Tort law How to answer questions PDF

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How to answer Tort Essay Questions Introduction Problem questions in tort are set to test the extent to which you understand the legal principles on the topics being assessed. As you study the different topics you should remember that problems frequently contain one or more situations giving rise to a claim which may involve a number of potential claimants and defendants. Questions usually require students to 'Advise X or 'Advise the parties’ on their rights or liabilities to enable them to: (1) show their knowledge of the law by identifying the legal issues behind the facts given in the scenario and; (2) demonstrate their understanding of the law by applying the relevant legal principles to the facts in the question and advising on the possible outcomes. Essay questions in tort are one of the main ways of testing that you have a deeper understanding of the subject you are writing about. As you study the different topics you should remember that expressing new ideas in your own words really helps you to develop them and become confident in your understanding. Also, whatever the level of your writing skills, you will find that writing essays helps you to write more effectively and develop communication skills. Whether you are answering a problem or an essay question there are a number of ways in which to ensure that you obtain the full benefit of your knowledge in an exam. Although there is rarely a 'right’ answer to a problem or an essay question, there is a right approach (see below). However, it is important at the outset to read through the exam paper very carefully to ensure that you know what each question is about before deciding which questions to attempt in the exam. The following two key points should help:

Unpack the questions Read through the paper carefully to give you the best possible chance of understanding what each question is about. In the anxiety of exam conditions students sometimes read the questions hurriedly. This can lead to a failure to spot an issue in a question or completely misunderstand what a question is about. Use time effectively Time management is very important in an exam so any time spent reading the questions and planning your answers before you start will help you to: •maximise on your knowledge and understanding of the topics. Remember that even if you have less knowledge than you would like, you are still likely to write better answers if you take a more planned approach in the exam. •allocate your time prudently and avoid spending too much time on any one question

Dealing with a problem question To enable you to spot what a problem question is about from a legal perspective you need to be clear about the key facts of each scenario and identify the parties involved. It is important to remember that advising a particular party will involve a consideration of any legal or policy based arguments which the other party/parties to the dispute may rely on.

How to answer Tort Essay Questions As well as the defendant’s liability, you need to be alert to any facts in the question indicating that one of the defences that may be available to the defendant. Remember, a claimant may be able to establish a claim on the facts of the case but still fail obtain a remedy or have the amount of damages reduced because the defendant is able to establish a defence. Once you have identified the legal issues and noted the relevant legal principles which apply to the questions you choose to answer, you should organise the layout of your answers before you start writing. In planning your answers you should isolate each of the separate issues in the questions you are attempting and deal with each of these issues in turn as you work through your exam paper.

When it comes to advising the parties on their potential rights and liabilities you should note that there is not always a conclusive answer. This is because a firm conclusion about the outcome of a dispute often requires additional factual information or there is uncertainty in the law which makes the outcome impossible to predict. However, there is a right approach to setting out your answer and students often find it helpful to use the IRAC mnemonic in adopting this approach.    

Identify: identify the legal issue/s raised by the problem Rule: define and explain the legal rule and/or legal principle Apply: apply the rule/legal principle to the facts in question Conclusion: conclusion which sums up the advice to the party/parties

Approaching an essay question The law of tort applies to a wide variety of different situations and an essay question will usually require an evaluation of the present state of the law which highlights any areas of ambiguity around the topic. Because essay questions examine the extent to which a student understands the legal principles on the topic being assessed it is vital that the essay title is analysed.

Analysing an essay title •Identify key words •Content related words •Procedure related words – discuss, describe, outline, explain, compare, contrast

As well as enabling you to show your knowledge of the law by identifying the legal issues and policy considerations relating to the essay topic, your understanding is demonstrated by the discussion and argument you make in the essay. Therefore, in setting out the key legal principles and the way in which a specific aspect of the law has developed, you should ensure that you use clear fluent sentences and organised paragraphs.

The essay should show how the law has been interpreted in subsequent cases and any statutory intervention in the area should be discussed. You should note that it is not always lack of knowledge that prevents students achieving the higher grades in essay questions; sometimes lack structure and

How to answer Tort Essay Questions arguments not adequately supported with discussion of the relevant authority or principle are the main problem. Advance planning really helps to produce coherent and well-structured arguments and enables you to draw conclusions. Your concluding paragraph should directly answer the question set and be based on the central arguments explored in your essay. If you have followed an essay plan and have set out your arguments in a logical order there will be no need for a lengthy conclusion.

How to answer Tort Essay Questions Second version -

Tort law is primarily concerned with injuries to people. These injuries may be caused by the actions of other human persons, corporations, governmental entities, and other legal actors. Persons may be injured through direct action, such as a punch in the mouth, or through passive instrumentalities, such as guns or defective products. In answering a tort law examination the student must identity the injured persons, the torts related to these injuries, possible defendants, defences, etc. In tort practice the lawyer must also analyse the cost effectiveness of the litigation. Defendants identified on a torts' examination might not be sued in a real case. This checklist is designed to help analyse fact situations and to develop a written analysis that is suitable for an examination. You should make these lists, not just run through them in your mind. You should outline your answer, write it out, and then REWRITE IT TO ELIMINATE EXCESS VERBIAGE! Remember, brief is not just a form of underwear!

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List the people in the problem. – Identifying the people helps to assure that you do not miss any potential parties. It is more important to identify all the parties than to exhaustively list the torts and miss a party.

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Identify the injured people. This includes the injured persons who have not been named in the problem, such as family members. Every injured person is a potential plaintiff.

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Identify the relationships between the injured persons and all other persons, injured or uninjured. The key to analyzing these relationships is identifying those persons who owed a duty to an injured person. If there is no duty, there can be no tort. For those who owed a duty, determine if they arguably breached the duty, triggering a tort analysis.

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Identify unnamed persons or legal entities who breached a duty to the plaintiff. This analysis is to identify employers, building owners, and others who may have breached a duty to the plaintiff through their own actions or the actions of their agents.

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Identify instrumentalities that contributed to the harm. Was a person injured by a product? Was the product defective? Who manufactured the product, sold it, repaired it, etc.?

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Was the person directly injured or injured as a bystander?

For each situation in which you have identified a possible breached duty, determine if the defendant has an argument as to why he did not owe the plaintiff a duty.

How to answer Tort Essay Questions This is usually an immunity issue, but it may also involved mistaken identify. For example, the plaintiff may mistakenly identify a physician who never had a relationship with the patient.

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For each situation in which you have identified a possible breached duty, determine if the defendant has an argument as to why he did not breach his duty to the plaintiff.

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Determine the theory of causation for each breached duty. Is there but for (proximate) cause? Is this a product theory? Is this substantial factor causation?

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What is the defendant's theory about causation? Are there intervening causes? Were the consequences foreseeable?

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What are the defenses? Is there comparative negligence? Assumption of risk? Misuse of a product? Try to anticipate every possible defence to the tort.

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What are the damages suffered by each injured person? Are the injuries direct or derivative (consortium)? Are they permanent? Are there future wage claims? Medical care costs. Pain and suffering? Etc.? (Second semester!)

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How are the actions of the defendants related Is there joint and several liability?

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Have you presented the strongest torts? Are your theories sound and supported by facts in the problem?

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HAVE YOU FOLLOWED THE INSTRUCTIONS? Have you gone over the word count? Have you ignored instructions limiting the parties or actions to be considered? Did you put your number on each page? Do not forget to turn in the exam!

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Have you checked your answer against your lists of parties and torts and outline? There are always a few exams where major issues are dropped inadvertently....