>> Business Law and Ethics
Trevor is the sole owner and operator of "Honey Bee Nature Appreciation Tours" (HB). He operates walking tours of Bushland surrounding the Bunya Mountains. The bush tracks used are not particularly strenuous. Trevor takes a group of no more than six paying trekkers once per week on a six hour walk during day light hours to engage in bird watching and similar activities. Trevor insists that clients wear sensible shoes and clothing during the walks and that all walks are conducted during daylight. He explains that in the past he conducted night time trips but he cancelled them after several trip and fall injuries to clients. He also supplies water and sandwiches. Trevor is an environmental science graduate of USC.
Anna, a café owner, attends one of Trevor's walks. She is dressed in shorts and shirt and a new pair of running shoes. Anna also brings a bottle of wine because it is her birthday. During the midpoint break, produces the wine and offers it to other walkers, who refuse to imbibe. Anna drinks half of the bottle and feels a bit tipsy. Trevor left the walkers alone during the break to scout a new location. However, Trevor is lost in his work and takes much longer than he thought. The team returned after sunset when the forest was dark. On the return walk, Anna's feet become sore, so she changes out of her runners and into her high heel shoes that she brought with her as a backup. At this time, Trevor was observing the rare Marbled Frogmouth perched in a tree.
Later near to the end of the walk, Anna's heal catches on a tree root and she stumbles down a hill side injuring her knee. Anna is transported to hospital. While in hospital Trevor visits her and expresses his regret that the incident occurred. While Anna fully recovered in a month, she closed her café and decides to sue Trevor in Negligence and claim 12 months in lost income and punitive damages to punish him.
Advise Anna as to her case for Negligence against Trevor. Do not discuss any defences apart from Contributory Negligence.
The following guidelines are based on a review of common errors made in Business Law and Ethics 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
Generally the content (or coverage of the topic) is assessed according to two main requirements. 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 requirements 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 an introduction, analysis and conclusion (but not include these headings as such).
- 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 state:
- The elements requiring proof (from the legislation) and interpretation of those elements (from legislation and 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 using IRAC (ie the words issue, rule...etc) should NOT be used.
- Headings using ‘Introduction', ‘Analysis', and ‘Conclusion' should NOT be used.
- Headings should reflect the legal issues raised by the problem.
- 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 that 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 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.
- 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 line spacing.
Preview Container content
Trevor and Anna are the defendant and plaintiff in the given scenario. It is advised that Anna must take an action under the law of negligence against Trevor and Trevor must take the defence of contributory negligence in order to protect his interest. The burden of proof in the law o negligence is always on the plaintiff, so, Anna must prove all the elements of the law of negligence against Trevor. The elements of negligence require duty of care, breach and damages.
Legal requirements and its application
There are three basic elements that must be proved to hold Trevor negligent; the same are duty, breach and damages.
Duty is the first element to be proved to hold any defendant negligent in his actions. Duty signifies that the defendant is under the obligation to conduct his actions in such a manner so that his acts do not cause any kind of harm to any plaintiff (Langridge v Levy (1837) & Donoghue v Stevenson (1932). This precaution that is asked from the defendant is a ‘duty of care’ that is expected from him while carrying out any acts or omissions. (RN Moles, 2016)
But, ‘duty of care’ requires two elements be proved. The same are:
Forseeability – Forseeability submits that every defendant is expected to reasonably foresee the effects of his act or omissions and if he can foresee that his acts may likely to cause any injury to the plaintiff then he must avoid such acts or omission or to carry his acts in such a manner so that the like hood of the injuries is not present (Gala v Preston (1991). The forseeability is as judged as per a normal prudent man in same situations. (C Witting, 2007)
Proximity – Proximity submit that the defendant and the plaintiff should be so connected with each other so that the impact of the defendants acts or omissions falls directly on the shoulders of the plaintiff. In such cases, there is nearness or proximity amid the parties and the parties are neighbours of each other (Grant v The Australian Knitting Mills .
Thus, when the parties are proximately connected with each other and the defendant can reasonably foresee the affects of his acts then there is duty of care which is imposed upon him and he must fulfil the same.