Problem questions and IRAC PDF

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The law of torts is more than just a set of rules, principles and policies; it is also an ongoing culture of argument, developed to manage the tension between different interests in society. As a torts student you need to supplement your knowledge of the law by mastering this culture of argument.The...

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The law of torts is more than just a set of rules, principles and policies; it is also an ongoing culture of argument, developed to manage the tension between different interests in society. As a torts student you need to supplement your knowledge of the law by mastering this culture of argument. The first part of this presentation will help you understand how to use the basic building blocks of the law (rules, principles and policy) to construct effective legal arguments. The remainder will show you how to structure your legal arguments and apply the law to solve practical legal problems.

Torts and the Culture of Argument Adapted from Chapter 3 ‘Torts Techniques: Legal Argument and Practical Problem Solving’ in J. Davis, M. Rizzi and K. Offer, Connecting with Tort Law (Oxford University Press, 2nd ed 2020)

1. Using rules, principles and policy 1.1 Defining rules, principles and policy Before you can understand the arguments made about the law in cases and construct your own arguments in problem-solving exercises, you need to understand the relationship between rules, principles, policy.

Rules tell us what we should do •

A rule is a categorical and precise precept specifying that a distinct legal effect or consequence must follow upon the existence of prescribed facts.

Principles give us good moral reasons why we should follow the rule •

A principle is a broad formulation of reasons or generalisations, often moral in nature, that underlie and justify particular rules. 1

Policy justifications explain why it might benefit the community to have such a rule •

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Policy reasons provide an alternative justification for legal rules; however, ‘policy’ is one of the most difficult terms to define because judges and academics use the term in inconsistent ways. When judges refer to policy, they may be referring to any of three different things: o ‘policy’ is sometimes based on a moral precept (functions like a ‘principle’). o The term ‘policy’ is sometimes used as a shorthand term for a generally accepted approach to a particular issue that has long been established in previous legislative or judicially made rules (the ‘policy of the law’ or ‘legal policy’). o ‘Policy’ also describes goal-based arguments of a non-ethical kind that seek to justify a rule on the basis that it will achieve a socially or economically desirable consequence or state of affairs that will benefit society at large. In this sense it is known as ‘public policy’.

1.2 What is a rule? A rule is a categorical and precise precept which specifies that a distinct legal effect should follow upon the existence of certain prescribed facts or the drawing of a particular conclusion. So, a legal rule usually takes the following form: if X exists, then legal consequence Y follows. Remember that each time you cite a legal rule you must identify its source (or ‘authority’), which will be either a case or a statute. ✓ Example: If plaintiffs put their land to an abnormally sensitive use, they will not be entitled to relief solely because of that hypersensitivity: Robinson v Kilvert (1889). It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm: s 33, Defamation Act 2005 (Tas). Legal rules are usually formulated in general terms so they can be applied not just to the case at hand but also to other cases in the future. For example, the famous rule of liability laid down in Donoghue v Stevenson (1932) does not mention ginger beer, snails or bottles, but refers more widely to manufacturers of products and their ultimate consumers. Not all legal rules are the same; some are easy to state and apply, whereas others require more work. Below are some of the different kinds of rules that you will encounter in our torts unit. •

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Bright-line rules: They draw a clear and unambiguous line. They are the easiest kind of rules to apply because any given case can only be in or out—there is no zone of uncertainty. ✓ Example: the rule from Cole v Turner (1704) that the least touching of another in anger is a battery. Fuzzy rules: They have an inbuilt uncertainty that makes them more challenging and difficult to apply. They may include ‘fuzzy’ concepts like ‘reasonableness’ or ‘abnormal’ in them. Tort law contains many fuzzy rules, especially the torts of nuisance and negligence. The defences also contain many fuzzy terms. ✓ Example: the remoteness rule from Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (1961) (‘The Wagon Mound (No 1)’), which specifies that only the reasonably foreseeable kinds of damage caused by a breach of duty will be compensable. Complicated rules—or rules with exceptions: They look clear, but require some extra elaboration before you can go ahead and apply them—for example a definition of a special term or the application of an exception. ✓ Example: the law of trespass, where you need to understand the legal meaning of ‘land’ before you can properly apply the rule that forbids trespass to land. 2

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Rules that have been criticised or are out of date: When you are dealing with these rules, you may need to develop an argument based on the underlying principles, purposes or policies to justify a change or refinement in the rule. ✓ Example: the rule in Rylands v Fletcher (1866) that imposed strict liability on an occupier of land for damage caused by the escape of an inherently dangerous substance or thing brought onto the land in the course of a ‘non-natural use’, was abolished in Burnie Port Authority v General Jones Pty Ltd (1994) after it had been criticised for being out of date and no longer compatible with development of the modern law of negligence.

When you are dealing with a practical problem, the first step is to find out whether there is a wellrecognised rule covering your case. ➢ If a rule exists then it should be applied to the facts and your argument should be fairly straightforward. ➢ If no relevant rule exists, or if one does exist but has been criticised or cast into doubt, you need to provide a more complicated argument that focuses directly on the proper state of the law itself—and only then can you turn to consider how it might apply to the facts. ✓ Example: Deceit. In the High Court case of Magill v Magill (2006), the judges had to consider first whether the well-recognised tort of deceit (which had been developed in a business setting) could be used in a purely domestic setting before they could then go ahead and apply the established rules of deceit to the facts of the case. In the torts case of Cattanach v Melchior (2003), Justice Kirby explained that when the law is not clear, further guidance can be found in considerations of legal principle and legal policy.

1.3 What is a principle? A legal rule is only as good as the argument that justifies its existence—and the quality of the reasoning used in that argument. As we saw in the lecture, one of the most common ways of justifying the existence and content of a legal rule is to show how that rule is based on principle. A principle is a broad formulation of reasons or generalisations, often moral in nature, which underlie and justify particular rules. Rules and their principles can be paired together. Examples ✓ The principles of bodily integrity and autonomy justify the rule of battery, which states that no person may touch the body of another without lawful justification. They also justify the rule that consent is a defence to battery and the rule that doctors must respect a competent adult’s refusal of medical treatment. ✓ The famous ‘neighbour principle’ in Donoghue v Stevenson (1932) gave rise to a rule about the liability of manufacturers: o the principle (at 580): You must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour. o the rule (at 599): A manufacturer of products, which he sells in such form as to show that he intends them to reach their ultimate destination in the form in which they left him … and with knowledge that the absence of reasonable care … will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care. The law must be based on principle, but principles on their own are not enough to determine the outcome of a legal dispute. There are two reasons why we need rules as well as principles.

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➢ The first is that principles are pitched at a higher level of abstraction than a rule—they are necessarily vaguer. This contrast between the more detailed nature of rules and the broader nature of principles can be seen in the example from Donoghue v Stevenson (1932), above. ➢ The second and equally important reason is the fact that our ethical principles can often point us in different directions. When this occurs, we have to make a choice between them and settle upon a specific rule to guide our conduct in those tricky situations. Example ✓ A clash between competing principles can be found in the case of Magill v Magill (2006), where the principle of honesty that underpinned the tort of deceit was counterbalanced by the ‘welfare of the child’ principle and the principle of privacy in reproductive and family matters. Arguments at this level of debate are often more complicated than arguments about the application of rules to factual scenarios. They are also more likely to lead to disagreement because principles often come in contradicting pairs, so for each argument there is often a valid and equally compelling counter-argument. Examples ✓ The ‘no liability without fault’ principle can conflict with the counter-principle ‘as between two innocents she who causes the harm must pay’. ✓ The principle of altruism requiring one person to avoid causing foreseeable harm to another may conflict with the principle that people should take personal responsibility to protect themselves from harm. So, you need to understand that, while our system of tort law cannot allow one rule to contradict another rule without risking inconsistency, it does contain principles that can point in different directions and promote competing goods. This feature helps to explain why there is sometimes no obviously ‘right answer’ to a legal question. ✓ Example. The High Court case of Cattanach v Melchior (2003) was closely decided by a 4:3 majority. When you read this case you should try to identify the competing goods that underpinned the arguments made by the minority and majority judges. The community’s reaction to the decision was similarly divided. Cases tend to form clusters of authority on any given issue. So, a case authority specifying a particular formulation of a rule can be described as contrary to principle if it does not fit with the reasoning or the principles found in the wider set of authoritative cases in that area. Furthermore, a new rule may be justified by analysing groups of previous cases and identifying the underlying principle that appears to explain and justify the pattern of past decisions. The choices made by judges should fit into a consistent pattern. Examples ✓ Lord Atkin’s famous judgment in Donoghue v Stevenson (1932) contains an outstanding instance of this method of legal reasoning. ✓ In Breen v Williams (1996), Gaudron and McHugh JJ said at 115: o Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must ‘fit’ within the body of accepted rules and principles. The judges of Australia cannot, so to speak, ‘make it up’ as they go along. It is a serious constitutional mistake to think that the common law courts have authority to ‘provide a solvent’

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for every social, political or economic problem. The role of the common law courts is a far more modest one. In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to reformulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the ‘new’ rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions. Justice requires that like cases should be treated alike. If one principle is favoured over another in one set of legal rules, then this pattern should also be followed in another situation unless it can be distinguished in some morally relevant way. ✓ Example. In the negligence cases of Sullivan v Moody (2001) and Tame v New South Wales (2002), judges refused to impose a duty of care that would have been inconsistent with other duties, principles and remedies existing in another related area of the law, such as defamation. The consistent application of principle is aimed at ensuring that our body of legal rules forms a rational and morally coherent whole. An awareness of the role played by principle and the need for a series of consistent choices between principles will strengthen your understanding of how the law develops and the way that legal arguments are constructed.

1.4 What is policy? Policy-based arguments are generally contrasted with arguments based on principle. Judges and academics sometimes use the terms ‘policy’ and ‘principle’ interchangeably, and Sir Anthony Mason, a former Chief Justice of the High Court, has noted that policy has ‘become a hideously inexact word’ in legal discourse and pointed out that judges ‘have been reticent about the role of policy in judicial decision-making’. •

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Judges sometimes refer to the ‘policy of the law’ or ‘legal policy’ when they appear to be making an argument based on principled moral grounds. However, the label of ‘public policy’ is most often used to refer to arguments that are strictly political or economic in nature. Ronald Dworkin has suggested that policy-based arguments are used to promote collective economic, political or social goals, by contrast with arguments based on principle, which tend to explain how a rule secures an individual’s rights (which are themselves ‘based on justice, fairness or some other dimension of morality’). Some suggested that policy arguments justify a legal decision on the grounds that the proposed rule would ‘secure a desirable state of affairs’ that benefits the community as a whole, rather than the individual parties concerned in the case. As you saw in the lecture, this type of policy argument is often (but not always) seen as properly belonging to the role of legislators rather than judges, whereas the first two kinds of ‘policy’ are more clearly relevant to the judicial role.

The issue of policy will arise most frequently to complicate our discussion of the tort of negligence. Examples of policy-based arguments ✓ Justifying a decision on the basis that it is economically desirable to distribute liability for a particular kind of accident upon a certain group or party. 5

✓ Justifying a decision on the basis that the proposed rule would reduce the number of accidents. ✓ Suggesting that a proposed rule might lead to too many cases coming before the courts thereby creating delay and inefficiency (the ‘floodgates’ argument). ✓ Allowing barristers a special immunity from a suit in negligence because such suits might lead to endless and costly rounds of litigation. ✓ Lord Atkin referred to public health as part of the justification for imposing a duty of care on manufacturers in Donoghue v Stevenson (1932) at 579. You need to be aware that some academics refer generally to ‘legal principles’ as an umbrella term when they discuss the law, whereas others distinguish more precisely between rules and principles. Because of the difficulties associated with the use of the three terms (rules, principles and policy), lawyers, judges and commentators are sometimes tempted to avoid them altogether and use different terminology. o

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So, as well as these three terms mentioned in your reading, you may also find the following terms being used: ‘legal concerns’, ‘legal standards’, ‘legal arguments’, ‘legal or moral norms’, ‘moral standards’, ‘moral values’, ‘common sense’ and ‘aims’. When you read cases you need to make some effort to classify what you find into the categories of rules, principles and policies, but if you become confused, remember you are reading cases primarily to find the relevant law and to understand the steps in the reasoning used by the judge to construct a convincing legal argument, no matter how the law is classified.

1.5 Working with rules, principles and policy in a legal hierarchy You also need to be familiar with the doctrine of precedent and the concepts of ratio decidendi and stare decisis. The term ratio decidendi is notoriously difficult to define, but Osborn’s Concise Law Dictionary (1983) describes it at 278 as ‘the reason or ground of a judicial decision that makes a decision a precedent’. It is often contrasted with the term obiter dictum, which is ‘a saying by the way’ or an observation by a judge that does not form part of the binding precedent laid down in that case. In Legal Technique (2002), Christopher Enright explains that the doctrine of stare decisis requires a later court to follow a precedent established in an earlier case. Enright highlights three aspects of the doctrine: • • •

Courts normally follow their own previous decisions, although they are not bound to do so. Courts must follow the decisions of higher courts within a hierarchy, unless the authority can be distinguished in some way. Higher courts can overrule decisions of lower courts. Where a court is not bound to follow a decision of another court it may still consider it as persuasive.

The term ratio decidendi is less significant when you are analysing the decisions of courts of the highest authority, such as the High Court of Australia or the Supreme Court of the United Kingdom (formerly the House of Lords), where the judges are generally free to change the rules laid down in previous cases. ✓ In these cases, the arguments and the reasoning used to justify the statements of the law are the most important aspects to focus on and the distinction between ratio and obiter is less important. However, if you are reading a case that has been decided by the local courts in your jurisdiction, the distinction would have much more bite, because these courts are all bound by the decisions of those made above them in the hierarchy.

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1.6 Different legal arguments serve different legal goals You should be alert to the themes and issues that appear in torts cases and look out for useful examples of judicial reasoning that you can use in your own arguments on similar issues. As you read the cases, you will begin to recognise that there are different patterns of legal reasoning, and it helps you to understand the arguments if you realise that each kind of legal argument tends to serve a different goal: Arguments

Legal Goals

1. Arguments can be based on a rule set down in an authoritative precedent case.

These arguments promote consistency, fairness, stability and certainty in the law.

2. Arguments can be based on principle.

These arguments allow the law to pursue sound moral grounds.

3. Arguments can be based on policy.

These arguments allow the law to adjust to changing conditions and to achieve useful social, economic or political ends

4. Arguments can be based on custom, tradition, and long-standing practice.

These argu...