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Remedies Law Research Homework Questions

Remedies Law

Question

You work as a personal injury lawyer.  Your supervising partner asks you to prepare an advice advising Catherine on how much compensation she may be eligible to receive after the death of her husband, Henry.  She has provided the following facts.

Catherine and her family

Catherine was born on 1 March 1977 and is currently 40 years old.  Catherine was an accountant before her son, Francis, was born. She gave up her accounting career to stay at home full time to look after Francis and manage domestic chores. She depended upon her husband’s (Henry) income to maintain her.  She enjoys good health and is expected to live to 85 years old.

Henry was born on 1 February 1972.  Henry was 45 years old when he died this year in June. He was an architect who had been promoted to partner within his employer firm in December 2016. He had devoted his working life to the firm and expected to continue working there as partner until retirement.

Henry earned $4,000 gross/$3,000 net per week (“net” meaning his take-home pay, or more accurately his gross less tax and the costs of earning the gross). Prior to the accident, Henry was in good health and expected to work until he was 65 years old.  He was expected to live until 80 years old.

Catherine and Henry were married for 20 years. Catherine gave birth to their son, Francis, on 1 January 2000. Their marriage has not always been smooth: in 2007 they separated for a year; in 2013 they separated for 6 months.  Each time they separated they later reunited for the sake of Francis.  Since the 2013 separation, they have lived amicably together.

Francis was born on 1 January 2000.  He is a healthy, 17 year old man. He is currently in year 11 at Merewether Selective High School.  He expects to graduate with a high UAI in 2018 and attend a University in Sydney to study psychology in 2019 (4-year degree).  Henry was going to financially support, ie maintain, Francis for the four years that he studied.

The family lives in Newcastle in a three-bedroom house in Merewether, which is owned by Catherine (her father bought it for her when she gave birth to Francis). The family does not own any other real property.

The accident

Henry was badly injured on 1 February 2017 in a water-skiing accident when the family was on holiday in Port Macquarie.  The accident was caused by the negligence of Port Macquarie Adventures Pty Ltd (‘PMA’).  PMA has admitted full liability for the accident. There is no evidence of Henry having been negligent.

The accident rendered Henry comatose and resulted in the amputation of four fingers on his right hand (Henry was right-handed).  He also suffered many broken bones, and extensive head and spine injuries.  He underwent several surgeries on his head, arm and spine. Henry remained in hospital in a coma from the date of the accident until his death.

Unfortunately, on 1 June 2017, he developed a blood clot that killed him. It is accepted that the blood clot was caused by the accident.

Related expenses

Medicare statement on the costs of all treatment: $250,000.

Funeral expenses: $12,000

Other consequences of the accident

Henry was unable to return to work before his death.

Since Henry’s death, Catherine works up to four days a week as an office assistant in an accountancy firm to make ends meet. She earns $800 net per week. She has recently been in contact with her ex-boyfriend from high school and they have started dating.

Both Catherine and Francis were understandably badly impacted by the death of Henry and miss Henry very much. Nonetheless both have been resilient and able to get on with life by supporting each other. They have not needed professional care to deal with grieving, depression etc.

Catherine is the executrix and sole beneficiary of Henry’s will. Henry left Catherine $250,000.

Henry’s estate received $500,000 from Henry’s superannuation fund.

How Henry’s net earnings were spent at the time of death

At the time of Henry’s death, he spent his net weekly earnings as follows:

  • Maintenance of Henry: 40% ($1,200 per week)
  • Maintenance of Catherine: 40% ($1,200 per week)
  • Maintenance of Francis: 20% ($600 per week).

Catherine expected to receive the same level of maintenance per week while she continued to be married to Henry, even after Francis left home. They did not plan to have any further children.

Maintenance means: financial support including payment for food, clothing, general living and personal expenses, medical treatment, etc.

Other information

  • The average weekly earnings of all employees in New South Wales for the most recent quarter is $1,500 gross per week.
  • The relevant Commonwealth Government 10-year benchmark bond rate as published by the Reserve Bank of Australia is 2%.

Advice sought

  1. Can the Estate of Henry claim any damages from PMA?

If yes, identify:

  1. The legislation under which the Estates’ claim will be made; and
  2. The heads of damage claimable and the estimated amounts.

Note that PMA has accepted liability in negligence. You do not need to discuss causation and remoteness.

  1. Can Catherine and Francis claim damages from PMA for the financial benefits they expected to receive had Henry not been tortiously killed?

If yes, identify:

  1. The legislation under which the claim will be made; and
  2. the heads of damage claimable and the estimated amounts in respect of Catherine and Francis. Assume the calculation commences from Henry’s date of death. (Round up part years to the nearest whole number.)

  

Further instructions

Read the Subject Outline for further instructions on word limit, format, etc.

You will need to research legislation not covered in this subject, but which was considered in 70317 Torts.

Calculate the damages based upon the facts provided above only. You do not need to research statistics or averages.

Demonstrate how you calculate each head of damage by explaining the steps you take. We are not looking for a single, correct final figure. Rather, we are assessing if you understand what heads of damage are claimable, how certain figures are calculated and whether your case for damages is rationally supported by the facts.

For ease of calculation, you can assume that a month is 4 weeks.

Feel free to use tables, subheadings, etc, to set out your calculations, if using them will assist your calculations and explanations and more cleanly present your case.

You do not need to address who is the proper plaintiff.

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TABL 1710 Business And The Law Homework Help in Australia

You need to support your analysis with relevant research and references in AGLC format, as set out in the TABL1710 Style Guide on Moodle. The mark allocation is set out under “Requirements” below. There are marks associated with all of the requirements of the rubric and the analysis should be supported using the law.
There are zero marks for repeating the facts and you will reduce the number of words for your analysis if you repeat the facts.
The total length must be no more than 1,800 words (excluding footnotes) and there is NO +10% margin. Work beyond the 1,800 word limit may not be marked.

In answering this question, you should apply the common law of contracts (that is, you should not refer to statutes and you should not refer to employment law). When there is a legal principle that you apply in your analysis, you should cite a relevant case.
One of your friends at the UNSW Business School is Mike Tuckerberg. Mike is an entrepreneur and he has just started a new social network for UNSW Business School students which is called “Schoolbook”. Schoolbook allows its members to share their news and pictures.
You also know of two other students in the UNSW Business School called Elder Rower and Younger Rower. Elder and Younger are identical twins. You know that they have just won a defamation court case and, after expenses, they have each been awarded $250,000.
Mike has talked to Elder Rower about investing in Schoolbook. Mike and Elder Rower agreed that Elder Rower would invest $100,000 in Schoolbook. They recorded their agreement in a document that had the heading “Terms Sheet”. This terms sheet included the following elements:

(a) This terms sheet outlines the principal terms with respect to the operation of Schoolbook
(b) Mike Tuckerberg and Elder Rower are each referred to as a ‘Party’ and collectively as ‘the Parties’.
(c) The Parties agree that this terms sheet is intended to be legally binding and to constitute the obligations of the Parties.
(d) Each Party is entitled to an equal share of the profits made by Schoolbook.

After the Terms Sheet was signed on 1 December 2016, Mike worked really hard to make Schoolbook a success. Elder Rower dropped out of UNSW and went to a start-up business

called SnappyTalk. He invested his balance of $150,000 in SnappyTalk, which is set to become a “unicorn” when it has its initial public offering in early 2018.
Younger Rower has been helping Mike to spread the news about Schoolbook through his extensive social media contacts. In July 2017, Mike was pleased to work out that Schoolbook had made a profit of $50,000 from online advertising, mainly using Google Adwords.
Mike sent Elder Rower $25,000 via a bank transfer on 31 July 2017.
On 1 August, he received:
(a) an email from Elder Rower that said “thanks for the dividend, I look forward to many more as does my brother Younger”; and
(b) an email from Younger Rower that said “where is my dividend? My brother and I always invest together”.

REQUIRED
Mike knows that you are a keen student of business law and asks you what he should do now and why. You should include:
(a) What contract or contracts have been formed? When were the contract or contracts formed? Who are the parties? (2 marks)
(b) Advice to Mike as to what the issues are (4 marks)
(c) Your analysis is of those issues (12 marks)
(d) What Mike should do now (2 marks)

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TABL 1710 Business And The Law Homework Help in Australia

Required steps:

WHAT TO DO:
1) Identify KEY FACTS of the problem

2) Identify RELEVANT ISSUE of the problem

3) Identify KEY LEGAL PRINCIPLES

4) APPLY THE LAW TO THE FACTS

5) Reach a TENTATIVE CONCLUSION based on the application of the

Australian Torts Law And Impact On The Common Law

 200008 Torts Law- Spring 2017 – Legal problem solving assessment

Legal problem assessment (35%)

This is an exercise in legal problem solving.This assessment task is designed to address student learning outcomes 1-3 for the unit:

1

Identify and discuss the key principles of Australian torts law prescribed  by accrediting authorities.

2 Use the principles and processes of legal reasoning  in a torts context  to:

a. Analyse cases and identify legal principles, policies and authority;

b. Identify and apply relevant statutory provisions  and discuss  their impact on the common  law; and

C. Analyse and resolve legal problems.

Develop  clear, concise and persuasive  arguments to write answers  to legal problems  which are logically structured  and use correct spelling, grammar and  punctuation.

ASSIGNMENT INSTRUCTIONS:

Before submitting your assignment it should be spell­ checked and read aloud to check for grammatical errors and/or run through the grammar-checking tool in MS Word.All references must be in AGLC style (Australian Guide to Legal Citation, available free via the Library website, see Learning Guide for details; the WSU School of Law has also developed a free AGLC app you can download).

.Read the problem question scenario below.

.Answer all questions.

.Word limit: 1000 words, excluding footnotes.

.Format: Double spaced, AriaI 12 point, MS Word document.

. If you do not use a Word document we will not be able to view and mark it. Please note you can

2.Answer all questions.

.Word limit: 1000 words, excluding footnotes.

.Format: Double spaced, AriaI 12 point, MS Word document.

.If you do not use a Word document we will not be able to view and mark it.       Please note you can download the MSWord App for iPads free via App Store.

PROBLEM  QUESTION

Leah catches a train every day to and from her workplace in the Sydney CBD. Over the course of a month Leah has various experiences involving other passengers on the train.

  1. Leah catches a train home from work on Wednesday evening. Although there are some people on the train, it is not particularly crowded as it is after peak hour. There are several vacant seats available. Leah is standing in the foyer of a train carriage (where people get onto the train) because she is only travelling for a few stops. She is holding onto the yellow metal handrails in the centre of the carriage foyer. A man dressed in a suit, Adam, is standing behind Leah and is pressed up against her. Leah is horrified to realize that Adam has an erection and is pressing it against her.
  2. On her way home from work on Monday evening, Leah sits on a seat on the train. She has the tophalf of her hair tied back in a ponytail elastic. She is sitting next to the window underneath a sign saying,

‘DO NOT PUT FEET ON SEATS: ON-THE-SPOT FINE $200’ with her back to a group of older teenage girls who are giggling. Leah is tired, so she puts her feet up on the seat opposite, and leans her head on the window, half-asleep. When Leah gets off the train she realises that the chunk of her hair in the ponytail has been cut off. Leah speaks to the security guards at the train station the next day and

3 head on the window, half-asleep. When Leah gets off the train she realises that the chunk of her hair in the ponytail has been cut off. Leah speaks to the security guards at the train station the next day and the CCTV footage from the train shows the girls cutting off Leah’s hair with scissors.

  1. On Friday, Leah drops her Opal transport card on the floor next to her seat without realising she has done so. Leah has her earphones in listening to music on her phone and falls asleep. Tony, another passenger, sees Leah’s Opal card on the floor next to her. He says in a normal volume voice, ‘Hey is this your card?’ Leah does not hear him. He gets close to her face and shouts ‘HEY, IS THIS YOUR CARD LADY?’ Leah wakes up with a start and is frightened at seeing a man standing over her shouting into her face. Her heart is beating very fast. Tony gives her the Opal card back and walks away.

Answer all questions below.

Make reference in your answers to relevant cases and sections of the Civil Liability Act 2002 {NSW).

  1. Might Adam’s actions in Part A of the problem question satisfy the conduct and fault elements of any trespass? Explain why or why not.
  2. Explain whether any defences might be available to Adam.
  3. Consider the teenage girls’ actions in Part 8 of the problem question. Might the elements of any trespass be made out? Explain why or why not.
  4. Explain whether any defences might be available to the teenage girls.
  5. Consider Tony’s actions in Part C of the problem question.Might Tony be liable for any trespass?

Before you start working on this assessment,  go back and revise the notes from week 1, on using

  1. Explain whether any defences might be available to the teenage girls.
  2. Consider Tony’s actions in Part C of the problem question. Might Tony be liable for any trespass?

Before you start working on this assessment,  go back and revise the notes from week 1, on using authority to support your answers to legal problem solving questions.You are expected to explain your answers by applying relevant legal authority (cases and legislation)  to the facts of the problem.Refer also to the ‘Referencing Requirements’ section of the Learning Guide.

Marking guidelines

Students are assessed against the standards below. Your work will be given a mark corresponding with one of the following grades. The criteria specified should be considered as a guide. It is not exhaustive and an answer that is exceptional in one area may be given a higher grade because of this reason and vice versa.

.Resubmission

There will be no opportunity to re-take the group legal problem assessment.

.Marking criteria and standards

Fail

(0- 17)

A response that exhibits any of the following characteristics (the list is not exhaustive) may be awarded a fail grade:

• Written expression is so poor that the student’s statement of lega l principles, analysis and argument is frequently unclear.

• The response docs not demonstrate a basic grasp of legal problem solving.

• Use of authorities is so poor as to be meaningless and fails to provide adequate suppon for the argument.

• The student fails to identify the key tons. remedies and defences, or those that are identified are incorrect.

• The response does not demonstrate a grasp of the relevant legal principles.

• There is little or no application of the law to the facts.

• The response does not demonstrate an understanding of the question. presents mostly irrelevant material and largely fails to address the question.

• The response is substantially plagiarised.

Pass

(17.5 _ 22.5)

To achieve a pass mark the response should:

• Identify most of the key torts and their elements.

• Identify most of the key remedies and defences.

• Demonstrate a basic understanding of the key legal principles.

• Demonstrates a basic grasp of legal problem solving.

• Make some attempt to apply the law to the facts.

• Use authorities to provide basic support for the argument.

• Be logically structured in at least a basic manner.

• Be expressed satisfactorily.

Credit

 

In addition to satisfying the criteria for a pass grade, the response should:

• Be logically developed and well structured.

 

 

Credit

(23-26)

In addition to satisfying the criteria for a pass grade, the response should:

•             Be logically developed and well structured.

•             Demonstrate a good grasp of the relevant law, but mainly restricted to the case law.

•             Use authorities appropriately to provide clear support for the argument.

•             Contain some critical analysis of some of the issues.

•             Develop, sustain and substantiate a relevant and logical argument with thorough application of the law to the facts.

•             Demonstrate a reasonable grasp of legal problem solving.

•             Be expressed reasonably well with attention to matters of style and structure.

A credit response may be distinguished from a pass response on the basis that the student attempts to say something: that is the response demonstrates a good attempt to engage in critical analysis and argument. A response at the top of the credit level may be held back from distinction level by some significant flaw in, for example, its argument or presentation, demonstrated understanding, inconsistency or omission.

Distinction

(27-29)

 

 

In addition to displaying the characteristics of a credit response, at this level the response should:

• Present a cogent and coherent argument that displays superior critical analysis of the issues.

• Show good judgement as to the appropriate degree of analysis of the different issues to be addressed.

• Demonstrate a strong grasp of the legal principles.

• Demonstrate a strong grasp of legal problem solving.

• Demonstrate the influence of policy arguments.

• Be structured in a logical manner and well written.

A distinction response may be distinguished from a credit response particularly on the basis that the student makes a good and cogent argument based on superior critical analysis of the more complex legal issues. The entire content of the paper should be relevant to the student’s argument.  A response at the top of the distinction scale may be held back from high distinction level by some minor omissions or inconsistencies, including ineffective written expression.

High Distinction

(30-35)

A paper at this level will display all the characteristics  of a distinction paper but will surpass that grade because it will:

• Be distinguished by superior analysis and argument.

• Demonstrate good judgement and balance with regard to the appropriate analysis of the different issues.

• Demonstrate an excellent grasp of the relevant legal issues.

• Demonstrate an excellent grasp of legal problem solving.

• Demonstrate particular originality or creativity.

• Demonstrate perceptive use of legal analogy and reference to policy issues.

• Be consistently excellent in its written expression.

A response may be awarded a high distinction not withstanding some minor flaws if it demonstrates a superior argument, outstanding creativity, and is outstanding in most respects.

6Q: ‘I have come across a useful case but it was from the English Court of Appeal … is it okay to use this case?’

A: There are several important concepts in this question. Is the case current? What is the precedent value of the case? Remember that how old a case is does not determine its currency or value – go back to the slide on Donoghue v Stevenson for an example. You can check the currency of the case by looking it up on CaseBase (there are slides in the relevant Skills Lab lecture to guide you through using this tool). How have Australian courts dealt with the case – have they adopted it into the body of Australian law? Or is it just of persuasive value as a precedent? The next thing to think about is whether this is the best case to use.It might be relevant authority, but is there a better case? The starting point should be the cases covered in your textbook readings, lectures and tutorials.

Q: Re the structure of the assignment:  ‘If I just write out the question and then answer it, will the fact that I wrote the question out contribute  to the word count?’

A: No it won’t, but it will be a bit annoying for the marker as they will have to separately check your answers for a total word count.       It’s best to just use numbers, e.g. 1. and start writing your answer.

Q: ‘I can’t find the submission link for the Torts assignment.

A: Thank you for the reminder!                 I had left the link on  invisible to students•, oops. It should now be visible. Use the ‘on time’ submission link if you are submitting on time, and only use the ‘late’ link if you are submitting.

 

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