Torts Week 8 - Assignment Research & Writing

1. TortsWeek 8- Assignment Research & Writing Frances McGlone room 708 3864 1094 f.mcglone@qut.edu.au

2. Today’s lecture • Why are you writing an assignment? • Word limits • Planning • Format • Style • Citation of cases • An example

3. Why formal assignments? • To get 20% of the unit marks • the torts teaching team makes me! • Well why do we make you? • employers want graduates who are able to write in a formal style • what you know is relatively useless unless you can convey that information in an appropriate manner e.g. in-house newsletter • See pp 20/1 of 1st semester study guide

4. Word limit - 2 000 • 15 or 20 words is okay but there is no automatic 10% rule • actual number must appear at the end of the work • footnotes not counted as long as they don’t contain matters of substance • if they do you won’t get marks for it • bibliography not counted

5. The planning • Analyse the question on p10 of the study guide • the context of the question • foreseeability, PEL, no clear majority reasoning • consideration of High Court decisions • reference to secondary sources where appropriate • discuss the effectiveness of the reasoning of the members of the High Court • compare and contrast Kirby & McHugh JJ

6. Planning cont. • what do I need to know • what are the relevant High Court cases • what are relevant secondary sources and what do they say about the topic • browse the literature - no notes at this stage • analyse the literature - make notes on cards etc • make a detailed outline • do the rough draft - incubate! • edit (rewrite?), proof-read, copy & hand in by the due date

7. The structure • Introduction - is headed as such in law • about 10% of the paper • states your main theme or argument • this is what you are seeking to convince the examiner about • it is the central theme upon which other ideas depend • states your approach to the topic • states the conclusion you will reach • it may be the last thing you write

8. Structure cont. • Body • develops & states the rationale for the theme you have chosen • analyses the primary and secondary sources chosen in support of the above • is organised and formatted to reflect and reinforce your theme • there must be consistency and harmony between the body and your introduction & conclusion

9. Structure cont. • Conclusion • restates the theme of your paper • reports the results of your research and analysis of the topic • restates the key points you wish to convey • again convention indicates 10% • you should not introduce new material

10. Format • headings • divide the major parts of the paper • sub-headings • used to divide minor parts within the majors • they may be numbered, e.g. • 2. Burnie Port Authority … • 2.1. The Majority Judgement • 2.2 The Dissenting Judgements • 2.2.1 Justice Toohey’s Judgement • do not over-use as may disrupt the flow

11. Style • Is personal to the author but should conform with legal norms • each paragraph has a main idea with supporting details • generally not just one sentence • uses plain English • does not over-use jargon

12. Style cont • uses first person sparingly • usually not ‘I think’ • does not use contracted forms • eg ‘does not’ rather than ‘doesn’t’ • uses correct grammar and spelling • does not rely upon spell & grammar check • grammar check good for overly long sentences! • read respected journals for guidance • jokes rarely succeed

13. Citations • Why? • to help reader follow up for further information • to help marker see what you have and haven’t read • to avoid allegations of plagiarism • we are very serious about this - see p17 of 2nd semester study guide • should never cite a work you have not personally consulted • bibliography serves a similar purpose

14. Citations cont. • Case names are in italics • Donoghue v Stevenson [1932] AC 562 • if central to your argument, put name in body of work & citation in the footnote • if not central put both in the footnote • similarly statutes and use the short title • abbreviation in brackets for future use • The Trade Practices Act 1975 (TPA) • footnotes better than endnotes

15. Citations cont. • Law is different from some other disciplines • do not use in-text/ bibliographic/Harvard style • Internet “medium-neutral” citation • each case reported by [year] court, case no. & have numbered para nos. not page nos. • [1998] HCA 49 at 16, au/cases/cth/high_ct/1998/49.html • should use authorised report when available

16. An example • Using decisions of the Australian High Court to illustrate your answer, critically examine the manner in which Australian common law courts currently seek to put an injured person back in the position the person would have been in if that person had not been injured.

17. Introduction • It is obvious that no sum of money can adequately compensate persons who have suffered catastrophic personal injuries. Nevertheless the common law attempts to do so even in regard to such non-tangible losses such as loss of enjoyment of life. One of the ways the courts attempt to compensate injured plaintiffs is through awarding damages under various heads of damages. Also relevant are the rules and principles which underpin an award of damages in a personal injuries action.Ultimately however, as this paper will demonstrate the common law can never put a person back in the position he or she would have been in if the person was not injured.

18. The body • The heads of damage • Pecuniary and non-pecuniary • Special and general • The rules and principles • the once and for all rule, • the lump sum rule, • the eggshell skull rule, • the indemnity principle, and • the duty to mitigate.

19. Conclusion • As the question indicates the common law courts do recognise that an award of damages should put the plaintiff back in the position they would have been in but for the loss or damage the plaintiff suffered as a result of the defendant’s negligence. The indemnity principle especially seeks to achieve this objective, although the courts use the heads of damages to ensure that the plaintiff is not twice compensated. However, the lump sum and the once and for alls rules do make it very difficult for courts, especially in serious injury cases, to achieve this objective.

20. Good luck with your research and writing for your assignment!