Assignment advice - T2 2020 PDF

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TORTS T2 2020 – Nicola Kozlina’s groups MID-TERM ASSIGNMENT ADVICE Courtesy of Jeni Engel Problem question – How to structure your answer: 

A problem-solving assignment doesn’t require essay format. There’s no need for an overall introduction. There’s also no need for an overall conclusion as this will only repeat the conclusions you’ve reached along the way. Just start with the first legal issue.

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Write in full sentences and paragraphs; not in point form. Using the latter will likely prevent you from developing a sustained argument which is what is needed to fully explore the issues.

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You can (and probably should) use sub-headings to structure your answer. As a starting point, you have the structure of the question as a guideline, but feel free to improve on that; adapt it to your thinking about the problem; group similar considerations together etc.

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IRAC/MIRAT is a very useful problem-solving schema and planning tool to ensure that you cover all of the essential considerations in your answer. HOWEVER, it has limitations. It isn’t intended to provide a model for how to convert a plan into a fully-reasoned answer. As I suggest above, it’s over to you to structure your response and to express yourself clearly, concisely and relevantly.

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Quick review: o ‘Legal Issue’: The end game is to determine whether or not a DoC is owed/whether or not a private nuisance can be established, but obviously you need to identify the specific aspect of the existence of a duty of care/private nuisance that needs to be tested at each step. Try to integrate facts into your statement of the legal issue being considered. This results in a more relevant, concise paper. o ‘Legal Rules’: Go back to the cases we’ve studied, and/or relevant legislation, and work out what the applicable rules/tests are for a specific issue. Without knowledge of the legal rules/tests, it is difficult (if not impossible) to formulate the legal issues accurately. o ‘Material facts’: These can be confirmed once you’ve identified the legal issues. ‘Material’ facts are those that bear on the legal issues. Assess whether each piece of information in the scenario might be relevant to a legal issue. You mustn’t invent facts beyond what the scenario provides you with, although you can point out ambiguities or difficulty in coming to a conclusion due to a lack of information, for example. Refer to material facts in framing the issues, applying the law to the facts and in your conclusions on issues or overall. There is no need to separately set out the material facts in your answer. 1

o ‘Application’: This means bringing together the rules and the material facts to build your own arguments about the strengths and weaknesses of a party’s case. The ‘application’ section is where students are most able to show their original legal thinking. o ‘Conclusion/Tentative conclusion’: Means just that – although some issues might work out very distinctly, where there are conflicting options open on the facts, you should make out the strongest case as you see it, while acknowledging any weaknesses that you can identify. Similarly, for example, even if you conclude there is no duty of care for a case of PMH, consider that if the court finds otherwise, that it would then be necessary to evaluate whether there are any limitations on recovery of damages. In private nuisance, you might conclude there is no case made out, but consider if the court finds otherwise, that it would then be necessary to evaluate whether any defences are open and what the most suitable remedy would be. In this way, you ensure you have a thorough response.

General Advice 

Organise your answer (see above) o A well-organised answer should reflect clear thinking and should avoid repetition. It’s advisable to keep all discussion of one issue in one place – don’t revisit topics. o Present your arguments fully before you come to your conclusions. These should come at the end, so don’t start with a conclusion. o Make sure you address all questions.

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Make correct use of authority by making clear the principle for which it stands and how it then relates to your argument.

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There’s no need to re-tell the facts of a case (or of the scenario) in their entirety. Just discuss what’s relevant to your purpose at that point.

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The problem-solving exercise is not where you should review or critique an area of law, although there might well be scope for this in the essay – just solve the problem.

Language 

Aim to write in a clear, lucid manner to develop cogent arguments. Aim to be concise, without being abrupt. Aim to be descriptive by drawing on the facts but only insofar as this adds to your legal arguments. 2

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Use an academic level of language in your writing without being overly formal. Only use words you know the meanings of. Grammar, spelling, punctuation and sentence construction are important. Best advice: get someone who doesn’t know law to read your work. That will soon tell you if you’ve expressed yourself clearly or not.

Essay question: 

Structure your answer as you would any essay response. Note that essays in law can be given a title and use subheadings, if appropriate.

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Note carefully these requirements in the essay question: o Respond critically to all parts of the given statement; AND o Formulate your critical response in a way that: 

uses and reflects on the fact scenario and its implications in a significant or integral way throughout your answer to inform aspects of your argument. Just making a quick reference to the facts is insufficient; AND

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draws on articles/critical literature/policy arguments you have studied for this course in a significant or integral way that allows you to demonstrate an understanding of the thesis/theses of the material and to make your own argument. Just making a quick reference to the material or cherry-picking a couple of quotes is insufficient; AND

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explains and critiques the relevant law (both CLA and cases), and analyses its significance for the fact scenario and your view on the outcome of the case.

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Given the word limit, be realistic about how many key points you intend to make in your essay. It is generally better to develop fewer ideas in a deeper way than to cover more content, but superficially.

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Endeavour to go beyond just recounting or reporting on the critical literature in your own argument so that you can demonstrate some critique of it with respect to your own argument.

Formal requirements 

Word limit – 2500 (there is no +/- 10%). Short footnotes including references to cases or legislation don’t count towards the word limit. However, you shouldn’t include any substantive content in your footnotes. o Problem – to reflect the mark allocation, you should use approx. 1600 words for the problem. o Essay – to reflect the mark allocation, you should use approx. 900 words for the essay.

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Presentation: o Any clear font except Times New Roman o Size 12 (or 14 if a small font) o Double space o Word doc or pdf o Indicate words taken for the problem, for the essay and in total on the front page o No cover sheet required as submission through Turnitin in itself is an academic honesty declaration

Referencing 

Footnoting – AGLC4: see here for an excellent summary guide: https://guides.library.uwa.edu.au/ld.php?content_id=47129160 and here for the full guide: https://law.unimelb.edu.au/mulr/aglc/australian-guide-to-legal-citation-v4.pdf

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Footnoting – example: see the end of this handout.

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In most situations, locate references to cases, legislation and articles in footnotes. This saves words and makes it easier to check sources.

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Set up an abbreviation for Civil Liability Act 2002 (NSW) as follows (for example): o ‘ … therefore, under s 3B Civil Liability Act 2002 (NSW) (‘CLA’), the legislation applies to this scenario.’ o Don’t ‘double-reference’, ie if you have provided citation details in the body of your answer, there is no need to provide a footnote also. As above, I generally recommend putting references in footnotes.

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Bibliography – if your references consist of cases referred to in SVW, sections of the CLA and articles set for reading, there is no need for a separate bibliography. While there shouldn’t be a need to use materials beyond those anyway, if you do, you will need a bibliography.

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Footnoting/writing style – example VERSION 1 Lucia is owed a duty of care. Lucia, who was having a break on the casino’s roof, saw the helicopter crash in which Jonas was flying. She was already very scared of flying because she was in a plane crash as a child and therefore is not a person of normal fortitude. She ends up suffering from PTSD after seeing the accident. According to s 32(1) of the Civil Liability Act 2002 (NSW),1 a defendant does not owe a duty of care to a plaintiff to take care not to cause them mental harm unless a person of normal fortitude, in the circumstances of the case, which are described in s 32(2) CLA,2 might experience a recognised psychiatric illness, as required under s 31 CLA, if reasonable care were not taken. [I am continuing to write3 so that I can demonstrate further points about using footnotes in your writing.4] COMPARE WITH: VERSION 2 Lucia’s childhood experiences around fear of flying might have made her into a person without normal fortitude.5 However, under the Civil Liability Act 2002 (NSW) Part 3 (‘CLA’), this will not preclude the defendant from owing her a duty of care to take care not to cause mental harm in the form of a recognised psychiatric illness,6 in the circumstances of the case.7 This is because a person of normal fortitude might nevertheless experience recognised mental harm, such as PTSD,8 as a result of witnessing such a helicopter accident at first hand. Given that Lucia was shocked by the suddenness of the crash,9 that the scene of the accident was visible to her,10 and that she was a casino patron;11 an examination of ‘the circumstances of the case’ as the CLA requires12 suggests the defendant will likely owe Lucia a duty of care. [I am continuing to write13 so that I can demonstrate further points about using footnotes in your writing.14] BEFORE TURNING OVER, WORK OUT WHICH IS THE MORE EFFECTIVE PASSAGE AND WHY, TAKING INTO ACCOUNT THE ADVICE GIVEN ABOVE.

1 Civil Liability Act (2002) NSW s 32(1) (‘CLA’). 2 Ibid s 32(2). 3 Russell Hinchy, Context and Method in Australian Law (Thomson Reuters, 2018) 524 (‘Hinchy’). 4 Carolyn Sappideen, Prue Vines and Penelope Watson, Torts Commentary and Materials (Thomson Reuters, 12th ed, 2016) 728 (‘Sappideen, Vines and Watson’). 5 CLA (n 1) s 32(1). 6 Ibid s 31. 7 Ibid s 32(2). 8 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013). 9 CLA (n 1) s 32(2)(a). 10 Ibid s 32(2)(b), Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 (‘Wicks’) cited in Sappideen, Vines and Watson (n 4) 281. [on the assumption that the case will be referred to in a subsequent footnote; otherwise (‘ Wicks’) can be omitted]. 11 Ibid s 32(2)(d). 12 Ibid s 32(2). 13 Hinchy (n 3). 14 Sappideen, Vines and Watson (n 4) 730.

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Footnoting/writing style – example: COMMENTS

Note that all footnotes 1-14 are correctly formatted. However, in V1, there are a number of other problems to avoid, for example:  The passage starts with a conclusion;  Facts are stated without reference to legal issues or legislation;  There is ‘double referencing’;  Long references to legislation are located in the body. This absorbs words that could be better deployed on having substantive discussion;  The test under s 32(1) is stated without any reference to the facts. By comparison, in V2:  The passage ends with a conclusion;  Through the use of footnotes, the facts and the law are connected;  References to legislation are largely located in footnotes to save words;  The test under s 32(1) is more thoroughly explained and uses facts;  Words saved are used to provide more substance to the answer, ie information about ‘the circumstances of the case’.

Final note: you cannot directly rely on any content or expression used in V1 or V2 above as being apt for use in your own work.

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