Category Archives: LAW

Finally reached the end of Torts… for now!

To change things up a bit, I’ve done a voice recoding for this last entry. The player should be visible just below this text (after have a brief but futile (on my normal file sharing sites part – it is currently not in my good books) argument about whether it would actually share the audio!). There are also two documents – the first is a quasi transcript, and the second is the completed questionnaire for the end of Torts B.

Transcript

Rate Your Confidence

Over the speedbump that is assessment

Now that we are finally at the end of week 10, and the major assessment pieces have now all been submitted, this is a good time to reflect over the past few weeks. There is no denying that teamwork is not challenging, however I have to admit that my partner for this assessment has made this process very enjoyable as we were able to talk things through and come to a common understanding as to how to approach assessment and what the end result would look like. Thus negating the hardest part of this sort of assessment as right from the start we both knew what we wanted the final product to look like.

The first assessment piece was relatively easy as we decided that since it was really an overview or a summary of the second assessment that we would attack the second one, do the all the research and write the script and arguments, and then come back and write the first assessment piece. Meaning the hardest part of the first assessment piece was keeping it succinct yet still understandable.

The second assessment piece was the harder of the two due to the nature, mainly due to the fact that it was a recorded/oral presentation rather than a written assessment piece. And, unsurprisingly, it is easy to write three or four pages of material, and then find out that you can only say two pages of that material in the allotted time. However the approach we took to that was to simply to write arguments out in full and then start the process of culling material once we were sure we had all the material and arguments that we might want to use. Right from the start we used Google Docs which allowed both of us to work on the latest version of the assessment piece at any given time, and also work on the assessment simultaneously making it much easier to work on the assessment when we have a zoom session running at the same time so that we could talk about the material we were working on.

Upon practising and rehearsing the presentation, both of us watched the other presenter and then gave feedback as to how to improve the presentation and what’s elements to keep. For me the hardest aspect was to maintain a good balance between reading the script and still keeping eye contact with the camera (or the bench as it may be). That plus trying to tone down the Italian style hand gestures due to nervousness. 🙂 However that is to be expected since this is the first oral/video submission so far in the program, so hopefully I’ll get some useful feedback on how to improve and move forward. I had two video assessments this term… so that should be… interesting!

I did enjoy the peer review aspect of the second assessment item as it gave me a chance to see how another student had approach the assessment and how well their delivery of the assessment had gone. The challenge in writing the peer review was not knowing the reasoning or the end goal for the student to be in the law program, and trying to tailor the feedback to be beneficial to them rather than just generic feedback. For instance if someone was doing the law only to do in-house law, then the presentation skills may not be so important, instead the quality of the argument would be of importance to them. But then again that’s thinking outside the boundaries of the assessment which was simply to review the presentation and considered the coherency of the arguments, if they were factually correct, and the professionalism and the body language demonstrated in the presentation.

Group work is not a new thing for me, so I simply did what I normally do… try to keep in touch as much as possible, and do what work I can as early as possible so as to not hold the group up. My partner did the same, and it worked well, even considering we both went AWOL at different times during the period, and then resurfaced a week or even two weeks later. Keeping in touch by email and and using a service like Google Docs made this possible and allowed us to be a very effective team. Plus talking everything through first, and working out who was to do what 🙂

If we had more time, we probably would have left the assessment for a few days, and then worked on tightening the arguments and making it all more concise… as I’m sure we said way more than we needed to… and that there are a few bits that didn’t seem to fit properly, and probably became disjointed due to the major culling process, but we really didn’t have time to put it down and come back anew and do a second or more re-writes.

The big picture

Just a quick post as an addendum to the last. The Zoom session this week with Anna, which very much appreciated considering the pain that she must be in… really helped in showing how all the different elements of Negligence fit together. The Prezi that Anna put together is great, and really works through all the different aspects of the negligence topic in depth, and helps you answer the question of ‘is this a negligent act that can be actioned?’. That plus the A4 flowchart that I spotted the other week are excellent. It would have been a bit confusing had I seen that back in week 1-2, but now that we’ve discussed most of the elements, it helps fit them all together.

It would be negligent of me to not mention…

So, in the second instalment of the not so weekly weekly reflective entries on Torts B… we have nearly finished the in-depth discussion of what is negligence, when considered from a legal perspective.

Whilst negligence is made up of three major components, it is hard sometimes to not discuss one when you are supposed to be talking about another. This is because the three elements are hierarchical in nature. So when reviewing a problem question, and intending talk about absence of a breach of duty, sometimes you start talking about duty of care instead, as if you can say there is no duty of care then that duty can’t be breached. But I get ahead of my self.

Negligence boils down to three main points. A duty of care – in other words, a duty to do something. For example, a doctor has a duty to tell their patients of all the risks of a procedure that they are considering undergoing. As does a driver to other road users. But does an employer have a duty of care to an employee when the employee is attending a function that they are not required to attend in the course of them employment? Such as a Christmas function?

Next is breach of duty. Sounds pretty straightforward, doesn’t it? If you owed a duty of care to someone, then if you don’t perform that duty, isn’t that a breach? As usual, nothing is quite that clear cut. For example, if you own a go kart track, and owe a duty of care to patrons to protect them from reasonable harm, if you let them go out without a helmet, and they suffer a serious neck or spinal, have you breached your duty of care? You have to stop and consider what precautions the reasonable person in their situation would have taken. How foreseeable was the harm? If the reasonable person would have worn a helmet, and the harm that was suffered was not reasonably foreseeable, then it is unlikely that it would be found that breach as occurred.

The final element is causation. If you have established that a duty of care was owed, and that duty was breached, was the harm caused by that breach? You can see how this becomes a domino effect. At any point, if you establish that one of the earlier elements couldn’t be substantiated, then there is no need to consider the further elements. However, moving on. If you can established that the breach of duty (for instance, the go kart track doesn’t provide helmets, and the harm was reasonably foreseeable). In that case, you would have to prove that the failure was a necessary condition of the harm – i.e. ‘but for’ the provision of a helmet. The burden of providing protection from that harm must be considered also. And again, that level of harm must have been reasonably foreseeable.

When considering the ‘established’ categories where duty of care are owed, this whilst not being easy, is made easier as it is possible to refer to the criteria that the courts have used when determining these issues. What were it gets tricky is the ‘novel’ or outlier situations, where generic tests have to be used to determine whether someone is liable or not.

Whilst I haven’t had any ‘flashes of inspiration’ during this stage of the course, the whole topic of negligence has started becoming clearer, and the process of working through the assessment problem with my assessment partner has certainly made that more engaging, and more likely to be retained. As usual, at this point of the term with assessment due left right and centre, I am doing the bare minimum of readings, but am still enjoying this subject so far 🙂

Week 1: What a mistake!

contract week 1 word wallThe first weeks material for contracts B has been quite interesting. The way that Anthony presents material is quite entertaining and engaging, thus tends to sink in well. This week’s material covered different types of mistake that pertain to contract law. There were unilateral mistake, common mistake and mutual mistake. Unsurprisingly unilateral mistake refers to a mistake made by one of the parties, and it doesn’t actually matter which the two parties is in error, just that one of the parties did know of the mistake and tried to conceal it from the other.

With a common mistake, both parties must make a mistake and it must be the same mistake, for instance an agreement to go and see a movie in exchange for some service, and then later finding out that the movie is not actually running any more. And for the final type of mistake, mutual mistake, where again both parties must have made a mistake, but it must be a different mistake made by the two parties. For example, if I have two motorbikes and somebody asked me one day if I’m interested in selling my bike, are they referring to the one I am currently using or are they referring to the one that is still in the garage? If they are referring to the one that is in the garage, then I think that they want to buy bike that I’m using, and they think that I wish to sell the one that they saw me on last time which is now in the garage.

The other interesting point in this week’s material is that the common law system has had to balance a very tight tightrope in order to provide some semblance of equity in protecting from some forms of mistake. For instance the general rule of once something is signed it is binding can in fact be thrown out of the window if it can be proved that unilateral mistake as to the nature of the document, which has a couple of elements which have to be validated in order to use this defence.

On to week two’s material, and trying not to read another book by Robert Jordan.

Addendum: Latin phrases and other nonsensical matters

keep-calm-and-learn-latinInstead of editing the prior post, I thought I would add that encounters with elegant Latin phrases (which require immediate lookup in a dictionary!) has begun again already, after completing the reading of the case judgement for Sullivan v Moody (2001) 207 CLR 562 in advance for next week. Namely nolle prosequi (a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit) and inchoate (anticipating or preparatory to a further criminal act). You have to love the prose of these judges… complex but still elegant, and also quite confusing at first read! And I wonder if the phrase ‘foreseeability of harm is not sufficient to give rise to a duty of care’ is a indication what of one of the elements of negligence will be in tort law…

Back to the grindstone

Some words from law, specifically tort law

Some words from law, specifically tort law

So, Term 2 is upon me… and it’s back to the textbooks and long case judgements. I couldn’t find any cartoons that I liked to compliment this post, so instead I made the Wordle word cloud on the left.

The main goal for Torts B will the to consolidate and refresh what I learnt in Term 1, and integrate the new content that will be covered in this course to hopefully come up with a more complete view of what Tort law feels and smells like, and how it fits into the whole system. We’ve already looked at the underpinning concepts such as the primary goal of compensation for the infringement of legal rights, along with the secondary aims of vindication, corrective justice and loss spreading (among others). There has been a focus on some of the different torts that can be ‘breached’ and more will be covered in this term. I look forward to the further discussion on the aims of tort,damages and torts actions that are the focus of this term. The bulk of this term is negligence, so I thought I would get this first post on the road, in order to not be negligent in my duties as a student!

Finally, to answer the focus question for this first entry, I suppose the most significant thing is that I have developed a good system – I try to be organised, plan out the term, keep notes regularly, and make sure that I participate in the weekly collaborative sessions and generally daily on the forums.

Week 11: Damage is… complicated and end of term wrap up

This the final entry for this subject as it is now the end of term, and this reflective journal series is due for submission. As a consequence, this entry focuses on any observed changes in diary entries and a general evaluation of learning over the course of the term.

One observed change is the change from the first & second entries, and subsequent entries. I finally took on board the intention of the assessment, which was to be a self-evaluation, rather than a parroting back of the course materials, and anything that I particularly may have found of interest. During the Introduction to Law subject, that was the style of the self-evaluation that I wrote, which appears to be what that course wanted. For this subject, I instead have tried to evaluate my own learning, using the prompt questions that Anna provided as the basis for the posts.

I have also become a little more active on the forum than in the past, trying to help others when they are stuck, and also in order to clarify my own understanding of topics, which has lead to some interesting discussion. I have also enjoyed reading some posts that people have put up about how they have interpreted cases, other interesting cases they have found, and any revelations they have had where the ‘penny’ had finally dropped. I had a few of those moments, like when I finally realised the correlations between assault and battery in common low and assault and battery in Queensland statue (helps if you open your eyes and *look* at the document Anna posted – it was colour coded for a reason! 🙂 That is probably the biggest revelation for me… most of the rest of the time it was simply reading the material repeatedly, reading a couple of cases or looking for another explanation until the rationale or operation of the tort finally sunk in…

Over the course of the term I got much better at finding cases, and am pleased to admit there are very few cases that have eluded me – and I think those were available on other subscriber databases only, or required money I wasn’t going to part with to access. I finally realised how the Westlaw citation search worked… you only need to put the ‘155 CLR 1’ bit in… don’t bother with the year, and don’t include the title – and it invariably comes back with just the case you are looking for – if they have it. I became more familiar with LexisNexis and BAILII too, when looking for UK cases or journal articles.

I also have migrated to reading hard-copy case judgements – usually I just skimmed a downloaded copy on the screen, but now I print off the more interesting or more important cases, so I can litter them with highlights… Also good for reading of a morning when warming up in the sun 🙂 The only area I let slip was competition of tutorial questions – for some of the earlier questions I drafted full responses, but in later weeks only looked at the questions and thought of possible responses, or only did superficial responses. And I didn’t post any to the forum, so I intend to improve on that next term.

605815-1420-33And for a brief look at this weeks topic of ‘Damages’, firstly, it was really good of Anna to organise a guest speaker to come in for the session. Although it was repetitive since we had just learnt the material, that in itself was good – more times the better – and she also explained how in practise in applied, not just in theory. There was talk of how you have to do different things at different times due to statutory obligations and limitation periods, and how it is important to find other (was it public liability?) cases similar to yours in order to join them in order to get the best outcome for your client – as this can overcome some of the limitations of statues such as workers compensation. I thought that damages would be relatively easy to determine – after all, it is compensation for damage suffered, isn’t it? Which is the root of the problem… the saying of ‘one persons junk is another’s treasure’ is a good analogy here. What value does a person put on the damage/harm/infringement-of-rights that they have suffered? What is reasonable? And how does that affect them going into the future? These are the sorts of questions that need to be considered amongst others when determining the damages that are awarded to someone (either as compensation or as a deterrent or simply an acknowledgement of the infringement).

Finally, attached is the second Student Questionnaire in order to compare my responses to this with the one I completed back in Week 1. Let me make it easy for you… there is little change. I was pretty confident of my skills and abilities coming into the course (perhaps a little too much – so the initial one might have been higher than it should have been), but I am happy with my progress, and look forward to sharpening my skills on my second helping of Torts next term. Now to go conduct more extensive research… perhaps some more How to Get Away with Murder and Suits?

How am I expected to get any work done?

Have just finished writing the last of my entries for Torts A (which will be released tomorrow morning), and thought I had to put this picture up. Seriously, I should have listed ‘Worzel’ as one of my barriers or challenges for Torts A at the start of the term – she insists on sleeping ‘on’ my notes or textbook, or sitting on the table in front of the computer monitor… making it a bit hard to read! She has her own half of the table on her blanket… but do you think that is good enough for her?!

This is where worzel belongs

This is where worzel belongs

This is where Worzel sleeps and distracts

This is where Worzel sleeps and distracts

Week 9: Assessment is a Nuisance

Since this entry is mostly focusing on the completion of Assignment 2, and since I have already received feedback for this assignment at the time of writing this, firstly I like to say is once again Anna has provided excellent feedback.

But I digress, on completing Assignment 2 my thoughts with the following. The hardest part of this assignment was identifying all of the minor issues, and trying to work out what the interaction between the minor and the main issues were. In doing so this made the structure of the assignment very messy, as I probably focused on the minor issues too much instead of dispatching them with one or two sentences. In the initial reading of the scenario I was able to easily identify the major issues of each scenario, and the first two scenarios were fairly straightforward, but the last scenario was the most convoluted, and as such caused the most grief.

Unlike some prior assignments, I did not do multiple drafts for this one, so doing a second draft may have improved this however that we have required more time. I generally look at the criteria sheets at the commencement of assessment, and as such doing the self assessment was not new for me as I will generally work with the criteria in mind and also have a good idea after submitting the assignment what mark I am likely to get. If I had more time to work on the assignment, I would have gone the self-evaluation a day or so after completing the assignment rather than on the night of the completion, as I felt that having that fresh look at the assignment would have resulted in slightly more critical evaluation, similar to the comments that the marker made. This then may have resulted in structural changes to the assessment depending on remaining time.

However all things considered I am sufficiently happy with the quality of the material that I submitted, and really appreciate the feedback that was provided, considering I know that Anna was not well at the time, and was under a lot of stress trying to mark and return everyone’s assignments on time.

Regarding the course materials from modules eight and nine, I found the nuisance topic to be fairly straightforward, although I was not previously aware of the distinction between private nuisance and public nuisance, although the rationale behind these two categories makes sense. My only gripe with the nuisance subject area would be how courts consider “coming to the nuisance” resulting in an action not being able to be pursued. Simply because you are unaware of the nuisance should not preclude you in being able to be compensated or for the nuisance to be prevented when you do become aware of it. However I suppose this is a delicate balancing act, as to what is reasonable awareness and what is not reasonable.

I was familiar with the concept of vicarious liability and how businesses try to avoid that through the engagement of independent contractors, although I had just did not know by that name. When I was working as a trainer at a registered training organisation (RTO), even though I was employed by the RTO to provide training, any mistakes or shortcomings in the training provided ultimately came back to bite me as I had signed it off, and I could be held responsible for those omissions. This naturally did not prevent the RTO from being vicariously liable, it just meant that one or another it would come back to haunt me. Hence the copious amounts of checks, double checks and triple checks and ensuring all the ‘i’ are  dotted  and the ‘t’s crossed!

Right, enough of this boring stuff… time for a picture! 🙂

nuisance-cartoon