Subject Outline Autumn 2021 PDF

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Subject Outline...

Description

SUBJECT OUTLINE 70311 Torts Course area

UTS: Law

Delivery

Autumn 2021; City

Credit points 8cp Requisite(s)

70120c Legal Method and Research OR 70102 Foundations of Law OR 70120c Legal Method and Research OR 70102 Foundations of Law There are also course requisites for this subject. See access conditions.

Result type

Grade and marks

Subject coordinator Michael Thomson Professor, UTS Faculty of Law Email: [email protected]

Teaching staff Tim Paine UTS Faculty of Law Email: [email protected] Anita Stuhmcke UTS Faculty of Law Email: [email protected] Michael Thomson UTS Faculty of Law Email: [email protected]

Subject description The law of torts deals with claims for redress for civil wrongs. Students examine the nature of tortious liability in the light of a selection of specific torts, namely, trespass to the person and land; the action on the case for wilful injuries; negligence and nuisance. Negligence is the most significant tort and it is the primary focus of this subject. Students engage with and develop an understanding of the common law development of doctrine and rules through reading cases. In 2002 and 2003 there were significant legislative reforms to Tort law and the impact of this legislation, in particular the Civil Liability Act 2002 (NSW), and its relationship to the common law is examined. A law of torts subject is required for admission as a legal practitioner in all Australian jurisdictions. This subject is part of the core program for the Bachelor of Laws and Juris Doctor and provides students with foundational knowledge required for more advanced 'private law' subjects in the law degree. Subjects covering areas such as commercial and corporate law, equity and remedies also require a sound knowledge of Tort law as a basis for the legal concepts learned in those subjects.

Subject learning objectives (SLOs) Upon successful completion of this subject students should be able to: 1. Apply selected key concepts of the common law of torts and the Civil Liability Act 2002 (NSW) with reference to the basis of liability, forms of action and interests protected in the law of torts, and the adaptability of Tort law to societal changes. 2. Critically analyse the policy, development and application of the law of torts, making reasoned choices amongst alternatives to develop logical, justifiable and structured arguments, and advice to parties as to the tortious rights and liabilities in specific scenarios. 3. Recognise the perspectives of various stakeholders in selected tort cases and the role of a professional lawyer in advising on claims in Tort law, including evaluation of how lawyers’ ethical duties to clients and courts are addressed with respect to negligence. 4. Apply cases, statute law and secondary sources to generate appropriate written and oral responses to questions of individual rights and liabilities in Tort law, as well as to issues of legal policy and theory. 5. Initiate and complete self-directed learning through engagement with legal materials to prepare for class-based discussion and problem solving; complete self-learning modules and accurately assess their own capabilities and performance of tasks.

Course intended learning outcomes (CILOs) This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes: Legal Knowledge A coherent understanding of fundamental areas of legal knowledge including: a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge; b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;

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c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and d. The principles and values of justice and ethical practices in lawyers’ roles. (LAW.1.1) Critical Analysis and Evaluation A capacity to think critically, strategically and creatively, including the ability to: a. Identify and articulate legal issues in context, including the skill of critical reading and writing; b. Apply reasoning and research to generate appropriate responses; c. Engage in critical analysis and make a reasoned choice amongst alternatives; and d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) Communication Effective and appropriate communication skills including: a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments; b. An ability to communicate to inform, analyse, report and persuade; c. An ability to strategically select an appropriate medium and message; d. An ability to assess how messages are received and alter communication strategies accordingly; and e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) Collaboration Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including: a. An ability to give and receive feedback; b. Appropriate professional and interpersonal skills in working collaboratively; c. A capacity to develop strategies to successfully negotiate group challenges; and d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1) Self management The ability to implement appropriate self-management and lifelong learning strategies including: a. An ability to undertake and initiate self-directed work and learning; b. Well-developed judgment and responsibility as a legal professional in a broader social context; c. The ability to support personal and professional development by: (i). Reflecting on and assessing their own capabilities, wellbeing and performance; (iI). Making use of feedback as appropriate; (iII). Identifying and accessing appropriate resources and assistance; and (iv). Making use of resources and support in developing resilience; and d. A capacity to adapt to and embrace change and a commitment to ongoing learning. (LAW.8.1)

Teaching and learning strategies Strategy 1: Preparatory Reading for Problem Solving Students’ preparation and reflection outside the classroom is central to the learning in this subject, which relies on students familiarising themselves with the substantive law before each class by completing essential reading. This enables collaboration and full engagement in class discussions of the law, and its application to a set problem scenario every week. Materials selected to help you prepare include Tort law cases, statutory provisions, and chapters in prescribed texts and where appropriate journal articles or other secondary materials. The reading required for this 8 credit point subject is substantial (for each week a minimum 50 pages) so students need to ensure they allocate time to ‘make sense’ of the materials for each class and test their understanding by reflecting on and considering their responses to the problem question set for in class discussion each week. The gateway to these materials is Canvas where the Learning Guide and weekly materials are available in the Subject Documents folder. Students are NOT expected to read outside the suggested subject materials. Students will have also the opportunity in class each week to monitor their preparation and level of self-management. Strategy 2: Collaborative Discussion in small group classes Learning takes place in ‘small group’ classes that are active, discussion based and collaborative. Students engage with one another and their teacher in oral discussion of legal principles to synthesise and elaborate upon their prior learning, reading and class preparation. This is where issues and questions from torts readings are addressed collaboratively and substantive law of torts questions considered. We discuss the key cases and statutes in detail, including what the judges have said and get ‘inside’ the law in this area. Students can ask any questions that arose from their reading and get feedback on their developing understanding of Torts law. Students will be required to answer questions in class and to participate usefully in class discussions about the material. Failure to have read and reflected on materials will be detrimental not only to the individual’s learning, but to the group as a whole. Volunteers may be allocated to lead the discussion for the following week. Strategy 3: Collaborative Problem Solving Each week students actively and collaboratively engage in solving a set problem which enables them to apply their reading to factual scenarios. This requires analysis and application of Tort law principles in order to argue a case based on the facts of the problem. Through this process students are able to practise and develop their capacity to identify and articulate legal issues and to think critically, strategically and creatively to provide advice on tortious liability, as they would be required to do in legal practice. Throughout this process of applying substantive law to real world Tort law scenarios we also consider the professional and ethical responsibilities of a litigation lawyer. By the end of this subject students are able to analyse complex problems (complicated facts, multiple plaintiffs, defendants, courses of action and possible defences) and advise each party on their rights and liabilities. Strategy 4: Feedback and Self Assessment 15/02/2021 (Autumn 2021)

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Students have the opportunity in each class to ask questions of the teacher about any aspect of the material under consideration and receive ongoing feedback and guidance as to their progress and level of class participation. By seeking feedback on their developing understanding in classes students are able to develop their capacity to apply the law of torts to increasingly complex problems. At the half-way point in the semester students are asked to self-assess their class participation performance. In response to their self-assessment, students receive written or oral individual feedback on their performance to date from their teacher. This enables them to review and remedy any gaps and to work toward a higher mark for the class participation element of assessment in the subject. Students are also asked to self-assess their essay Students complete an online quiz available on UTS Online. The week 3 quiz provides formative feedback on students’ understanding of the intentional trespass torts addressed in the first 2 weeks of the subject. Although this quiz is not compulsory it is an important part of learning and feedback in Torts. Strategy 5: Independent Learning Two Self Learning Modules have been developed for discrete areas of Tort law relevant to law graduates. The self-learning modules are extensions to the Tort law causes of action covered in class. Classes focus on the fundamental torts of trespass and negligence whereas the self-learning modules deal with torts that provide other remedies. Students will need to study these modules independently and manage their study time over the semester to ensure completion of the modules, bearing in mind that they are assessed in class problem solving exercises and the exam. Self-management strategies and independent learning are crucial to continuing development as legal professionals and in this subject students will develop strategies to proactively manage their time. Self-directed work and learning, judgment, responsibility and self assessment are the specific skills which students practice as they prepare for each class and work through the self learning modules. This requirement for pre-preparation and self-instruction mirrors the requirements legal practice. The modules form part of class discussion where relevant to the weekly problem under consideration. There are opportunities for students to ask questions to test their understanding of the self-learning materials during class time and the problems discussed in class will raise issues that are dealt with in the self-learning material. Students are NOT expected to read outside the subject materials included in the Self Learning Module notes. Subject Delivery In Autumn 2021 this subject will be delivered in a blend of online and on campus activity as follows: All weeks will have a 2 hour online module followed by a 2 hour seminar on campus. However, one group is entirely online. This is for those students who have not yet returned to the jurisdiction or where health issues prevent a return to the campus.

Content (topics) 1.Introduction to Tort law and Trespass to Person: What is a Tort? Trespass to the Person - assault; battery; false imprisonment. 2.Trespass to Land and Defences to Intentional Torts and Wilkinson v Downton 3.Introduction to Negligence: Duty of Care and Public Policy; Legal ethics – lawyers and negligence: the duty to the client. 4. Negligence I Breach of Duty of Care 5. Negligence II Proof & Causation 6. Negligence III Scope of Liability: Remoteness of Damage; Egg Shell Skull Cases 7. Doing Torts Differently: Critical approaches to Tort 8. Negligence IV Defences to Negligence: Contributory Negligence; Voluntary assumption of risk; Civil Liability Act defences including intoxication; dangerous recreational activities; obvious & inherent risks; risk warnings. 9. Negligence V Categories of Duty of Care including Atypical Plaintiffs; Manufacturers; Employers; Motorists; Unborn Children; Rescuers; Occupiers; Mental Harm/psychiatric injury: Part 3 Civil Liability Act 2002 (NSW) 10. Negligence VI Pure Economic Loss: Negligent Acts causing pure economic loss & Negligent Misstatement; Part 4 Civil Liability Act 2002 (NSW) 11.Negligence VIII Strict Liability & Multiple Defendants: Vicarious Liability; Non-Delegable Duties; Concurrent & Proportionate Liability Self-Learning Modules: 1. Nuisance 2. Death Claims

Program Week/Session

Dates

Description

1

22-26 February

Orientation to the Tort Law subject Prepare for the first class by doing the reading and activities detailed in module 1 on Canvas. This includes: 1. Reading: a) Chapter 1, introduction to P Stewart and A Stumkhe, Australian Principles of Tort Law, 4th Edn., (Federation Press, 2017) b) Chapter 1, introduction to The Wrongs of Tort (Pluto Press, 1992) 2. Completing the Avoiding Plagiarism Quiz via the Torts site on UTS Online(NOTE: not completing this Quiz will result in a WITHHELD GRADE for this subject ) 3. Reviewing the current UTS COVID-19 guidance: www.uts.edu.au/coronavirus Preparation for next week's classes: See Module 2 on Canvas.

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2

1-5 March

Introduction to Tort law and Trespass To Person What is a Tort? The Common Law of Tort. Trespass to Person: Assault, Battery & False Imprisonment. Preparation for next week’s classes: See Module 3 on Canvas.

3

8-12 March

Trespass to Land and Defences to Intentional Torts and Wilkinson v Downton Trespass to Land Defences to Intentional Torts: Self-defence; Defence of Another; Consent; Necessity The cause of action for psychiatric injury in Wilkinson v Downton. Independent Learning: Complete Quiz: Trespass to Person; Trespass to Land; Wilkinson v Downton. The Quiz is for you to test your understanding of the topics covered in sessions 1 & 2. Preparation for next week’s classes: See Module 4 on Canvas.

4

15-19 March

Negligence I: Introduction & Duty of Care Duty of Care & Role of Public Policy Legal Ethics; Advocates’ Immunity; Lawyers and Negligence: the duty to the client. Preparation for next week’s classes: See Module 5 on Canvas.

5

22-26 March

Negligence II: Breach of Duty of Care Tort law Reform - Civil Liability Act 2002 (NSW), Part 1A, S 5B Reasonable foreseeable & ‘not insignificant’ risks The ‘calculus of negligence’ Standard of care for professionals. Independent Learning: Complete Self-Learning Topic 1: Nuisance Preparation for next week’s classes: See Module 6 on Canvas. Notes: DUE: SUBMIT CLASS PARTICIPATION SELF-ASSESSMENT FORM to your Lecturer THIS WEEK.

6

29 March - 2 April

Negligence III: Proof & Causation Scope of Liability: Civil Liability Act 2002 (NSW), S 5D, 5E. “But for” test Intervening causation Standard of proof Res ipsa loquitur Preparation for next week’s classes: See Module 7 on Canvas.

R

5 - 9 April

Mid-session StuVac

7

12 - 16 April

Negligence IV Scope of Liability Remoteness of Damage Egg Shell Skull Rule Preparation for next week's classes: See Module 8 on Canvas. Notes: Submit Torts Essay by 6pm Friday 16 April 2021 via TURNITIN

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8

19-23 April

Doing Torts Differently: Critical Approaches to and with Torts Indigenous Rights Environmental Rights & Action Children Preparation for next weeks classes: See Module 9 on Canvas.

9

26-30 April

Negligence V Defences to Negligence Contributory Negligence Voluntary assumption of risk Civil Liability Act Defences including intoxication; dangerous recreational activities; obvious & inherent risks; risk warnings. Preparation for next week’s classes: See Module 10 on Canvas.

10

3-7 May

Negligence VI Categories of Duty of Care Atypical Plaintiffs; manufacturers; employers; motorists; the foetus. Mental Harm/psychiatric injury: Part 3 Civil Liability Act 2002 (NSW) Rescuers; Occupiers. Independent Learning: Complete the Self-Learning Topic 2: Death Claims Preparation for next week’s classes: See Module 11 on Canvas.

11

10-14 May

Negligence VII Pure Economic Loss Negligent Misstatement Negligent acts causing pure economic loss Part 4 Civil Liability Act 2002 (NSW): Proportionate Liability Preparation for next week’s classes: Reading as per Learning Guide for session 11. Preparation for next week’s classes: See Module 12 on Canvas. Notes: .

12

17-21 May

Negligence IX: Strict Liability; Multiple Defendants Vicarious Liability Independent Contractors & Non-Delegable Duties of Care Concurrent Liability Contribution amongst Tortfeasors Joint & Several Liability AND Proportionate Liability Independent Learning: Complete the Self-Learning Topic 3: Statutory Authorities Review: Past exam questions with notes are available to assist with your revision and exam preparation in the ‘Subject Documents’ folder on Canvas.

Assessment Assessment task 1: Participation in Online and Class Activities Intent:

The value placed on this assessment task emphasises the importance of consistent and active class participation based on your preparation.

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Objective(s): This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.6.1 and LAW.8.1 Weight:

15%

Task:

For this ongoing task you must prepare in advance for each class where learning is active, discussion based and collaborative. There are two components that you will be assessed on: A: Students engage with one another and their teacher in discussion of legal principles to synthesise and elaborate upon their prior learning, read...