Discuss APPLICATION TO THE FACTS

In the exam there are three parts:

·         Part A: Case study – long answer response  (15 marks) Torts Law

·         Part B: Case study – long answer response (15 marks) Contract Law

·         Part C: Short answer (30 marks) Australian Legal system & Contract

o   Choose 3 out of 5 questions

Sample Tort case study and solution

Mina is a vegan food enthusiast and is always trying new food inventions. Recently, she travelled to interstate to try alternatives to milk products. She heard from a friend about a store that sold hand-made vegan ice-cream. Mina was excited and went to the store. The store was called “Tim’s Creations”. Mina ordered a large vegan chocolate ice-cream. She could not wait to try it. When she received the delicate creation she dived right in. After two bites, she realised that the ice-cream tasted sour and very off. She complained to the manager, and it turns out that the ice-cream was stale. Mina was very ill after that experience, and is experiencing severe health issues.

Mina comes to you for advice as she wants to sue Tim’s Creations for torts.

            Solution

NOTE THAT THE ANSWER IS IN DOT POINTS FOR SIMPLICITY BUT IN THE EXAM DO NOT WRITE DOT POINTS.

To start off state the plaintiff and defendant: Mina v Tim’s Creations.

Define negligence:

·         Established in the case of Donoghue v Stevenson

·         Negligence involves a harm to done to another that had reasonable foreseeable consequence

There are 4 steps involved in the determining a case of negligence.

STEP 1: DOES THE D HAVE A DUTY OF CARE TO P

·         STATE THE LAW : the test to determine this was stated in D v S: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’

(Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580). This is known as the neighbour test.

·         APPLICATION TO THE FACTS (apply the above law to the facts of the case – this is where the marks are given. So for example, in this case Tim’s Creation should take taken reasonable care to avoid the harm caused by the negligence of the restaurant by failing to check the ingredients expiry dates. )

·         Foreseeability – In order to determine this ask: Would a reasonable person foresee that the defendant’s act could cause damage? D v S.

o   APPLICATION TO FACTS: (Here…)

·         Vulnerability – If the damage was reasonably foreseeable, was there a vulnerable relationship?

o   APPLICATION TO FACTS: (Here…)

 

STEP 2: HAS THE DEFENDANT BREACHED THEIR DUTY OF CARE (A FACTUAL FACTOR)?

·         In determining how a reasonable person would have responded to the foreseeable risk, the courts take into account:

1.    The probability that the harm would occur if care were not taken: Boulton v Stone [1951]

§  APPLICATION TO FACTS: (Here…)

2.    The likely seriousness of the harm: Paris v Stepney Borough Council (1951)

§  APPLICATION TO FACTS: (Here…)

3.    The burden of taking precautions to avoid the risk of harm: Woods v Multi-Sport Holdings Pty Ltd (2002); Roads and Traffic Authority of NSW v Dederer [2007]

§  APPLICATION TO FACTS: (Here…)

4.    The social utility of the activity that caused the harm.

·         The standard of care that is expected is that of the reasonable person:

·         equipped with the same skills and expertise as D,

·         and how he/she would have acted in D’s position

STEP 3: HAS THE PLAINTIFF SUFFERED DAMAGE (A LIMITING FACTOR)?

·         Law: P must suffer some loss or damage as a result of D’s breach of duty (D v S)

·         In order to determine this, we must consider:

1.    Was the loss or damage ‘directly caused’ by D’s breach? (Factual causation)

§  APPLICATION TO FACTS: (Here…)

2.    Is it appropriate for the scope of the negligent person’s liability to extend to the harm so caused? (Scope of liability).

§  APPLICATION TO FACTS: (Here…)

 

STEP 4: WHAT DEFENCES WILL THE DEFENDANT RAISE?

·         Two most common defences can be raised by D:

·         Contributory negligence (CN)

·         Voluntary assumption of risk

·         For example: we can argue the defence of Voluntary assumption of risk (VAR)

a.    P consents to, or voluntarily assumes, the risk of injury

b.    A complete defence

c.    There must also be precise knowledge and full appreciation of the risk

d.    If successfully pleaded, P will not be able to recover anything

·         APPLICATION TO FACTS: (Here…)

 

STEP 5: WHAT WILL THE PLAINTIFF RECOVER?

·         If a defence applies: P’s compensation gets reduced.

·         If CN defence applies: a reduction of compensation by a %

·         If VAR: then 0 compensation

 

Conclusion

·         Come to a conclusion

 

PART B: 15 marks – CONTRACTS

The case in Part B relates to the formation of a contract. So make sure you know the elements of what forms a contract.

In order to satisfy the creation of a contract there must be 4 aspects.

Define: Contract

STEP 1: IS THERE AN AGREEMENT BETWEEN PARTIES

·         LAW:

·         APPLICATION

STEP 2: INTENTION TO CREATE A CONTRACT

·         LAW:

·         APPLICATION

 

STEP 3: CONSIDERATION

·         LAW:

·         APPLICATION

STEP 4: CAPACITY OF PERSONS     

·         LAW:

·         APPLICATION

Conclusion

 

So for each step, you need to know the law and apply that law to the case study, similar to what we did in torts. Make sure you read the slides on moodle for contract law if you are unsure about the law.

 

 

PART C: short answers (30 marks)

There are 5 questions, and you have to choose 3 to answer. So it’s 10 marks per question. Make sure you are aware of theory and are able to explain and discuss a particular topic. In order to achieve optimum marks, a quality and detailed response is expected.

The topic areas that the questions relate to are:

·         Separation of powers

·         Courts/alternatives to courts

·         Native title

 

·         Equitable remedies in contract