The Legal Liability of the Driver in the Given Scenario

This assignment will discuss the legal terms given to the relevant parties on the facts, the nature of the action to be taken by the party advised, and the burden of proof required. The elements of negligence requiring proof, as per legislation and case authorities, will also be analyzed and applied to the facts in question. Furthermore, the legal remedies available to the injured party should the action be proven will be considered.

BUS503 PRINCIPLES OF COMMERCIAL LAW
ASSESSMENT TASK 2_ASSIGNMENT 2016-2017 ATMC
DUE DATE: Friday (3pm) of week 9.
TOTAL MARKS: 30 marks (30% of overall assessment)
WORD LIMIT: 2000 words
SUBMISSION: Electronically in Black Board under the Assessment tab. Ensure
that you include a cover page with your name, the name of your tutor and day
and time of your tutorial.

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.
ASSIGNMENT GUIDELINES
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.
SEE BELOW FOR ASSESSMENT CITERIA
Assessment Criteria Marks

Describe and apply the elements f Negligence and discuss the
implications of Negligence to a given problem situation
Requires:
 Accurate and clear statements, and discussion, of relevant
legal issues, elements and principles
15
Demonstrate skills of communication relevant to critical thinking and
legal analysis
Requires:
 Explicit application of legal principles to the facts and
logical/coherent development of arguments
 A valid conclusion which contains accurate discussion of
possible remedies
 Use of structure, style which reflect the requirements for
academic writing
 Use of relevant and accurate legal referencing
15
TOTAL 30
You are also required to use the following headings and place the emphasis
according the available marks:
Assignment Headings &
Spread of Marks
INTRODUCTION (1)
DUTY (5)
BREACH (8)
DAMAGE (5)
DEFENCE (5)
REMEDIES (5)
CONCLUSION (1)
TOTAL (30)
NB
IRAC ensures that you will discuss all the appropriate issues and that you will
appropriately reference them.
IRAC breaks a lengthy and diverse question into answerable pieces.
No lengthy quotes – paraphrase relevant parts.
DO NOT REWRITE FACTS OF QUESTION AT LENGTH.
How many references? No text or web, 10 to 20 sections, six to 12 cases.
Use third person.
No executive summary or wordy introduction.
Watch word length but use all allowed.
Reference all legal principles with a case or statute.