JD Academic Mentoring – Problem Questions

Tuesday 25th March 2014Presenters: Callum Davidson, Aleks Miller, Chris

Burch

How are law assignments different?• No need for emotive language• Clear and to the point• No need to say more than you absolutely have

to• Stricter and clearer structure• Engaging with sources closer • The word count is tight!

• This helps you write concisely• It won’t go away – submissions to the

Supreme Court are limited to 4 pages!

Problem Questions

• Using the law to resolve the issue at hand

• Provision of legal advice to the characters in the question

• Not just retelling what the law is – you need to use the law and come to a conclusion

• No need for an introduction or conclusion (unless you have words to spare)

I – IssueR – RuleA – Application C – Conclusion

I – IssueR – RuleA – Application Bulk of answer

C – Conclusion

I – IssueR – RuleA – Application Bulk of answer

C – Conclusion one or two sentences

RuleThe approach we must take in analysing the question of breach of duty is governed by s5B of the Civil Liability Act 2002 and s 5 (4) of the Occupiers Liability Act. Firstly, we must establish whether the relevant risk was foreseeable, that is, “a risk of which the [defendant] knew or ought to have known and which is “not insignificant” contemplating plaintiffs, in the relevant class of persons, who take reasonable care The relevant risk here is the risk of the lighting grid falling.

Application

You will hear your lecturers say, “work with the facts”, but what

does this mean?

It is arguable that an ordinary teenager taking reasonable care over their own safety would not jump onto a grid suspended 5 meters off the ground, causing it to fall. However, minors participating in such activities are not unheard of. An ordinary teenager taking reasonable care over their own safety may engage in conduct causing the grid to sway, such as pushing it, which doesn’t involve jumping onto it. However, to decide whether this would suggest that the risk was foreseeable, more evidence would be required to adduce whether the grid was in arm’s reach from the stalls. On the evidence available, it is most probable that the risk here would not be considered one of which AMG ought to have known as the risk is not associated with the ordinary use of the concert hall or the lighting grid, but with behaviour which goes beyond mere carelessness

It can be argued that, as AMG was responsible for ensuring that the venue was safe for the intended invitees (teenagers, many of whom were under 16), it had responsibility to ensure that potentially dangerous, antisocial and/or intoxicated individuals were not permitted onto the venue. However, AMG was not under a statutory obligation to control violent/antisocial behaviour. The decision in Adeels Palace Pty Ltd v Moubarak was largely based on the consideration of not placing an unreasonable burden on the defendant, a salient feature. As the defendant in that case was already under a statutory obligation to control violent/disorderly behaviour, being a licenced premises, extending its liability to common law would not increase the overall burden on it.

Application - Comparing Facts of Cases

Here, however, to impose on AMG a duty to control antisocial behaviour would increase the burden on them unreasonably. To control it effectively they would possibly need to do background checks on those buying tickets, observe the behaviour of those entering the venue and perhaps refusing entry for some, checking all entrants for possession of drugs and monitoring the behaviour of invitees during the concert and all other concerts AMG operate. This would require an unreasonable amount of resources and expenses.

If comparing multiple cases to the facts, think about which case is most

similar

Conclusion • Best to conclude each part as you go – e.g. “It is most

probable that a duty was owed to Jessica”• At end you should briefly state the practical consequences

for the party you are advisingo In the contract law context this could be “ A does not

need to pay the $1000 to B”o It may be relevant to mention other options available

to the parties e.g. mediation or negotiation since court action has its setbacks (of course it depends on what the question is asking you to do, your assignment only asks you do advise whether there is a contract)

Word Count Tips• Get rid of all unnecessary words – Do you really

need that adjective? Do you really need that “however” or “therefore”?

• Think of other, shorter, ways to say what you want to say

• But don’t cut out words so much that the sentence starts to mean something else or becomes grammatically incorrect (according to lecturers this happens a lot)

Referencing • Unless otherwise stated, use the Australian Guide

to Legal Citation• Copies are available in the Law Library• PDF is available from the Melbourne Law School

website • You can find it easily through the Blackstone

Website: http://blackstone.asn.au/aglc-referencing-guide/

• Blackstone’s Education Handbook also links you to the Law Library’s Tutorial on using the AGLC:

http://blackstone.asn.au/education-handbook/