Blog Archives

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 🙂

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.