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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

Week 7: Feedback and remedies

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.

Iremedies_cropn 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!

Week 5: Assessment

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.

Week 5: Intentional Torts

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.

Week 3: Intentional Torts to Person

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.

Weeks 2: Legislative reforms and statutory compensation schemes

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.

Week 1: Introduction to Torts

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.

Student Questionnaire _Week 1