairs at the tarmac coming from the plane that had just arrived in Manila from Hong Kong while it was raining. Due to poor visibility, the plane had to hover above the airport for twenty minutes before it was allowed to land. While umbrellas are not allowed by HK Airport policy to be in the carry-on baggage of passengers, another passenger, Ms. Kalaw, also a regular flyer, managed to buy an umbrella from the duty free shops inside HK airport after she passed through airport security, and so she had his umbrella open while going down the stairs. Ms. Kalaw flies to HK regularly to buy goods from HK to be sold in Manila. Other than her umbrella, she was carrying with her that night two bags weighing more than 8 kilos each, full of her goods for sale, her shoulder bag also full and heavy despite the one piece carry-on baggage weighing only 7 kilos limit of REX.

There was another passenger, Ms. Tandag, a 14-year-old student, who was with her mother during the flight. Ms. Tandag had been quarrelling with her mother during the last few minutes of the flight as she was in a bad mood because of the delay, and was so spiteful that once the plane landed, she deliberately went ahead of her mother while going out the plane pushing and shoving other passengers in the process. Mr. Lawin was carefully going down the wet metal stairs, holding the railing with his right hand, while Ms. Kalaw was behind him, holding her umbrella, her two bags and wearing her shoulder bag. Behind them is Ms. Tandag. Mr. Kalaw was just midway down the metal stairs when he heard a loud shriek and all of a sudden, he was hurled down the stairs, rolling twice and dislocating his right shoulder as a result. Apparently, Ms. Lawin had slipped and landed on her bottom. On her way down, she instinctively let go of her bag and grabbed the sleeves of Mr. Kalaws shirt, which led to his fall. In addition, the stairs also rolled to the opposite direction of Ms. Kalaws fall because the safety lock had apparently not been secured after the rolling metal stairs were moved close to the aircraft door. After the fall, Ms. Kalaw claims that she slipped because she was outbalanced when Ms. Tandag squeezed herself from behind the queue to overtake her which made her lose her balance, causing her to slip and fall. Other passengers on the metal stairs affirmed that this happened. Due to his injuries, Mr. Lawin had to be on sick leave for one week, and was not able to take three non-refundable, non-rebookable REX flights. When he had to return to HK, he was forced to book another airline three times much expensive than his forfeited REX tickets. Mr. Lawin wrote a letter demand to REX Airlines demanding refund of his three tickets, compensation for his hospitalization costs, recompense for his lost business opportunities while he was indisposed and other damages. His claim amounted to One Million Pesos. On the other hand, Ms. Kalaw likewise sent a demand letter asking REX for damages as she, too, was hospitalized for one day, her merchandise were damaged during the fall, and she was humiliated because of the incident after somebody took a video of her lashing out at the ground crew who came to her aid after she fell. In the video, she was on the ground, screaming and shouting and had to be carried by the crew after she refused to calm down. The video had apparently gone viral on the internet and public sentiment was to criticize her severely for her scandalous behavior. (NOTE: Assume that all these facts will be discovered and elicited during the hearing and that nothing will be suppressed)

SET A You are young associates at a firm that was engaged by Mr. Lawin to represent him in this case which he intends to file against REX. Mr. Lawin wants to know the likelihood of success of his claims against REX so that he can make an informed decision during negotiations. Since he travels frequently, he is very open to a settlement and as much as possible, wants to avoid litigation. Atty. Falcon is the partner handling the case of Mr. Lawin and called you to a meeting. In said meeting, Mr. Lawin relayed to you the facts as stated above. After the meeting, Atty. Falcon met with you, his associates, separately and assigned you to prepare a Memorandum of Law presenting the possible issues that may arise during litigation, which could be advantageous or disadvantageous to your clients cause. You were asked to discuss the possible applicable doctrines, possible defenses of REX and counter arguments by Mr. Lawin. Atty. Falcon expects you to cite cases that are relevant to your discussion and hopes that after reading your Memorandum, your firm will be able to advise Mr. Lawin on the likelihood of success of his claim.

SET B You work as in house counsels of REX Airlines and you were called to a meeting by the General Counsel, Atty. Loro, after the demand letter of Mr. Kalaw was referred to him by the President and CEO of REX. Atty. Loro would like you to prepare a Briefing Paper setting forth all the possible liabilities of REX and all the possible defenses with respect to the claim of Ms. Kalaw (including who else must be liable). Atty. Loro required you to discuss all possible applicable doctrines, possible defenses of REX and counter arguments by Ms. Kalaw. Atty. Loro expects you to cite cases which are relevant in your discussion. Atty. Loro would like you to recommend whether or not to settle with Ms. Kalaw based on the likelihood of winning the case. Costs of litigation is not an issue because the case will be handled in-house and it is the policy of REX to avoid settlement when the likelihood of success is high in order to discourage frivolous claims against the airline.

SET C You are interns at the Office of Legal Aid and, on your duty day, Ms. Kalaw arrived and relayed to you what happened. Because you have been trained well by your supervising lawyer as well as the OLA Director, you were able to interview Ms. Kalaw and elicited from her an accurate recounting of the events. Ms. Kalaw would like her case to be handled by OLA. She would like to pursue the case against REX Air for the injuries sustained due to her fall and also for the humiliation that she suffered due to the video that went viral. She is also worried that Mr. Lawin would have a claim against him because she grabbed onto him as she was falling. She also would like to know if she has a claim against Ms. Tandag. In accordance with the process of selection of cases to be accepted by OLA, the case must be meritorious and must contribute to the training of the interns. You and your team are interested in handling the case and must persuade your supervising lawyer that the case should be accepted by OLA. Write a Memorandum of Law to the OLA Director, through your supervising lawyer, setting forth the facts of the case, the claims of Ms. Kalaw, the possible issues and the relevant doctrines which are applicable. You are also to discuss possible liability of Ms. Kalaw to Mr. Lawin and her available defenses if any. You must also address the possible liability of Ms. Tandag.