Rubric - Problem Solving Task
Rubric - Problem Solving Task
Rubric - Problem Solving Task
Criteria Ratings Pts
This criterion is linked to a learning outcomeIdentification of Legal Issues * 6Pts
HD HIghThe student has comprehensively identified all the legal problems that need to addressed. The issues have been set out with clarity and precision. 5.4Pts
HD - Medium
The student has comprehensively identified most of the legal problems that need to addressed. The issues have been set out with clarity and precision. 4.8Pts
HD - Low
The student has comprehensively identified most of the legal problems that need to addressed. 4.5Pts
D
The student has comprehensively identified the majority of the legal problems that need to addressed. The issues have been set out with clarity and precision. 4.13Pts
Credit - High
The student has substantially identified the legal problems that need to addressed. The issues have been generally set out with clarity and precision. 3.76Pts
CR - Low
The student has identified the most important legal problems that need to addressed. 3.53Pts
PA - High
The student has identified some of the legal problems that need to addressed. Generally, these have been set out clearly. 3Pts
Pass - Low
The student has identified some of the legal problems that need to addressed. 2.4Pts
NN - High
The student has identified relevant legal issues to a limited degree. 1.8Pts
NN - Low
Few relevant legal issues have been identified. 0Pts
Not present
The relevant area of law has not been identified.
6pts
This criterion is linked to a learning outcomeIdentification of Legal Rules * 6Pts
HD HIghThe student has comprehensively identified all the legal rules and principles, and the source of authority is correctly given. The rules have been set out with clarity and precision. 5.4Pts
HD - Medium
The student has comprehensively identified most of the legal rules and principles, and the source of authority is correctly given. The rules have been set out with clarity and precision. 4.8Pts
HD - Low
The student has comprehensively identified most of the legal rules and principles, and the source of authority is correctly given. 4.5Pts
D
The student has comprehensively identified most of the legal rules and principles, and the source of authority is generally correct. 4.13Pts
Credit - High
The student has substantially identified relevant legal rules and principles. 3.75Pts
CR - Low
The student has identified the most important legal rules that are relevant. 3.53Pts
PA - High
The student has identified some of the legal rules that are relevant. Generally, these have been set out clearly. 3Pts
Pass - Low
The student has identified some of the legal rules that are relevant. 2.4Pts
NN - High
The student has identified relevant legal rules to a limited degree. 1.8Pts
NN - Low
A few relevant legal rules have been identified. 0Pts
Not present
The relevant area of law has not been identified.
6pts
This criterion is linked to a learning outcomeAnalysis & Argument * 16Pts
HD
The discussion is a clear and comprehensive analysis of the relevant legal principles and their application to the problem facts. Arguments are persuasive and contrary arguments are anticipated to an outstanding degree. 14.4Pts
HD - Medium
The discussion is a clear and comprehensive analysis of the relevant legal principles and their application to the problem facts. Arguments are persuasive and contrary arguments are anticipated to a high degree. 12.8Pts
HD - Low
The discussion is a clear and comprehensive analysis of the relevant legal principles and their application to the problem facts. Arguments are persuasive and contrary arguments are anticipated. 12Pts
DI
The discussion is generally a clear and comprehensive analysis of the relevant legal principles and their application to the problem facts. Arguments are persuasive and contrary arguments may be anticipated. 11Pts
CR - High
The discussion is a good analysis of the relevant legal principles and their application to the problem facts. Arguments are generally persuasive and contrary arguments may be anticipated. 10Pts
CR - Low
The discussion is a satisfactory analysis of the relevant legal principles and their application to the problem facts. Arguments are generally persuasive and contrary arguments may be anticipated. 9.5Pts
PA - High
The discussion is a partial analysis of the most important relevant legal principles and their application to the problem facts. 8Pts
PA - Low
The submission is mainly descriptive with little analysis of issues; basic argument is unclear or undeveloped or not well supported. There is some reference to relevant material. 7Pts
NN - High
The submission is mainly descriptive with little analysis of issues; basic argument is unclear or undeveloped. There may be confusion or misunderstanding. 6Pts
NN - Medium
The submission is descriptive with little analysis or argument. There is confusion or misunderstanding. 4Pts
NN - Low
Insufficient analysis, argument is lacking or unsound, failure to use relevant materials, or use of materials may indicate confusion or misunderstanding 0Pts
Not present
Analysis s lacking or unsound.
16pts
This criterion is linked to a learning outcomeConclusion * 3Pts
HD HIghThe conclusion is well supported by arguments in the analysis section and clearly explains how those arguments address the legal issues to an outstanding degree. 2.7Pts
HD - Medium
The conclusion is well supported by arguments in the analysis section and clearly explains how those arguments address the legal issues to a high degree. 2.4Pts
HD - Low
The conclusion is well supported by arguments in the analysis section and clearly explains how those arguments address the legal issues. 2.25Pts
D
The conclusion is well supported by arguments in the analysis section and explains how those arguments address the legal issues to some degree. 2.07Pts
Credit - High
The conclusion is supported by arguments in the analysis section to some degree. The conclusion partially explains how those arguments address the legal issues. 1.88Pts
CR - Low
The conclusion is supported by some of the arguments in the analysis section. The conclusion partially explains how those arguments address the legal issues. 1.77Pts
PA - High
The conclusion partially explains how the analysis addresses the legal issues, but is not clear or is incomplete. 1.5Pts
Pass - Low
The conclusion is supported by some of the arguments but does not explain how they address the issue. 1.2Pts
NN - High
The conclusion is poorly supported by the arguments and does not explain how they address the issue. 0.9Pts
NN - Low
The conclusion is not supported. 0Pts
Not present
The conclusion is not stated.
3pts
This criterion is linked to a learning outcomeReferencing (AGLC) * 3Pts
HD - High
Full and accurate citation of authorities and sources according to AGLC referencing style. 2.7Pts
HD - Medium
Full and accurate citation of authorities and sources according to AGLC referencing style with an occasional error. 2.4Pts
HD - Low
Citation of authorities and sources is generally accurate and mostly complete, according to AGLC referencing style. 2.2Pts
D
Citation of authorities and sources is partially accurate and complete, according to AGLC referencing style. 2Pts
CR
Some referencing present but contains regular errors. Generally consistent with AGLC referencing style. 1.8Pts
PA
Sources have been referenced to some degree, but may be inconsistent with AGLC referencing style. 1.2Pts
NN - High
Limited referencing present, contains regular errors and may be inconsistent with AGLC referencing style. 0.75Pts
NN
Limited referencing with frequent errors.
3pts
This criterion is linked to a learning outcomeWriting Style and Language * 3Pts
HD - High
Writer has clear and engaging personal writing style. The writer is proficient in expression, grammar, spelling and punctuation. No errors in spelling or grammar are present. Work is logically structured. 2.7Pts
HD - Medium
Writer has clear and engaging personal writing style. The writer is proficient in expression, grammar, spelling and punctuation. Very few errors in spelling or grammar are present. Work is logically structured. 2.4Pts
HD - Low
Writer has clear and engaging personal writing style. The writer is proficient in expression, grammar, spelling and punctuation. Some errors in spelling or grammar are present. Work is logically structured. 2.2Pts
D
Writer has clear and engaging personal writing style. The writer is proficient in expression, grammar, spelling and punctuation. Work is logically structured. Occasional minor flaws in expression, grammar, spelling or punctuation but meaning can generally be understood. 2Pts
CR
Submission has a coherent structure & organisation with occasional deficiencies and is well written. There may be some flaws in expression, grammar, spelling or punctuation, but the meaning can be understood. 1.8Pts
PA
Some defects in structure and organisation are present; writing may be difficult to follow in parts. Flaws in expression, grammar, spelling or punctuation are present. Meaning is sometimes ambiguos or hard to follow. 1.2Pts
NN - High
Structure and organisation incoherent or lacking; submission is poorly written and may be difficult to follow. Frequent or repeated flaws in expression, grammar, spelling or punctuation. Meaning is sometimes clear. 0.75Pts
NN
Submission has frequent or repeated flaws in expression, grammar, spelling or punctuation. Meaning is often unclear.
3pts
This criterion is linked to a learning outcomePresentation * 3Pts
HD - High
Work is neatly laid out and formatted with a professional appearance. Paragraphs contain one idea only and are logically linked. Headings are used appropriately to aid readability. Submission is logically structured. The layout is appropriate for the required document. 2.7Pts
HD - Medium
Work is neatly laid out and formatted with a professional appearance. Paragraphs contain one idea only and are logically linked. Headings are used appropriately to aid readability. Submission is logically structured. The layout is appropriate for the required document. There may be an occasional error. 2.4Pts
HD - Low
Work is neatly laid out and formatted with a professional appearance. Paragraphs generally contain one idea only and are logically linked. Headings are mostly used appropriately to aid readability. Submission is logically structured. The layout is appropriate for the required document. There may be an occasional error. 2.2Pts
D
Work is neatly laid out and formatted. Paragraphs generally contain one idea only and are logically linked. Headings are mostly used appropriately to aid readability. Submission is logically structured. The layout is generally appropriate for the required document. There may be an occasional error. 2Pts
CR
Work is neatly laid out and formatted. Headings are mostly used appropriately to aid readability. Submission is logically structured to some extent. The layout is generally appropriate for the required document. There may be an occasional error. 1.8Pts
PA
Work is neatly laid out and formatted. Headings are mostly used appropriately to aid readability. Submission is logically structured to some extent. 1.2Pts
NN - High
There may be some defects in structure and organisation. Work may have an untidy appearance 0.75Pts
NN
Structure and organisation incoherent or lacking; inappropriate use of paragraphs.
3pts
Total points:40
6850379-448945BREACH GIVES RIGHT TO TERMINATE CONTRACT AND CLAIM DAMAGES
00BREACH GIVES RIGHT TO TERMINATE CONTRACT AND CLAIM DAMAGES
10382253800474010287009906001809754667250CLAUSE HAS NO CONTRACTUAL EFFECT
CLAUSE HAS NO CONTRACTUAL EFFECT
66960754400550BREACH GIVES RIGHT TO CLAIM DAMAGES ONLY
00BREACH GIVES RIGHT TO CLAIM DAMAGES ONLY
28575-523875BEGIN TO ANALYSE CLAUSE
BEGIN TO ANALYSE CLAUSE
773620516129000
-171450314960IS CLAUSE A TERM OR REPRESENTATION?
00IS CLAUSE A TERM OR REPRESENTATION?
6572250257809IS TERM A CONDITION OR WARRANTY?
00IS TERM A CONDITION OR WARRANTY?
CONDITION
386715110160CLASSIFY TERM:
EXPRESS?
IMPLIED?
WRITTEN?
00CLASSIFY TERM:
EXPRESS?
IMPLIED?
WRITTEN?
568642510541003076575191135TERM
76885802292350
WARRANTY
REPRESENTATION
37623753686174NO
00NO
36957001476375NO
00NO
476244448175EC NOT INCORPORATED IN CONTRACT
00EC NOT INCORPORATED IN CONTRACT
54482993486150YES
00YES
54292513809990060483752238375EC INCORPORATED IN CONTRACT
00EC INCORPORATED IN CONTRACT
53721012581275YES
00YES
21240754772025NO
00NO
323850219075BEGIN
00BEGIN
2019300400050030099004314825NOTIFIED BY PRIOR DEALINGS?
00NOTIFIED BY PRIOR DEALINGS?
29241752124075REASONABLE NOTICE OF EC?
00REASONABLE NOTICE OF EC?
2886075-238125EXCLUSION CLAUSE IN SIGNED DOC?
00EXCLUSION CLAUSE IN SIGNED DOC?
YES
Problem Duty of Care
Question
Prinz owns and operates the Highgate Shopping Centre in country Victoria. The Centre has an anchor supermarket and various mixed retail outlets. It has a rooftop car park. The lease agreement between the retail outlets and Prinz states that the Centre will close to customers at 9.30 pm and the parking lot lights will be extinguished at 10 pm. Prinz is dealing with three unfortunate incidents that have recently occurred:
Prinz left out a collection of rubbish on the pavement (foot path) outside his house for the council to collect. A young man passing by, Max cut his hand while investigating the contents of the rubbish pile.
A customer Tom was walking down the stairs from the Centres car park when he touched a handrail that had accidentally not been correctly grounded. Tom received a minor electric shock that caused him to fall down the stairs.
A retail tenant Jody stayed in her shop until after 10 pm, dealing with various minor matters. By the time she exited the Centre, the car park lights had been extinguished. She used her mobile to find her way to her car, but unfortunately she was attacked by unknown assailants. Serious criminal activity has never previously occurred at the Centre.
Required: Discuss whether Prinz owes a duty of care (DoC) to Max, Tom and Jody. Refer to relevant case law in your answer. Use IRAC to structure your answer.
Answer
Issue
The legal issues are
whether Prinz owes a duty of care to Max, Tom and Jody
what is the content of that duty, if there is a duty owed
Rules:
Reasonable foreseeability - You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question: Donoghue v Stevenson [1932] AC 562
Salient features: Sullivan v Moody [2001] HCA 59. These are factors to be taken into account when determining the existence of a DoC:
Need for coherency in the law precedent
Conflicting DoCs patient v parent?
Possibility of indeterminate liability when does DoC end?
Control the D has over the situation & vulnerability of the P
Relative knowledge & experience of parties
Type of the harm suffered & moral issues
Need for personal responsibility (eg drunk cases)
Occupiers of premises owe a duty of care to take reasonable care for the safety of a person who enters the premises, irrespective of whether they have been invited or are a trespasser: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
The DoC of occupiers of land does not extend to taking reasonable care to prevent physical injury resulting from the criminal behaviour of third parties: Modbury Triangle Shopping Centre Pty Limited v Anzil Anor (2000) 176 ALR 411.
Application and Conclusion
The neighbour principle established in Donoghue v Stevenson is often regarded as no more than a simple test of reasonable foreseeability (RF) of harm, and therefore is inadequate as a sole determinant or formula to be applied when establishing a duty. The proximity theory has been abandoned by the High Court and is no longer the law in Australia. Therefore, the most important test is the salient features test for novel situations.
However, most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood (precedent categories).
Max
This does not fall into the category of an existing relationship. In assessing whether Prinz owed a duty to Max, we can conclude that it is RF that passers by will be interested in waste left on footpaths. However, we need to apply the salient features test. The nature of the harm suffered by poking about in rubbish is generally
not severe. Max does not appear to be vulnerable. If home owners were responsible for every action of passers by, it would result in extensive and unworkable liability for the public. There is also a need for people to take responsibility for their own actions, a pile of rubbish presents a hazard that Max has chosen to investigate. On this basis, Prinz did not owe Max a duty of care: Sullivan v Moody
Tom
That Prinz, as an occupier of land owes a duty of care to a person lawfully upon the property is not in doubt. It is clear that Prinz owed Tom a duty in relation to the physical state and condition of the car park handrail, particularly in relation to safety: Australian Safeway Stores Pty Ltd v Zaluzna.
Jody
The point of debate here is not whether Prinz owed Jody a DoC in relation to his role as the occupier of premises. The question here is what is the content of that duty. In general, the basis of the duty which Prinz, as occupier, owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises. Prinz had no control over the behaviour of the assailants who attacked Jody, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them. The inference that they would have been deterred by lighting in the car park is questionable. There is no general duty to control anothers actions to prevent harm by strangers: Modbury. Moreover, Jody would have been aware as a tenant when the lights were extinguished: personal responsibility. The notion that occupiers duties would extend so wide raises questions of indeterminate liability for occupiers (CAL No 14), nor was Jody vulnerable. Extending the duty might also raise the risk of incoherency of the law in relation to contract. Thus Prinz did not owe Jody a DoC to prevent attack by strangers.
left-149860Does D owe P a DUTY of care (DoC)?
Existing category OR
Reasonable foreseeability AND
Salient features (Sullivan v Moody)
00Does D owe P a DUTY of care (DoC)?
Existing category OR
Reasonable foreseeability AND
Salient features (Sullivan v Moody)
5079365-226060ACTION FAILS
00ACTION FAILS
372681531115NO
00NO
158369134925Y
00Y
31115167640Was there a BREACH of DoC by D?
Probability of harm: Bolton v Stone
Gravity of injury: Paris v Stepney BC
Burden of taking precautions: Latimer v AEC
Social utility of Ds activity: Watt v Hertfordshire CC
See factors in s 48(2) Wrongs Act 1958
00Was there a BREACH of DoC by D?
Probability of harm: Bolton v Stone
Gravity of injury: Paris v Stepney BC
Burden of taking precautions: Latimer v AEC
Social utility of Ds activity: Watt v Hertfordshire CC
See factors in s 48(2) Wrongs Act 1958
5114925162560ACTION FAILS
00ACTION FAILS
367919033020NO
00NO
36957002028190NO
00NO
52101751618615ACTION FAILS
00ACTION FAILS
156464016510Y
00Y
left35560Has P suffered DAMAGE/HARM (loss/injury) as a RESULT of the breach of duty by D?
Causation
but for: March v StramareIntervening causes
Remoteness (reasonably foreseeable, not far-fetched or fanciful): Wagon Mound
00Has P suffered DAMAGE/HARM (loss/injury) as a RESULT of the breach of duty by D?
Causation
but for: March v StramareIntervening causes
Remoteness (reasonably foreseeable, not far-fetched or fanciful): Wagon Mound
4803140161290What will P recover?
D liable in full for Ds damages
eggshell skull rule might apply
0What will P recover?
D liable in full for Ds damages
eggshell skull rule might apply
1717040123190Y
00Y
left151129Does D have any defences?
00Does D have any defences?
4031614113030NO
00NO
245999035560YES
00YES
left73025Contributory negligence (did P contribute to injury by failing to take reasonable care?)
Manley v Alexander, Ingram v Britton
S 26 Wrongs Act 1958
00Contributory negligence (did P contribute to injury by failing to take reasonable care?)
Manley v Alexander, Ingram v Britton
S 26 Wrongs Act 1958
45745406350Voluntary assumption of risk VAR
Did P fully understand and accept risk
Very strict defence (rarely succeeds)
S 54 Wrongs Act 1958
00Voluntary assumption of risk VAR
Did P fully understand and accept risk
Very strict defence (rarely succeeds)
S 54 Wrongs Act 1958
305054152705Obvious risk, Recreational activities
00Obvious risk, Recreational activities
562229022860Y
00Y
119253051435Y
00Y
464121512700What will P recover?
Complete defence so P will not recover anything
0What will P recover?
Complete defence so P will not recover anything
5969012700What will P recover?
Ps damages will be reduced proportionately by amount of allocation of fault
0What will P recover?
Ps damages will be reduced proportionately by amount of allocation of fault
