WEEK 2 EXEMPLAR

Negligence – Duty of care

I. QUESTION
Sam, a supervisor at Brighton Construction, was on a field trip with one of his employees,
Earnest. They had been looking for a special type of wood in the densely forested areas of East
Gippsland, Victoria, Australia to be able to use in the construction of homes.

Both Sam and Earnest were very disappointed because they could not find any new type of wood
which they could use to replace the expensive type of wood they were currently using. Having
not found the special type of wood they were looking for, they got into the company truck and
Sam began driving back to Melbourne, where Brighton’s headquarters were located.

As Sam was driving back, he ran over a nail, lost control of the truck, and it began to swerve
onto the sidewalk. Penelope, a pedestrian, was jogging with her Apple I-Pod and listening to
music on the sidewalk. The company truck came within 1 meter of hitting Penelope, but
managed to stop before hitting her. Penelope turned around and wondered why there was a truck
parked behind her on the sidewalk.

Sam and Earnest exited the car and Sam told Earnest to quickly change the tire, as they had a
meeting in one hour, and also not to dirty his new uniform. As Earnest was changing the tire,
Sam became bored and began looking around. As he gazed at the trees, he saw an amazing tree
only 10 meters from the road. He approached it and noticed that it was an Anartic Beech tree,
known for its stability. Sam quickly ran back to the truck to get an axe.

It was rapidly getting dark as Sam began to chop down the 30 meter tree. As Sam was chopping
down the tree so that he could bring the wood back to headquarters, it began to lean toward the
street, and it finally fell directly onto the street, where it landed on Bobby’s BMW car as he was
driving by.

As a result, Bobby broke his leg and was unable to go to the hot-dog eating contest where he was
the 5 time champion. The prize for winning the contest was $5,000 dollars.

Required: Bobby is very upset and comes to you, his lawyer, and seeks your advice.

Discuss whether Bobby will be successful in establishing that Sam owes Bobby and Duty of
care in negligence.
II. STUDENT ANSWER:

I: Whether Sam owes Bobby a Duty of care regarding the fact that he did not know that the tree
would lean toward the street.

R: • Lord Atkin’s Neighbour test: “We owe a duty to our neighbours . . . people who
are so closely and directly affected by my act or omission that, as a reasonable person, I should
think about those people when I am about to act or to not act. . .”
• Caterson v Commissioner for Railways (1973) 128 CLR 99: Sam cut down the tree
without knowing that the tree would lean toward the street and injured Bobby. As a consequence,
this is the omission of Sam about owing the Duty of care.

A: The event that Bobby was injured was not reasonably foreseeable because Sam didn’t know
the fact that the tree would lean into the street. This issue should be considered as ‘not likely to
occur’ because Barwick CJ said at (101 – 2) that “it denies the proposition that the event or
damage should be apprehended as more likely than not to occur or to be suffered and on the
other hand, by its negative form, it excludes possibilities which are theoretical and unreal in all
the circumstances: it accommodates the idea of a real risk or danger…”

C: Sam should have known that the tree would lean toward the street and it could damage any
vehicles on the street. For this reason, Bobby will be successful in establishing that Sam owes
him a Duty of care in negligence.

III. DISCUSSION QUESTIONS

1) Does the legal issue statement sufficiently answer the following questions? Why/why
not?
 Who are disputants? (Identify parties by name, if possible) Sam , Bobby
 Who suffered? How? Bobby – his car BMW was damaged, physical injury,
medical expenses, missed his hot dog eating contest (prize money)
 Why the plaintiff wants to sue? Since Bobby’s suffering was resulted in part of
Sam’s careless actions
2) Which relevant legal grounds under common law are left unaddressed in the rule part of
this answer?

3) Using the IRAC rubric provided in section IV below, how would you rate the IRAC
structure of this answer?
a) Issue(s) b) Rule(s)
o Outstanding o Outstanding
o Good o Good
o Average o Average
o Poor o Poor
 o Unsatisfactory o Unsatisfactory

c) Application d) Conclusion
o Outstanding o Outstanding
o Good o Good
o Average o Average
o Poor o Poor
o Unsatisfactory o Unsatisfactory

4) What are your suggestions to improve the IRAC structure of this answer? Be specific in
your suggestions by addressing necessary improvements with Issue, Rule, Application,
and Conclusion.

5) Are the analysis in this answer original, logical and convincing? How would you improve
them?
 Does the analysis analyse all factors/elements/questions cited in the rule?
 Is each factor/element/question briefly explained before being analysed?
 Is each factor/element/question accompanied by RELEVANT facts from the
case?
 Is each factor/element/question answered sufficiently by common knowledge?
 Does the analysis generally sound convincing/strong?

6) Does the answer have a clear and comprehensive written style (spelling, grammar, syntax
etc)? What should be improved regarding the written style?

7) What can you learn from studying this answer?

 LAW2447
General IRAC Rubric
IRAC NN (Below 50%) PA (50-59%) CR (60-69%) DI (70-79%) HD (80-100%)

ISSUES & RULES Inadequate or All obvious legal issues All relevant legal issues All relevant legal issues are All legal issues are identified
incorrect are identified. Issues are identified including identified including some including a clear distinction
Identification of identification of the statements are mostly the majority of hidden distinction between crucial between crucial and
the legal issues legal issues and relevant. legal issues. and subordinate legal issues. subordinate legal issues.
and legal rules legal rules.
Most legal rules identified Issues statements are All legal rules are identified All legal rules are identified
30% are relevant. all relevant. and some attempt at a including a clear distinction
distinction between between authoritative and
All relevant legal rules authoritative and persuasive persuasive legal rules.
are identified. legal rules.

APPLICATION There is little or no Evidence of how some Evidence of how all Evidence of how all legal Evidence of how all legal rules
evidence of how the legal rules are relevant to legal rules are relevant rules are relevant to the are relevant to the case.
Application of legal rules are the case. to the case. case.
relevant legal relevant to the facts Full detail as to how these
rules to the facts of the case. Some detail as to how the Full detail as to how Full detail as to how these rules can be applied to the
of the case rules can be applied to these rules can be rules can be applied to the facts of the case to support a
supporting the facts of the case to applied to the facts of facts of the case to support a resolution of all the issues.
resolution of the support a resolution of the case to support a resolution of all the issues.
issues the issues. resolution of all the Clear distinctions between
issues. Evidence of identification of a factual problems and relevant
50% distinction between factual legal rules.
problems and relevant legal
rules.

CONCLUSION Conclusion is absent, A convincing conclusion A convincing conclusion A convincing conclusion on A convincing conclusion on all
incomplete or on most of the legal on all of the legal issues all of the legal issues based of the legal issues based on
contradictory. issues based on support based on support from on support from the support from the arguments in
Relevance of the from the arguments in the the arguments in the arguments in the application. the application.
conclusion application. application.
Some discussion on why Clear justification on why
10% alternative conclusions were alternative conclusions were
not reached. not reached.

REFERENCING & Inadequate or Most referencing is used All referencing in text All referencing in text and All referencing in text and
LANGUAGE incorrect referencing. correctly. and footnotes is used footnotes is used correctly. footnotes is used correctly.
correctly.
Appropriateness Numerous language Most language used is English language including English language including
of Referencing, errors. accurate. English language spelling and grammar used is spelling and grammar used is
English, Legal including spelling and accurate. Writing is clear and accurate. Writing is clear and
language and Legal language not Most Legal language is grammar used is fluent. fluent.
writing techniques used, or used used appropriately. accurate. Writing is clear
inappropriately. and fluent. Legal language is used Legal language is used
10% consistently and consistently and appropriately.
Legal language is used appropriately.
consistently and
appropriately.