2 Isaac Isaacs 4u2r14

ISAAC ISAACS LEGAL PROBLEM SOLVING METHOD Preliminary Points Students should always discuss one issue at a time (usually one casus of action at a time as well, unless it is the same action arising from same interference but different parties). Do not use headings in answers such as Issue, State the Law or even I, S…. Just think of them to guide your answer. Do not repeat the facts of the problem as an introduction to the answer – it may be assumed that the examiner has read the question. And more importantly, it takes up time and gets no marks.

I is for Issue Issue refers to anything that needs to be discussed in order to answer the problem. When answering a problem (ie not an essay), the main issue will usually be whether there is a particular cause of action (for eg, tres to land). But in answering that issue, other issues need to be addressed – the elements of the action and the possibility of any defences. Example A is the driver of a car, takes a corner too quickly and crashes into a pole, injuring B, the enger. The overall issue is whether B has an action is negligence against A. The first issue to discuss that would be whether A owed B a duty of care. Issues are identified by knowing the relevant law. that not every “issue” addressed in a tutorial problem or discussed in a lecture or text will be relevant. You should run through the possible issues in your mind but only write about the ones that are relevant on the facts of the particular problem. Example A is the driver of a car, takes a corner too quickly and crashes into a pole, injuring B, the enger. When discussing the standard of care owed by A, students should be thinking of any characteristic that may alter the standard from that of the usual objective standard of care. If there is nothing on the facts, there is no need to discuss altering the standard.

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S is for Stating the Law Stating the law is simply that – it could be a simple rule that applies or does not apply due to an exception, it could be a principle, it could be what is required by the element being discussed, it could be a case, it could be legislation. Stating the law refers to stating the law relevant to the issue being discussed. Regurgitation of all the law relating to the action being discussed does not get marks.

A is for Authority If a rule of law or principle is stated, an authority needs to be stated. In exams cite case names, not full references – not even the year of the decision. If the case name is elusive but the facts can be ed, refer to the facts. Example A manufacturer owes a duty of care to the consumer: Ginger beer and snail case. There is no need to write the case name in a different colour or highlight it, however it is understood that in LWB141 the students are instructed to underline cases – that is fine – we do not deduct marks for any of the above, but think about saving time. Prettier exam papers do not get more marks. In written assignments, unless instructed otherwise, case names need to be in italics and citations should be in full and in footnotes.

A is for Application Answering a problem is about applying the law to a particular scenario.

Therefore

merely stating the law is only partly answering the problem. In applying the stated law to the facts of the problem you are demonstrating your knowledge and understanding of the law – so most marks are allocated to the application part. The stated law must be applied to the facts when discussing each issue. Example A is the driver of a car, takes a corner too quickly and crashes into a pole, injuring B, the enger. Does A owe B a duty of care? There is an established duty of care between road s: Cook v Cook. As a driver, A owes a duty of care to B the enger.

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If a fact is missing you may point that out and then continue, or write “assuming…”. For example, when discussing title to sue in tres to land and the facts are silent as to the ownership or mode of occupation of the plaintiff, it would be acceptable to identify the issue of title, state the law that the plaintiff must have exclusive possession (cite Newington v Windeyer) and state, assuming that A is in possession and has title…

C is for Conclusion This may not always be a separate step in each issue as sometimes the application of the facts to the law is clear. So for example, in title to sue in tres to land and the facts state that the plaintiff, A, is the legal tenant of the property – stating, A has exclusive possession as she is the tenant named in the lease (Malone v Laskey) is clearly a conclusion as to the issue of title. If there is room for argument then try to come to a conclusion, but if there is some doubt, cover both options and the consequences.

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