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! 🙂
Now that I have received feedback for my first assignment, I now have some sort of metric in order to gauge my understanding of the materials thus far. Considering I achieved a score of 90% on the assessment, it appears I have done something right! Anna’s feedback for the assessment was excellent. Instead of just commenting where I have done something wrong, she highlights what I have done right, and also makes suggestions as to improvements. From the marking I can clearly see where I have responded correctly or identified the key aspects, and can also see where I could have used more authoritative cases or may not have discussed the topic has in-depth as I could have. I do like however where to one question, where I responded completely differently to the model/suggested response, Anna still allowed the answer as it is simply one of those questions were it is a matter of interpretation and the argument that you present. Although as she says, the argument that I presented may be negated by other words and actions as demonstrated in the answer guide that she provided. And I have to admit that I had not read that section of the material as completely as I probably should have, so was unaware of that at the time.
I cannot fault the feedback provided by Anna, and have no issues or concerns with it. Based on the feedback I would hope that I will continue to demonstrate a sound understanding material, considering the fact that later assessments are usually more complicated and challenging.
So far in this course I have found the lecture videos recorded by Anna to be an excellent introduction into the week’s material. I then read the study notes for the week, and sometimes the case summaries or the actual case judgements for cases of interest. I usually read or skim the set chapters from the textbook as well-it depends on how much time I have and how well I feel I understand the concepts. I have also found the LexisNexis Torts book from their study guide series (citation below) to be very informative and always read the relevant chapter from that book as it provides a very concise coverage of the torts rationale and implementation, and also has very concise case summaries of relevant cases.
In relation to using caselaw better or more efficiently in my studies, I started to collect the case judgements and the AGLC citation for the more authoritative or interesting cases as I go, as well attaching keywords and notes for future reference, and storing them all in Endnote, in order to start building my own reference library for later use. I found this very beneficial when staying to work on the second assignment as I no longer had to go searching through the different legal database sites for a case, and was able to simply search my own collection. I can also include any digests, case notes or the actual case judgement when available. It is also good to be able to add my own notes as to key points of the cases. It also makes referencing very easy later on as I do not have to construct the citation again!
This is just a brief entry to discuss the completion of the first assignment for the subject. On completing the first assessment, I felt quite comfortable in my grasp of the concepts covered thus far. The assignment focuses primarily on the international torts to person of assault, battery and false imprisonment. I have some reservations in response to one question to do with whether a case of assault can be raised, but I played devil’s advocate and based my response on the presumption of reasonable person in his circumstances.
At least I think I answered multiple choice questions for this subject better than I did for my other subject – I managed to get two questions wrong, and I should have known better. In fact I knew one of them was wrong soon as I saw them afterwards, must’ve clicked on the wrong response.
I don’t think I made any previous mistakes in this assessment, so I don’t feel that there is much room for improvement at this point in time. Probably the only thing I could do better or improve on would be to start to read a little more widely, in order to get a better understanding as to the rationale used by the judiciary. Apart from that I’m quite happy with my response and my progress thus far in the course.
Now that I’m at the end of week five, the focus has changed to the intentional torts which includes assault, battery, false imprisonment and trespass (to goods and land). Assault, battery and false imprisonment went too hard to understand. The most confusing thing with assault and battery was the overlap with Queensland statute (namely the criminal code act). Once I was able to understand how the statue interacted with the common law definitions of assault and of battery it mostly made sense. But that was back at week three, it is now two weeks later and I am very confused about some things, again.
Trespass to goods made enough sense when I read it first, until you get the section where they talk about bailment. At this point it gets a little bit confusing with the bailment exception, but I think I have a handle on it now, as it is to do with possessory rights rather than with ownership. Conversion and detinue are straightforward enough-the former is to do with changing of state and/or dealing in a manner as if you were the owner, and detinue is to do with a positive refusal to return a good when it is not actually yours. I like the fact that if you were to pursue conversion and detinue, it may not end up the way that you wish it to. If you want to the good returned to you, you would pursue detinue, however if you pursue conversion simultaneously you may not actually get the good return to you.
Trespass to land is straightforward enough, although it does have its own peculiarities or quirks. For instance the requirement for intent or the extent of the license for entry must be made explicitly clear, otherwise interaction with other torts such as trespass to goods, conversion and detinue becomes quite murky.
I’m doing a combined post for weeks two and three of Contract A for two reasons. The first reason is the catch up, as I am week behind in my reflections, and also because this subject appears to be very straight forward and just “makes sense”. This is in part due to the easy to follow flowcharts provided for each week of material, and also due to the very literal nature of contracts. With contract law it appears to be simply a matter of applying the rules of contract theory.
Understandably factors that contribute to contract include mental capacity and intoxication, but the rules surrounding minors/age can be challenging at times. Partly this is due to the subjective test of “what is a necessity”. Unlike the more understandable necessities such as food, shelter and clothing, necessity is in relation to contracts also include what is necessary for the individuals station in life. However want you can get your head around this concept, the remainder of contract theory related to capacity is very straightforward. The party is a minor you simply have to consider if the contract is for a good or service, or is the contract for employment or education. Answering yes to the majority of the questions related to these two broad areas results in a binding contract. If the party is not minor but is instead intoxicated and the other party knows this or should know is this, then the contract is voidable. And if the person is a bankrupt or prisoner than some special rules apply, mainly related to delegation of authority. The word voidable is used to refer to a state were the individual in question, once they have regained their mental faculties or have become of legal age to make a contract, has the option of ratifying (agreeing to be bound by) or repudiating (declining to be bound by) the contract.
The next consideration when determining if a contract exists is if the agreement is a social, commercial or a so-called “special” agreement. A social agreement is usually made between friends family, and the presumption is there is no intent to create legal relations. A commercial agreement is typically made between business entities, and the presumption is that that is intent to create legal relations between the parties. However these are not absolutes, there are many instances in which a situation that would normally be considered a social contract is in fact a commercial contract, and vice versa. This is when the circumstances of the agreement rebut the presumption that is normally made. For example in a commercial contract the use of a “honour clause” can rebut the presumption that there was intent to create legal relations. Finally the so-called “special” agreements. This class of agreements refers to those made with a government or government agency, or agreement that is actually a preliminary agreement for a later contract. For these agreements a special set of questions are asked to identify if legal relations have or have not been created between the parties.
This week’s material was the start of looking at intentional torts to person. This can be also called trespass to persons or intentional torts to persons. For this area is broken into two main groups: Trespass and Case. Trespass occurs when a direct and immediate action is involved whereas Case applies when the act is indirect. The classic example of this is a log on a road. If the defendant throws a log and it hits the plaintive whilst on a highway then this would be considered Trespass. If however the log was on the highway and the plaintive drove into the log, this would be Case.
The remainder of this week’s material considered three other forms of trespass: those of assault, battery and false imprisonment. Where assault refers to one person deliberately creating an apprehension of imminent harm, battery is where one person correctly and intentionally brings about harmful or offensive contact and false imprisonment is the direct and intentional confinement of one person within an area limited by the other.
Probably the most challenging aspect of this material was considering when was a situation considered assault, as opposed to harassment or stalking or some other wrongdoing. And compounding this is the difference in Queensland where under section 245 of the Criminal Code Act 1899, the statutory definition of assault also incorporates the common law definition of battery. And as a result civil actions in Queensland of battery would then use the criminal code definition of assault. This definition does also bring with it a change in the type of force required, adding to this definition “indirect force”. It also brings with it some defences such as self-defence and provocation, which make a instance of battery legally justifiable under those circumstances.
I enjoyed attempting a response to the additional problem question question that was set for this week, as well as reading through other people’s interpretations and responses to the tutorial questions this week.
This is just a brief post to fill in the gap between the introduction of the concepts of tort and the start of consideration of intentional torts to persons. The Topic 2 material focused on changes in legislation in the 2002-2003 period which mainly instigated due to the alleged insurance crisis, which may not have been the crisis it was made out to be due to media hype. However there is no denying that a review of the tort compensation system was required due to how inefficient the system had become and the fine line been trodden as to what was considered fault.
I found the material very interesting, especially the mention of the fact that Australia had been considering a no fault statutory compensation scheme, similar to that currently implemented in New Zealand back in 1974. This would have been a national scheme, similar to a number of systems/schemes that were being implemented by the government that was in power at the time (i.e. Medibank/Medicare, free University). With the statutory compensation schemes that we have today the nearest to this system is the National Disability Insurance Scheme (NDIS), which is still in the process of being rolled out as I write this. Alternately across the states we have motor accident schemes, criminal injuries compensation, workers compensation, and Social Security. However each of these compensation schemes is implemented differently by each state and jurisdiction, and the requirements, level of compensation and intricacies of the individual schemes varies for each. However the good thing about these systems is that they provide the public purse to ensure that compensation will be received by successful plaintiffs, and when there is need for periodic payments this requirement can be met by the schemes.
During the readings for this week I would have to say the challenge that I have had to overcome is the preconceptions and bias that I had formed from hearing about the 2002-2003 “insurance crisis” from the media as it happened. This only provided me with part of the picture, which has started to become more fleshed out as a result of this week’s readings. And I suppose as far as any flashes of inspiration the only one that springs to mind is the realisation that the statutory compensation schemes as a whole all appear to be no-fault, and as such this is one of the major benefits they have over accessing of compensation via the tort system.
The first week of this course has being overwhelming – simply with the amount of reading required and the breadth of the topic. Hopefully this will become less daunting as I progress as subject becomes clearer and more concise. It was interesting to find out that tort law is simply the branch of law that primarily focuses on compensation for wrongs. Where it becomes more complex is what is considered to wrong, and also when fault is required or not required. It is quite understandable to see that tort is the opposite of criminal law is a civil branch as opposed to the criminal branch, and as such has different burden of proof etc. I was surprised however to see the overlap between tort and contract, which is convenient since I’m also studying contract law this term.
Without going into new for further unnecessary detail as to the material covered this week I will instead briefly reflect on one of the major areas of tort law, which is negligence. As one of my other colleagues commented in his weekly reflections, I’m very frustrated with the recent rise in “no win no fee” cases by legal firms such as Gordon and Slater or Shine lawyers. The increase in this form of litigation is however merely a reflection of changes in society whereby people no longer seem to hold themselves accountable for their own actions. Instead they seem to look for someone else who has money to blame so that they can then sue them and get money. The fact that this may be part of a much bigger problem is outside of the scope of these reflections, however it is food for thought, as this does still remain a problem that needs to be resolved.
Finally to finish off with, as part of the learning diary that we are required to maintain this course, there was the question of “”how do you learn best?”. My answer to this question would be that I am a kinaesthetic learner, that is I learn best by doing. Whilst for a lot of activities I can be a visual or a auditory learner, for a lot of tasks I best learned by actually undertaking the tasks. It’s for reasons like these that I look forward to opportunities to participate in activities such as moots as these activities will put you on the spot to think on-the-fly and develop arguments and responses, and it’s not until you put in this sort of situation you can fully understand the challenges that they bring with them.
Week one of Contract A has been a very interesting. In this first week of material, there was the explanation of what exactly is a contract and the three major theories behind contract law. There was also an examination of the Australian Consumer Law, which was much needed clean of legislation that existed across the different jurisdictions.
Of the three types of contract law theory (classical, promise, consent) I was most familiar with the concept or idea of the promise theory as on a daily basis this form of contract is the one that we most often enter into. You could also understand the idea of the classical contracts, as it establishes private laws, but it wasn’t the theory that I most readily associated with contracts. And frankly I’m unsure why consent theory even exists as transfer of rights could easily be rolled into promise theory but obviously some more creative minds than mine believe that it is needed so it exists.
I enjoyed reading about the Australian Consumer Law, as it was a much needed refresh of varying state territory and federal legislation. Instead of several pieces of legislation per state which were all different, a single piece of legislation was created as a schedule in the Trade Practices Act at the Commonwealth level and the states and territories then bound themselves to that legislation in their own consumer legislation. As a result regardless of which state or territory you currently live in the warranties and express provisions allowed for in the legislation apply to all states and territories equally. This is beneficial to both the manufacturers and sellers as there is no doubt as to what their requirements are, and consumers have confidence in being able to make a purchase and know that they will be supported by the law if the seller is misleading or deceptive, engages in unconscionable conduct or presents unfair terms in the transaction.
All in all the first week of contract theory has been very engaging and I look forward to next week. I have no idea what Anthony would have thought that this subject would be boring.
This weeks material is the last of the formal study topics for the term. I was glad of this as it was also one of the more convoluted topics, with the links to human rights and international law. It was also the conclusion of the discussions on statutory presumptions, which has been the focus of the last three topics of the course (because this was such a broad topic).
The statutory presumption that legislation will not interfere with fundamental human rights is considered one of the strongest of all statutory presumptions, and as such, still used a lot in recent times. These are manifested through the ‘principle of legality’, and are that;
- Individuals are bound by the law but are otherwise free to determine how they live their lives;
- all individuals enjoy fundamental rights and freedoms;
- government action against an individual should only be according to law;
- laws should not generally be retroactive;
- laws should not apply only to certain groups but to everyone; and
- laws should only be made by a democratically elected legislature
While this statutory presumption is still one of the strongest, and still often used, the historical presumption that statues do not interfere with common law is obviously not longer true, due to the increased amount of legislative law. And the above list is by not means exhaustive, as there are several other rights that are considered fundamental human rights.
If I wasn’t confused enough by exactly how human rights fits into the equation, wait… there’s more! International law needs to be considered. Now, many of these ‘fundamental human rights’ are based on international principles – but that is not of any real importance – it’s just tipping the hat to acknowledge that we’ve adopted a similar approach to the international community. The real reason to consider international law is due to the number of treaties and conventions that Australia has ratified or signed. As a result, we’ve agree be bound by the terms and conditions expressed in the treaty or convention. And while many judges will consider that treaties and conventions are the only sources of international law, there are a few more – there are also international custom and also general principles of law recognised by ‘civilised nations’ . This is where things get a bit murky, as they are a vague source of law.
Probably the last important fact to know about international treaties is how they’re incorporated into the Australian legal system. Australia uses what is known as a ‘dualist approach’, as opposed to a ‘monist approach’. In a monist approach, the treaty would be automatically incorporated into domestic law when the government ratifies the treaty (as happens in the United States). In Australia, the Executive ratifies the treaty, and then the Legislature passes domestic legislation which give it effect. They can either do this by enacted the substance of the treaty in an Act, appending it to an act (in a Schedule), or simply giving executive discretion to the relevant Minister and empowering them to make the necessary changes.
All in all, this is a complicated topic, and I’m glad that I don’t have to deal with it in the near foreseeable future!