commercial law assgnment
PRINCIPLES OF COMMERCIAL LAW
ASSESSMENT TASK 2
DUE DATE: Friday Week 9
TOTAL MARKS: 30 marks (30% of overall assessment)
WORD LIMIT: 2000 words
SUBMISSION: Electronically in Black Board under the Assessment tab. Please include a cover sheet with your name.
Keith is a home handyman who advertises in the local Buderim Bugle as a qualified carpenter, although he has no trade qualifications. Ruth is a homeowner and works as a teacher’s aide at a local school.
Ruth arranges with Keith for him to replace a rotting timber tread on her back stairs. Keith replaces the tread. However, instead of hardwood he uses a piece of left over untreated chipboard. Several weeks later, after several nights of heavy rain, the replaced tread swells and eventually completely collapses overnight. Ruth walks down the back stairs early each morning to feed her caged birds. Ruth takes with her a large number of feeding dishes and other cleaning equipment on the morning following the collapse of the tread. The things Ruth is carrying obscure her vision and she fails to notice the missing tread. She falls heavily downs the stairs dislocating her knee.
Keith called Ruth in the hospital the next morning and he told her how sorry he was that she was injured. Ruth fully recovered after two months. However, she did not return to paid employment. She resigned and decided to stay home for 12 months after the incident to devote her time to unpaid charity work before seeking alternative employment.
Ruth wants to sue Keith in Negligence and to claim 12 months in lost income and punitive damages to punish him for his incompetence.
You are asked to advise Ruth as to her case for Negligence against Keith.
NB: Confine to your answer to discussion of Negligence and Keith’s personal liability. Confine your discussion of defences to that of contributory negligence. Do not consider any other area of law.
The following guidelines are based on a review of common errors made in assignments. Students are asked to read these guidelines carefully as they will be taken into account in marking your papers. Students are also referred to guides to Harvard style referencing available from the bookshop and Student Services.
The information to follow is presented under the headings of:
• Content and analysis
• Structure and style.
CONTENT AND ANALYSIS
The content (or coverage of the topic) and analysis of your answer are assessed according to two general assessment criteria for legal analysis. These are:
• Demonstration of a knowledge of the law, assessed according to accurate statement of legal principles
• Demonstration of an understanding of the law, assessed according to logical and coherent application of legal principles to the facts.
The following guidelines stem from the assessment criteria stated above:
• It is not enough to discuss the facts in a general way without reference to legal principle/s.
• It is not enough to state relevant legal principles without explicitly applying those principles to the facts.
• Statements of legal requirements/ principles must be accurate. Use of your own words is encouraged but must convey the substance (meaning of) the legal principle/s.
• Merely reproducing the facts given in the problem will not attract marks. This problem commonly occurs in written introductions, where it would appear that the writer is not sure where to start.
• Answers should include be structured according to an introduction, analysis and conclusion (but preferably should NOT include these as headings).
• The introduction should contain statements of:
• The legal terms given to the relevant parties on the facts
• The nature of the action to be taken by the party advised
• The party who must prove the action (burden of proof)
• The relevant standard of proof
• The elements of the action requiring proof.
• The analysis should contain statements of:
• The elements requiring proof (from the legislation) and interpretation of those elements (from case authorities as appropriate)
• An application of the legal requirements (elements) and their interpretation to the facts in question
• A consideration of legal remedies available to the injured party should the action be proven.
• The conclusion should contain:
• A summary of previous discussion and conclusion as to the likelihood of proof of the action. No new material should be included in this part of an answer.
• Accurate and full reference to cases and legislation must be used (see further below).
STRUCTURE AND STYLE
The following guidelines reflect the requirements of formal academic writing generally and those more specifically relevant to law.
• Executive summaries should NOT be included.
• Headings may be used.
• Headings mirroring IRAC (ie the words issue, rule, application, conclusion...etc) should NOT be used.
• Headings should reflect the legal issues raised by the problem and hence can be the legal elements requiring proof.
• Avoid abbreviations- eg use ‘has not’ instead of ‘hasn’t’.
• Avoid informal language- eg use ‘Therefore..’ instead of ‘So..’ or ‘Well..’.
• Avoid use of emotive language- eg use ‘I argue.., “I would argue..’, ‘I assert.., or ‘I contend..’ instead of ‘I believe..’, ‘I feel..’ or even ‘I think..’.
• Be mindful that legal analysis is about logical argument based on principles as applied to the facts and not about personal responses - emotional or value-laden.
• Avoid use of ‘slang’ (or poor grammar generally)- eg use ‘should have’ instead of ‘should of’.
• An opinion may be stated but must be based upon an application of legal principle to the facts.
• Check spelling and grammar; use the spell and grammar checks available on computer.
• Full sentences, containing a subject, verb and object must be used.
• When beginning a sentence with a reference to a section of legislation use ‘Section..”
• When referring to a section of legislation mid-sentence use ‘s…’.
• When referring to a court’s finding or judgement use, for example, ‘It was held in that case that..’ or ‘The court held that..’(Note third person and past tense used).
• When first referred to in a sentence cite legislation in full, and the full name of cases plus the year of reporting.. For example;
• It was found in Smith v Jones (1986) 5 CLR 98 that..
• Section 67 of the Town Planning Act 1987 (Cth) requires that…
• Subsequent references may be summarised or truncated to, for example;
• In Smith’s Case…
• The Town Planning Act…; or
• The Act…
• Care should be taken in the use of quotations and reproduction of sections of legislation.
• Generally a quotation should only be used when the author conveys her own very specific idea that you are referencing, or when the author conveys an idea in a manner which is convincing and that you can not adequately paraphrase.
• Reproduction of provisions of legislation should be limited to very brief sections or parts of sections.
• Case names and legislation should be presented in italics or underlined.
• Appropriate margins should be provided on each page.
• An assignment cover page should be attached to your work.
• The name of your tutor and the day and time of your tutorial MUST appear on the assignment cover page.
• A copy of your paper should be retained for your reference.
• Use Times New Roman 12 font and 1.5 spacing.
• Case citations should include the name of the case and the year it is reported in brackets in the body of the text (consistent with Harvard referencing style). Full citations with the name of the case, year reported and law report series (with volume and page number) should be listed at the end of your work in a list of references.
• References to legislation must be fully given in the text and repeated in the list of references at the end.
• Accurate, complete references to cases and legislation must be given (and may be found in your text).
• References to either legislation or cases must NOT contain spelling errors.
• You may reference cases and legislation in the body of your work in full OR use footnoting.