Legal Process Major Assignment

This document presents a detailed feedback on a major assignment focusing on legal problem-solving using the IRAC (Issue, Rule, Application, Conclusion) method. The assignment involved analyzing two fictional cases, *Careless v Johnson Pty. Ltd.* and *SNEAKY v TANTRUM Pty. Ltd.*, to determine an employer's vicarious liability for an employee's actions. The feedback highlights common errors, such as analyzing sub-principles instead of the overall rule, and incorrect issue identification. It emphasizes the importance of a holistic approach, considering all relevant facts and principles in a balanced manner. The feedback also provides guidance on issue recognition, the application of legal principles, and the structure of an effective IRAC analysis. A sample answer is included to illustrate the expected level of analysis and structure for a high-scoring submission. The document aims to improve students' understanding of legal problem-solving techniques and the application of case law.

LEGAL PROCESS
2016 Semester 2
MAJOR ASSIGNMENT – PLENARY FEEDBACK
IRAC Generally
1. Without repeating the formal learning outcomes, essentially this exercise
is an exercise in legal problem solving (ie IRAC).
2. The exercise is intended to test your legal problem skills. Although the
exercise is explicitly to be based on I-R-A-C, I-R-A-C itself is nothing more
than a legal syllogism and the mastery of this mind set takes us all the way
back to paragraph 86 of lecture summary 1.
3. The exercise was intended to test your legal problem solving skills – and
here, relevantly, that the legal material upon which the exercise was
based was strictly to be limited to the Research Material (hence my very
explicit instructions).
4. The actual legal correctness or content was simply not to the point, nor
were the conclusions. I was interested only in your answers for their
structure and the extent to which they displayed an understanding of
generic legal problem solving.
5. The facts themselves in those two cases, and the legal propositions to the
limited extent necessary for this assignment, are contained in two rather
short extracts specifically provided namely the extracts from two fictional

cases Careless v Johnson Pty. Ltd. (1980) 45 MLR 123 and SNEAKY v
TANTRUM Pty. Ltd. (1984) MLR 214.
6. The real challenge was knowing how to extract the relevant facts from a
rather more complicated scenario; and then to apply the law and its
supporting premises within those two cases, to your fact situation. That
was the real challenge in this assignment.
7. As far as the actual process of extracting and applying a principle from a
case was concerned, this exercise was in terms of methodology, not
dissimilar to the way you applied Annetts. That process was in this unit
conducted essentially as a two staged exercise – firstly, to extract the
principles themselves (viz the syllogism creation exercises that we
performed at the outset) and then to apply those principles in a process
of problem solving (ie the Cadet exercise, as well as tutorials 3 and 4).
Those scenarios were a little less complicated but not really that much so
and the methodology was pretty much the same.
8. Specifically then, the assignment tested your ability to sift through and
read the two cases; identify in the factual matrix the issues raised by the
consideration of the two cases; and the application of the principles
therein contained in a process of problem solving – ie I-R-A-C and indeed
this is explicitly expressed as part of the learning outcomes for this
assignment.
9. The most common error was simply that the examiner could not follow
the path of legal analysis. Put simplistically, this mean that the learning

outcomes were compromised and I am going to try to demonstrate how
these might have occurred, by discussing some fairly fundamental errors
that occurred along the way.
Common Errors and Omissions
Analysing a sub-principle (ie part of the rule)
10. The treatment of the principles of law in the cases makes it clear that the
determination of whether an employer is liable for the conduct of the
employee is a matter which requires a balanced consideration of
numerous, overlapping and sometimes conflicting positions.
11. For example, if the act was one that was explicitly prohibited, the
outcome might be that the employee would be acting outside the scope
of his employment. Relevantly, the court in Careless actually said that
where the act was expressly forbidden, the outcome might (but not
invariably) be that the employer is not vicariously liable. By the same
token, no determinative ruling was expressed in a case where the where
the relevant act is not one that the employee was explicitly employed or
authorised to do, save to note that this might give rise to complications –
though less so than if the act was actually prohibited.The general tenor of
the discussion, requires you to consider the various principles in the case
in a balanced manner, and not isolating a single premise or aspect and
analysing that.

12. For this reason, it would not have been appropriate, and would have led
to insurmountable complications, to disaggregate ” the discussion into
“elements” or “sub issues” or even simply separate, discrete questions.
The cases discuss various matters going to the ultimate question of the
liability of the employer but to characterise them as separate criteria (in
whatever form) is not open.
13. That conveniently brings me to the next point:
Issue recognition and creation
14. The methodology of issue identification was also practised from the
outset – see eg paragraphs 14 and 23 and following of tute 2. This was
emphasised again in para 32b of lecture summary 5. The definition
therein was that an issue was “the legal problem on which the advice is
being sought”. Much comment was made as to this in paragraphs 43 – 46
of the plenary feedback to the case-brief assignment. In this assignment, a
lot of guidance was given as to the identification of the primary “issue”
which, broadly speaking, is whether Guarditwell can be made liable as
Janet’s employer for his conduct.
15. Some created separate issues eg what the scope of employment was, and
if Janet was acting within the scope of his employment; whether she had
acted so as to be a stranger to her employment; whether the Janet acted
in intuitive self defence etc. etc.; whether she was on a frolic of her own.

16. Ultimately, they all go to the same fundamental point namely that they
are different ways, to suit the factual situation, of expressing the idea that
the employee had acted outside his course of employment. There is no
error in using these expressions as such as they are useful to highlight the
consequences of the act, but on the other hand, selecting these issues for
analysis as separate or discrete issues would inevitably likely have led to a
lack of cohesion in your answer.
17. A deeper appreciation of the ultimate (solitary) issue viz “scope of
employment” – will indicate that there is a better way of setting out the
arguments, namely that you should have balanced all the competing
aspects, including the fact that she was on the premises as she was
actually on duty; the belief that he was stealing her car might or might not
have meant that, in the course of her duty, to watch over the premises
generally, she might thus have been exposed to violence; her use of the
truncheon and assault of Gordon under those circumstances although
prohibited might yet have been within the scope of her authority.
18. Thus, in summary, an answer that identified the solitary issue as being
“the scope or course of employment” (or similar) would have come
closest to the mark and would prima facie have attracted the most marks
for this aspect of the analysis.
19. Whether any other form of issue identification was actually “wrong” or
deficient was a matter of degree, and one then needed to look carefully at
the individual answer to explore the internal organisation of the premises
and whether the answer could be read as a coherent whole. The majority

of students who did select some other issue did not manage to achieve
this although some did – with considerable, and self evident, (and
unnecessary!) effort.
20. A similar problem was “merging” the statement of the rule and its
application. This is a far more fundamental point but at its core it is the
same difficulty or at least arises from the same source, as will be
explained shortly.
21. The major premise is the appropriate “place” in which one wants to
articulate facts and circumstances relevant to the actual legal principle or
which go to the evolution of the rule – see eg the 4th and 5th paras on page
2 of the commentary to tute 1 and see also para 8c of the commentary to
tute 2. Paragraph 52 of that document then described how that exercise
might be performed.
22. We then ‘tinker’ with the premises so that we are able, (within the minor
premise), to argue similarities and differences in the case at hand, with
the rule comprised in the major premise. See also comment ky3 to the
sample answer to tute 3 for an explanation of how the major premise is
“tinkered with” in an appropriate case. But the matters relevant to the
rule must be contained in the major premise, and not mid analysis. If you
made the error of creating several issues/aspects/discrete questions/sub
topics (they all are translate to the same flaw) then inevitably you would
have merged law and application, by commencing a new line of analysis
midway.

23. In the fictional cases, you will see that in both cases, the judges used
numerous examples themselves. The facts of those cases needed thus to
be discussed as part of the major premise/rule. It is both necessary and
useful as they would have given you a crucial template for comparison
and discussion – and this will not be achieved by either stating the legal
proposition blandly, or else by describing them by the various expressions
in the cases eg going on a frolic; carrying out an act foreign to
employment etc. etc. but without reference to the supporting facts or
circumstances.
Discussion of Crucial Aspects
24. Although this type of question is open to numerous alternative pathways
(leaving aside the question of issue identification) the crucial question is
whether Janet was acting in the course of her employment when she
assaulted Gordon. This raises the subsidiary consideration (not a separate
issue as such) as to whether her assault on Gordon was a spontaneous act
if carried in the course of his employment, or something else.
25. We are all used to the idea of doing some mapping of the answer before
we write the same. For relatively big assignments like this one, you would
write something down, whilst in your exam, you might perform the
exercise mentally or else scribble down something on your answer script.
In order to show you what I mean, and also to demonstrate how the
process would assist you with the actual writing of the answer, set out
below is what your mapping process might have looked like:

The pivotal facts are: Janet’s initial presence on the premises was in
furtherance of her employment as a night-watch person and like Sneaky,
the fact of her employment gave her the opportunity to perform the
assault in question – but, to complicate things she was prohibited from
assaulting an intruder. The explicit point made in Carelesss and more
obliquely in Sneaky was that this does not necessarily mean that the
commission of the prohibited act without more took the employee outside
the course of his employment. Her use of the truncheon in assaulting
Gordon was in express violation of the employer’s instructions. According
to Careless, Janet’s actions might thereby (but not invariably) fall outside
the scope of her employment on this basis and therefore Rattlecar would
not be liable for her actions. To complicate matters, a question might arise
as to whether her actions in protecting ‘her’ car even prima facie was
something that fell within the scope of her employment in the first place,
since her job was generally to look over all the cars on the premises –
which might, arguably, include her own car – even if her motive was
primarily to protect her ‘pride and joy’.
Therein lies the primary focal points: The question of how to address the
fact of a prohibition is explicitly explained in Careless in particular that an
intuitive act of self defence might be such that the employer could be
liable if the act itself was something that fell within the employee’s scope
of employment to do even if the act is itself prohibited. You will see that
this proposition immediately straddles the questions in Sneaky also.

26. You can only deal with these questions by discussing the application of
the cases holistically and the analysis above should illustrate graphically
why it would be inappropriate to disaggregate any one aspect of the case
as though it was a separate criteria eg was she in a place she should not
be in’ did she go on a frolic of her own; was the assault a spontaneous act
and therefore impliedly authorised etc. etc. Only the determination of all
these questions as a coherent whole can resolve the matter of whether
the assault fell within Janet’s scope of employment and as can be seen,
requires a consideration of the cases read as a coherent whole also.
27. It is not expected that each and every one of these aspects would be
recognized but to a greater or lesser extent, a good answer would contain
an analysis of most of them.
Analysis of Answers
28. I now will provide an analysis of what I was looking for in the answers:
Pass Answer
29. In general, a pass mark would have required students at least to identify
the majority of the critical issues and facts upon which the brief was
based and to carry out a fundamental process of legal analysis of the
same.
30. In order to achieve the equivalent of a student would have been required
generally:

a. To recognise the at least the majority of the fundamental
components of the fundamental principle that for an employer to
be liable for the conduct of an employee, the conduct of the
employee must be in the scope of her employment.
b. To demonstrate a fundamental ability to apply those principles to
the facts of the case. In the present case, this would require a
student to achieve a pass mark to at least recognise that Janet’s
initial presence at the venue was in furtherance of her
employment loosely but that her assault of Gordon might or might
not have been authorised (for whatever reason – in particular that
it was arguably neither in furtherance of the employer’s interests
nor an instinctive act of self-defence).
c. To demonstrate a fundamental appreciation of the application of
I-R-A-C.
Credit Answer
31. A credit-equivalent answer would be expected to contain the matters
required to achieve a pass (or at least the majority of them or the most
significant thereof) but to a greater level of analysis and at a more subtle
level, and in a more structured manner and with fewer of the more
generic errors referred to above.
Distinction/High Distinction Answer

32. In order to achieve the equivalent of a distinction, the answer would in
general be required to contain the content (or the majority thereof) to
achieve the equivalent of a credit but to a higher and far more explicit
level of legal analysis, and additionally contain a careful and explicit
process of legal analysis and with no fundamental syllogistic errors (which
have been discussed above).
Sample Answer
33. Due to the very wide range of possible answers (including the very
formulation and parameters of the issues) no one sample answer is
capable of capturing the entirety of the arguments and the conclusions
sometimes differ.
34. The sample answer below reflects the majority of the learning outcomes
which are sought to be made and is a good answer for that reason.
Sample answer
The issue here is whether Rattlecar is vicariously liable for Janet’s
assault of Gordon Bloggs (“Gordon”).’
It was held in Sparrow v Tortoise (1845) MLR 35 that ‘an employer is
vicariously liable for anything done by the employee that is done in the
course, or scope, of the employee’s employment’. This proposition was
affirmed as still being good law in Careless v Johnson Pty. Ltd (1980) 45

MLR 123; Cactus v Orchid (1975) MLR 23; Victorious v Medic Pty. Ltd
(1972) MLR 213.
The difficulty arises where an employee carries out an act that is not
within their line of duty or an act that is strictly forbidden as was pointed
out in Careless v Johnson. Such a scenario was considered in Cactus v
Orchid (1975) where the court advanced a proposition that an employer
could be exonerated from the act of their employee if the act was ‘so
foreign to his or her employment that the employer could regard it as …
[having gone on a frolic of his own].’
It does not inevitably follow that if an employee carries out a forbidden
act then the employer is not liable. This was pointed out in Victorious v
Medic Pty. Ltd (1972) and also confirmed in Careless v Johnson Pty. Ltd
(1980). In Victorious, a recently graduated doctor attended to patients
without being accompanied by a senior practitioner which was an act
strictly forbidden by the employer. Despite the fact that the graduate
doctor had violated the restriction, the employer was still found by the
court to be vicariously liable. This was mainly because the doctor’s
violation of the restriction did not make his act so remote to what he was
employed to do, - which was treating patients. The court in Victorious
also provided further guidance by stating that the employer’s liability
might be limited in cases where the restriction or prohibition, if violated,