LWB138 Sem2 QUT Law Faculty 2006 PDF

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2006 all semester torts criminal law...

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LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

Fundamentals of Torts

LWB138 Study Guide Semester 2, 2006

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

© QUT Faculty of Law 2006

Study Guide Semester 2, 2006

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INSERT SEMESTER CALENDAR

LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

TABLE OF CONTENTS TABLE OF CONTENTS.............................................................................................1 INTRODUCTORY GUIDE........................................................................................3 Part A: Unit Information.............................................................................................4 1. Unit Overview........................................................................................................... 4 2. Objectives of this Unit............................................................................................... 4 3. Content...................................................................................................................... 5 4. Teaching and Learning Approaches........................................................................... 6 5. Skills Developed...................................................................................................... 11 6. Online Delivery....................................................................................................... 12 7. Assessment.............................................................................................................. 15 8. External Attendance School..................................................................................... 33 9. Use of Study Guide.................................................................................................. 33 10. Texts and References............................................................................................... 35 11. Study Hints and Tips................................................................................................ 35 12. Timetable................................................................................................................. 36 13. Teaching Staff.......................................................................................................... 37 PART B: FACULTY POLICIES..............................................................................38 STUDY GUIDE..........................................................................................................39 PART I: Introduction to Torts and Legal Interviewing.........................................40 SECTION 1: General Principles including the Function of the Law of Torts.....41 SECTION 2: Legal Interviewing..............................................................................45 PART II: Trespass.....................................................................................................52 SECTION 1: Trespass to Person..............................................................................53 SECTION 2: Trespass to Land................................................................................57 SECTION 3: Trespass to Personal Property...........................................................60 SECTION 4: Defences to Trespass..........................................................................65 PART III: Negligence................................................................................................68 SECTION 1: Introduction and Duty of Care.........................................................69 SECTION 2: Standard of Care and Breach of Duty of Care...............................72 SECTION 3: Damage...............................................................................................76 SECTION 4: Defences to Negligence......................................................................81 PART IV: No Fault Compensation Schemes..........................................................85 Workers’ Compensation and Rehabilitation Act 2003 (Qld).....................................86 TUTORIAL PREPARATION MATERIALS..........................................................92 Semester Week 1............................................................................................................... 93 Semester Week 2............................................................................................................... 93 Semester Week 3............................................................................................................... 94 Semester Week 4............................................................................................................... 95 Semester Week 5............................................................................................................... 96 Semester Weeks 6 and 7.................................................................................................... 97 Semester Week 8............................................................................................................... 98 Semester Week 9............................................................................................................... 99

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

Semester Week 10........................................................................................................... 100 Semester Week 11........................................................................................................... 101 Semester Week 12........................................................................................................... 103 Semester Week 13........................................................................................................... 104

APPENDICES..........................................................................................................106 APPENDIX 1: Examples of Past Examination Questions..................................107 APPENDIX 2: Extract from Chay and Smith, Legal Interviewing in Practice........115

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

INTRODUCTORY GUIDE

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

Part A: Unit Information 1.

Unit Overview

As a tertiary student studying Fundamentals of Torts, you are studying, not only to achieve the short term goal of a degree, but also to develop life long learning and study skills and the graduate abilities and skills which will serve you throughout your professional career. Therefore you will be responsible, in part, for your own learning and mastery of the unit materials. To assist you in your studies, the torts teaching team has compiled this Study Guide, which has been designed to assist you in gaining the greatest possible knowledge and understanding of the fundamentals of the law of torts. The guide is also designed to guide you through the unit so that you know what is expected of you and how you can maximise your performance in the unit. The Introductory Guide section of the study guide should be read in conjunction with the Student Information Handbook. The Introductory Guide contains information relating to the administration and teaching of the unit as a whole. It is important for your success in the unit to be totally familiar with the matters contained in this Introductory Guide. It is also important that you read the notices which appear on the unit’s online site when you receive an e-mail that a notice has been posted. This is your responsibility! We suggest that you read the study guide carefully and use it as a tool to direct and assist your studies in Fundamentals of Torts. On behalf of the Fundamentals of Torts teaching team, we wish you every success in your tertiary studies. As you progress through your study of the law of torts we hope you find your learning of the unit materials and skills as stimulating and enjoyable as do we who are teaching them.

Amanda Stickley Unit Coordinator

2.

Objectives of this Unit

The law of torts is fundamental to an understanding of how the Australian legal system operates to compensate the physical and/or financial harm one person suffers as a result of another’s wrongdoing. Almost all Law Schools and most professional admission authorities share this common view of the fundamental nature of this category of civil wrongs.

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

At the completion of this unit you should be able to: 1. demonstrate a structured knowledge and understanding of the operation of the law of torts and of the principles and rules relevant to the torts of trespass and negligence; 2. extract principles and rules from primary legal sources and as a consequence demonstrate an understanding of the history and interrelationship of these primary sources; 3. analyse a problem situation and identify and apply the legal principles and rules relevant to the resolution of the problem situation; 4. critically appreciate the dynamic nature of the law of torts and how it has developed in response to social, economic and political changes; and 5.

demonstrate a basic level of skills relevant to life-long learning and professional practice, including: time management skills; skills in using information technology; and written and oral communication skills, in particular, legal interviewing skills.

3.

Content

Today, the most significant area of torts law is that of negligence which is also the most commonly litigated. A large number of negligence actions arise out of motor vehicle, work-related and similar types of accidents. Consequently, approximately one half of this unit is devoted to the study of the negligence action and the balance of the unit is devoted to the study of trespass. In examining each of these torts, you will be required to examine not only the elements and defences constituting the specific tort but also the historical, socio-economic and political factors which have influenced the manner in which these torts have developed and the way in which they may develop in the future. Particular attention will be given to the impact of legislation on negligence actions arising from motor vehicle and workplace accidents. Consistent with the LLB and unit objectives, however, the unit content is not solely concerned with your development of a knowledge and understanding of the substantive law of torts and its processes. The unit is also concerned with assisting you to develop skills relevant to the practice of law and to professional life generally. These skills are discussed in more detail at [5] below. The unit approaches to teaching and learning discussed below are designed to enhance student development of these skills in the context of the teaching and learning of the substantive law of torts and its processes. Similarly, the unit assessment strategy is concerned with ensuring that students have achieved acceptable levels of skill development and knowledge and understanding of the substantive law of torts and its processes. In this unit particular emphasis will be placed on the development of interviewing skills.

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

4.

Teaching and Learning Approaches

4.1

Lectures

Study Guide Semester 2, 2006

There is a two-hour lecture timetabled for weeks 1-4 and 7-11 of the unit. The lectures will also be streamed as described below. In the lectures you will be given information that develops those areas set down in the section of the Study Guide for that week. This information will assist you in your preparation for the tutorials. It is suggested that you are familiar with the material specified for each week’s session before you attend the lecture. This will assist you in getting the most benefit from the lecture. In Fundamentals of Torts the lectures are supported by the use of PowerPoint Presentations. The presentations should be available prior to the lecture and many students find it useful to bring a copy of the slides with them to the lecture. These slides are available under the Unit Materials PowerPoint Lecture Slides link on the unit’s on-line site. In the weeks in which no lectures are timetabled, materials will be available on the unit’s on-line site to guide your readings. These materials are additional to the readings set by the Study Guide and will assist you in your preparation for the tutorials. 

Tapes and Streaming of Audio Content

All lectures in this unit will be audio-streamed. Details of how to access the lectures in this format will be provided on the online site which can be accessed at: . If you are an external student, we strongly recommended that you take advantage of the lecture streaming and listen to the lectures on a regular basis rather than attempting to ‘catch up’ at the end of the semester. 4.2

Tutorials

One-hour tutorials have been timetabled for each week of the unit commencing in week 2. Preparation for tutorials will include reading the prescribed materials and asterisked cases and attempting the tutorial problems. Tutorial topics are arranged so that they relate to the topics covered in the previous week’s lecture. However, time constraints may prevent all the problems and exercises set for each week being covered. You should use those not covered for private study purposes. Externals have access to a streamed version of the weekly tutorials. These will be placed on the OLT each week. We strongly recommend that you attempt the tutorials each week rather than attempting to ‘catch up’ at the end of the semester.

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LWB138 Fundamentals of Torts

4.3

Study Guide Semester 2, 2006

Torts Student Peer Mentor Sessions

The torts student peer mentor sessions have been organised by the Law School to help you to obtain the best possible assessment results in the unit LWB138. The peer mentor sessions are timetabled around the lectures and tutorials and you may attend a peer mentor session either before or after your tutorial, depending upon your personal timetable. Whilst attendance is not compulsory, in the peer mentor sessions you will have an additional opportunity to increase your understanding of the law of torts and to practise assessment tasks. Most importantly, attending the torts student peer sessions will give you feedback on how you are progressing through the unit materials and give you the opportunity to maximise your assessment results. Students studying the first year substantive law unit, Fundamentals of Torts, are often surprised by the high standard expected by the Law School. Many students do not learn this until after they receive their results for their first piece of assessment, the legal interviewing exercise (worth 25% in total of your final result). The student peer mentor sessions assist you to be prepared to achieve at this higher standard before you receive your first set of assessment results. Who are the student peer mentors? The torts student peer mentors are latter year law students who have already successfully completed the two torts units, Fundamentals of Torts and Select Issues in Torts. This usually means they have received at least a grade 5 for the units. The peer mentors have volunteered to run the peer mentor sessions and receive ongoing training and support from the coordinators of the program – Frances McGlone and Tracey Carver – to ensure that the sessions are an efficient and valuable learning experience for those students who attend the sessions. The peer mentors, being themselves students, understand the many time pressures faced by students and are therefore able to share with you the various strategies they have found useful in becoming a successful law student. A previous student peer mentor has written the following about the program: I called the meetings ‘private study done in a group’ and believe they are a forum for private study with one vital difference. In the peer mentor meetings, an individual can harness not only his or her own knowledge but that of the collective pool provided by the group. I found that using this pool of student knowledge resulted in more efficient learning with the students gaining a deeper understanding of the law. To cover the same material without the peer mentor group meetings would take more time and the quality of the work would generally not be as good … I saw benefits from the mentor program that went further than just improving the learning of the law. The program fostered cooperative study, promoted communication and expanded social circles. The benefits have also extended beyond the peer mentor meetings themselves. Informal groups of students who participated in the program are now working together in other subjects and using a similar approach to that used in the groups.1

Successful 2006 torts students will be offered the opportunity to become torts student peer mentors in 2007.

1 B White, “Student Peer Mentor Program: A Mentor’s Perspective”, (1996) 12 QUTLJ 221 at 222-3

© QUT Faculty of Law 2006

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LWB138 Fundamentals of Torts

Study Guide Semester 2, 2006

What happens in the student peer mentor sessions? The student peer mentor sessions are different from lectures and tutorials because what happens in the sessions is determined by the students who attend the sessions. However, to ensure that no time is wasted, the student peer mentors are provided with a resources book which contains a variety of tasks, such as past examination questions and other learning resources, which may form the basis of the group learning activities which take place in the peer mentor sessions. For example, in the first of the student peer mentor sessions in week 2 of the semester, the peer mentors will be discussing how to effectively study in this, and the other first year substantive law unit, Contracts A. They will also discuss how studying for these units is different from the other two first year units Legal Institutions and Method, and Law, Society and Justice. In doing so the peer mentors will help you work through the following problem, not with a view to identifying the correct answer – you will not have covered the relevant law in any detail yet – but instead with the objective of identifying what are, and are not, relevant facts and identifying the relevant legal issues. Andrew lives at 39 Friday St, Brisbane, and has a deep seated hatred of cats. This is partially because his 10 year old son, Ben, is allergic to cats which cause him to have severe asthma attacks. Nancy lives at 41 Friday Street, Brisbane where she keeps about a dozen cats as pets. Andrew has had many arguments with his neighbour Nancy about her cats coming into his backyard. Last week Andrew found one of Nancy’s cats in his back yard on seven different occasions and chased it back into Nancy’s yard on each occasion. After the seventh time, Andrew rang Nancy and told her that the next time he found one of her cats in his backyard he would shoot it. Two days later, Andrew went into his backyard to find one of Nancy’s cats, a Persian cross called Sooty, in his backyard. He rushed inside and grabbed his son’s air-rifle, but before he got back outside Sooty had raced back into Nancy’s yard and was sitting on her garage roof. Nevertheless, Andrew shot at the cat and, surprising both himself and Sooty, hit the cat which promptly died as a result of the bullet lodging in its brain. Andrew has decided to pretend the incident had never happened ...