Legal Analysis: Rattlecar's Vicarious Liability for Employee's Actions

This major assignment requires a legal analysis of whether Rattlecar, as an employer, is vicariously liable for the actions of its employee, Janet, who injured Gordon Bloggs. The assignment is based on an audio statement from Janet and two fictional cases, CARELESS V JOHNSON Pty. Ltd. and SNEAKY v TANTRUM Ltd., adapted from real cases. Students must apply the legal principles within the provided research material, adhering to a strict word count and I-R-A-C format. The focus is on extracting and applying legal principles to determine Rattlecar's liability, disregarding any extraneous knowledge of tort law or the Civil Liability Act. The assignment emphasizes the ability to analyze and solve legal problems within the specified parameters, demonstrating an understanding of vicarious liability in the context of employer-employee relationships. The assignment is to be submitted in word format by October 8, 2016.

Legal Process - Major Assignment
Due 2355 6 October 2016.
Preliminary Note: The characters and circumstances in the scenario are entirely
fictional/mythical and any resemblance to any person or circumstance is
entirely coincidental and unintended.
A. Assignment Question
1. Your major assignment question in short as follows:
Discuss and analyse the question of whether Rattlecar as employer is
vicariously liable for the conduct of Janet, its employee, in respect of the
injuries suffered by Gordon Bloggs at the premises of Rattlecar.
2. You will be provided with the following:
a. An audio statement of Janet.
b. Two fictional cases namely CARELESS V JOHNSON Pty. Ltd. (1980) 45
MLR 123 and SNEAKY v TANTRUM Ltd. (1984) MLR 214. These are
comprised in an extract which I have called, for convenience,
“Research Material for Major Assignment” (“Research Material”).
3. Although the cases are fictional, they are more or less adapted from
several real cases and the cases referred to in them, namely Bugge v
Brown (1919) 26 CLR 110; Deatons Pty. Ltd. v Flew (1949) 79 CLR 370;
Iqbal v London Transport Executive (1973) 16 KIR 329; and Joel v Morison
(1834) 6 Car and P 502. The reasons for using fictional cases rather than
were explained in the case brief assignment, and these reasons remain
applicable.1 There is again no requirement for you to examine the real
1See for example the use of fictional cases by the author of ULL in tute 7; the fictional casenote of Lottie in
chapter 3 of CWL (for those who read that text in preparation for lecture 2 – if you did not, do not concern
yourself); the “insurance” case referred to in CWL that we comprehensively analysed in lecture 3.

cases on which these fictional cases are based, although you are of course
welcome to do so out of interest. There is no compulsion to do so and it
will not assist greatly other than to give you some idea of what the real
law is!
4. The background to this assignment is that Gordon Bloggs has threatened
to institute proceedings against Rattlecar, Janet’s employer, for damages
that he has suffered as a result of the injuries he sustained as a result of
the beating given to him by Janet.
5. Although this is not something that you necessarily need to know for the
purposes of actually answering the question (which requires you to do no
more than to apply the law within the restrictions imposed) it might help
you understand the reason for the rule if I mentioned briefly that often,
the reason why someone sues the employer rather than the “actual”
wrong doer (here, the employee/servant, Janet) is that the employer has
more resources to pay any potential claim than the employee. You would
appreciate immediately that prima facie, this is that type of case. Janet,
being a night watchperson, is unlikely to have the means to pay any
significant sums of money by way of damages to Gordon Bloggs, and
Gordon Bloggs thus sues his employer.
6. Once again, and this is stated for no reason other than to give you some
appreciation of the dynamics of this type of claim, you will appreciate that
for this reason, in a practical sense the real “contest” in any proceedings is
not really between Janet and Rattlecar. It is between Rattlecar and
Gordon Bloggs. Gordon Bloggs will want to argue that Rattlecar should be
liable for Janet’s conduct and vice versa – the practical reason is simply
because suing Janet would be pointless as it is unlikely she would have
the means to pay any damages claim.
7. Assume that Gordon Bloggs has clear causes of action against Janet but
do not distract yourselves with analysing these – with the pivotal question
for the purposes of this assignment being simply as to whether or not
Rattlecar can be made vicariously liable as Janet’s employer for her

conduct. Therefore, do not make further enquiry into the ultimate
strength or merits of Gordon Bloggs’s case but focus on the fundamental
question in this assignment, which is whether Rattlecar can be made
vicariously liable for Janet’s conduct, and, in this regard, confine your
discussion to the strict parameters that are imposed here.
8. Whilst this, in short compass, is your question, please read on. The
remainder of this document contains explicit instructions and directions
and is designed to obviate many, if not all, the questions and pitfalls
which I might expect you otherwise to ask or fall into.
B. Learning Outcomes
9. The ability to answer a legal problem solving question, by: extracting and
identifying legal issues and principles succinctly and clearly; applying legal
principles (within the limited parameters provided herein) to a fact
situation by arguing similarities and difference with the case law, and
expressing a legal answer coherently within the word range; are the focal
points of this assignment.
10. This assignment thus explicitly engages the formal learning outcome in
the unit of legal problem solving.
Formal Parameters/length of Answer - Guidance
7. The following are the formal parameters of the assignment:
8. The length of a good answer which hones in on the essential issues and
express the answer succinctly, should be expected to be between 1,800 –
2,000 words with an absolute upper limit of 2,300 words.
9. You must use the Research Material as the ability to extract the principles
from those and to apply them is central to the learning outcomes. By the
same token, the extent of the legal principles relied upon in your answer
is to be confined to the content of the Research Material.

10. I am thus specifically directing you not to discuss any legal principles other
than as contained in the Research Material. Students who have studied
tort may be familiar with issues arising out of the Civil Liability Act also.
Knowledge of that Act must not be applied.
11. The learning outcomes will be compromised if you go beyond these
explicit parameters. Do not do so.
12. It is likely that you will be asking yourself questions such as which facts
relate to which rule of law? How should I divide up the analysis of the two
cases? Are there areas of overlap? Which fact is relevant to which
principle? Do the principles in both cases address one or both the issues or
neither? The very organisation of your paper is as much a learning
outcome as any as it goes to the heart of the expression of legal thought.
You therefore need to read the cases fairly carefully before being able to
answer these questions.
13. The reasons for suggesting that you disregard the substantive law of tort ,
and to confine yourself to the law contained in your Research Material,
are:
a. Firstly that it would be beyond the scope of the learning outcomes in
this exercise to expect you to master the substantive law of tort to
an extent that would enable you to perform a meaningful analysis of
the same.
b. Secondly (and once again) the learning outcomes essentially are to
extract, interpret, and express legal principles and these learning
outcomes are intended to be achieved on the basis of material that
has been explicitly provided rather than requiring you to perform
any further analysis of the black letter law. That is why the reference
material is strictly to be confined to the Research Material.
14. In order to understand the paramountcy of the above learning outcome, I
should even add that an answer which is actually legally “wrong” or

legally unsupportable but which error can fairly or legitimately be
attributed to some inherent absence of knowledge of tort law, will not
necessarily be subject to any loss of marks (I say “necessarily” as there
may be other legitimate reasons where a loss of marks might result) –
provided that the directions themselves have been scrupulously complied
with.
15. You might have noticed from my marginal comments to, say, the sample
answers to tute 4 where I put this philosophy into practice. I am aware
amongst other things that the law of employment, or of the duty of care
and foreseeability (and indeed of the law of tort generally) are not
completely articulated within the Research Material – but that is simply
not to the point. The real point (ie the learning outcome) is to test your
ability to extract the legal principles contained in the Research Material
(and not in any other material) and to demonstrate their understanding
and application – no more and no less and the research material that has
been provided has been carefully considered so that this is achievable –
by comparison, Annetts for example was actually a more complicated case
but understanding Annetts was within the capability of the majority of
students, even those with no, or limited, understanding of tort law itself.
16. Where you have actually applied some extraneous specific knowledge or
expertise in tort law, that will not result in the award of any additional
marks. That means, ultimately (and at the risk of repetition) that marks
will be awarded only for your ability to identify, extract, and apply the
legal principles contained in the Research Material and no more.
17. You are directed to ensure that your answers are substantially in
accordance with I-R-A-C.
18. The factual content of your answer, likewise, is to be based on no more
than the material contained in the audio of Janet herself. I remind
students (again) that this unit does not test any specific knowledge. We
have already discussed that this obviously is a reference to the legal
content. Likewise please not assume specific knowledge of factual

material outside the parameters of the scenario – particularly when it
comes to the specific knowledge relating to the businesses or trades the
subject of this question eg the customs and practices of the security
business or of crowd control.
19. The learning outcomes of this unit will be compromised if students do not
comply with these guidelines. The integrity of the exercise depends on
everyone starting from the same legal knowledge base cum level playing
field which means we must confine the legal and factual content aspect of
the exercise to material which is uniformly available to all.
20. Indeed it is acknowledged that there are areas of law, including more
recent cases, and legislation which are not contained in the Research
Material that may potentially be relevant to the question but in terms of
the learning outcomes, that is not to the point of the learning outcomes. I
remind all (again) to confine yourself to the material provided.
21. Assignment answers are only to be submitted via a link in the Assessment
area, and in word or similar format (not pdf or adobe as I intend to mark
the papers electronically). They are not to be emailed to me.
22. The due date for the submission of answers subject to any extensions
which have been validly granted, is 11.55 pm on 8 October 2015.
C. Format of Answer
23. The format of the answer should be in the style of an answer to an
examination question and not a letter.
24. The various sample answers to the IRAC format of an answer to a problem
type question, should provide you with guidance as to the suitable format
of the answer. I am not concerned about the actual style, ie the use of
headings and such like, as these are, indeed, matters merely of style and
they are variations of the formulaic I-R-A-C format.

D. Use of Footnotes and word count
25. Students are not discouraged from using footnotes and may find
personally that footnotes lend clarity to the thought process but as the
answer is to be provided in the form of an answer to an examination
question, there is no absolute insistence that you do so (ie you would not
ordinarily use footnotes in an exam).
26. The customary (and proper) use of footnotes is to use them to recite
formal citations and passages verbatim but the entirety of your actual
analysis and argument must be contained in the body of the essay and
not the footnotes. In this way, footnotes properly used would not count
towards your word limit.
27. The word counts referred to above are all exclusive of footnotes and the
very flexibility in the word count is to recognise that there is some
flexibility in the use of the format itself including the use or absence of
footnotes as the case may be.
E. Preparation for Exercise
28. The narrative is slightly lengthier than the cases that we encountered in
earlier tutes but essentially the same general fundamental techniques of
analysis as were applied to legal problem solving in your earlier tutes
should continue to apply.
29. The script will prima facie not be provided – It will be beneficial for you to
explore for yourselves the legal issues from a witness’s statement as part
of your training. It is expressed in colloquial language with no particular
structure and at times lacks specificity and precision and detail and
“jumps” – as you would expect when a story is told in lay language. If a
student does have any particular need for the script then the request will
be considered.

30. Prima facie I would not regard a difficulty in processing the information
mentally nor the inconvenience of mastering the information, as being
valid reasons but I remain prepared to consider each request individually.
I remind all that language proficiency itself is something that I need to
assess (something touched on at the outset) and obliquely, your ability to
comprehend Janet’s oral statement tests this. On the other hand, if you
do not understand a particular word, tell me where in the narration it
appears and I might be prepared to provide some guidance as to its
meaning (if you are really “stuck”) (something different from requesting a
copy of the script in its totality).
31. The following are some comments to assist you with your preparation for
this assignment:
a. Examine the various sample answers provided to you from time to
time (as they will indicate the format of the answer). Obviously the
fact that there are now more complex facts to be dealt with means
that you need to think through the structure more carefully.
b. Read through lectures 5, 6 and 7 for some further tips on how to
organise the structure of a legal problem and indeed how to perform
legal problem solving in the context of preparing an answer to an
exam question (in particular I draw your attention to the examples of
the application of the IRAC structure).
c. Examine the two decisions of His Honour Justice McKechnie that I
have made available for examples of how a court dealt with multiple
issues and note the IRAC-centred structure of the answer. That may
assist you also with the preparation of the internal structure of your
own answer (though again the court recited facts whereas you
ordinarily would not in this exercise in the same way).
d. Note the way in which cases which are referred to within the cases
are “used”. The treatment of cases discussed within the authorities
has been touched on elsewhere eg see paragraphs 2f(vi) and (vii) of

tute 3. Obviously not every point, or every fact referred to in the
cases within the cases, is entirely relevant, and some need to be
emphasised or extracted. Here, please assume that the cases which
are cited within the cases themselves have been accurately cited or
reproduced by the respective judges and that those cases
themselves can be reliably cited in your answer (though how you
“use” them and how if at all they are relevant, obviously goes to the
core of the learning outcomes).
32. Please refrain from expressing evidentiary and factual inconsistencies
within the scenario. Some discretion and flexibility is required if the
integrity of the exercise is to be maintained. Factual scenarios such as this
are almost never complete and it is always possible to find evidentiary
and factual inconsistencies or areas of incompleteness. For a start, simply
by way of an obvious example, the question does not set out a complete
catalogue of the duties and obligations of a typical night watchperson
(and I will touch on the question of legitimate assumptions and the such
like further below) but this lack of completeness in the narrative should
not hinder you from attempting the question, and thereby engaging the
learning outcomes which are largely to apply the law to the facts.
33. To some extent please take the factual events related more or less at face
value. The learning outcomes and integrity of this exercise would be very
severely compromised if evidentiary difficulties or improbabilities or
inaccuracies were analysed.
34. The integrity of this and every exercise requires your utmost cooperation.
Remember that critical analysis is different from “being critical” and the
primary objective here is to test your ability to critically analyse. The
comments that were made in your instructions to your case brief
assignment concerning this aspect will remain pertinent, but given that
this is the second assignment, there is a significantly greater expectation
from you as students and this requirement should be observed with even
greater stringency.

35. When in doubt, the crucial question that you ask yourself, before raising
some evidentiary difficulty, is does the observation advance the learning
outcomes of the exercise? Does it show how I understand and apply the
cases? Does it show that I know how to apply the case law? Etc.
36. It is pointless to raise some evidentiary or factual difficulty that simply
does not give you the chance to explore and analyse the learning
outcomes – which, here, are to identify relevant issues; to understand
and apply the legal principles contained in the Research Material in a
process of problem solving; and to argue similarities and differences
between the cases and your own situation.
37. Please assume that Gordon Bloggs has at least a supportable legal basis
for the claims arising out of his injury, and that these are valid heads of
damage. No further enquiry need to be made either as to the basis or the
quantum. This is an oblique reminder (again) that the primary question
here is simply that of whether Rattlecar is liable for Janet’s conduct and
that in order to explore this can fairly be achieved, within the limited
parameters of these learning outcomes, by an application of the case law
in the Research Material, to the facts.
38. By way of example only, it could be legitimate (depending on what else is
said) to say that The fact that Janet was actually rostered to be on duty
etc. etc. might/might not be relevant but…(and go on with the analysis)
39. It is even legitimate to comment that further enquiries as to (and here you
would discuss briefly the matters as to which you might make further
enquiry in order to form a more certain view) before a more certain view
can be expressed as to whether Janet was acting in the course of his
employment (without giving too much away, this is an obvious focal point
of the entire exercise) but you would ordinarily do so after analysing the
case as best you can, based on the material that is available – simply by
way of example (a bland one) it might be legitimate to say something
along the lines that The scenario suggests that Janet might have been at

liberty to ask Gordon Bloggs what he was doing there etc. etc..To say
more would be to provide more assistance than is merited!
40. A clear connection would always need to be demonstrated between the
enquiry that you have identified, and why it is said that it has some
impact on the validity of the learning outcomes
41. It would by the same token be entirely inappropriate to say blandly that
there is no evidence that Janet hit Gordon Bloggs/we do not know that
Rattlecar told Janet not to physically confront an intruder, was it in
writing? We do not know what the scope of duty of a night watchperson is
and it is not completely stated…Janet can be prosecuted for assault etc.
Do you see the difference? This type of observation has utterly no impact
on any legitimate learning outcome and does not legitimately engage the
question.
42. We come back again and again to the same point – if you experience
difficulty in ascertaining if a point is legitimately to be made, the best
thing to do is to ask yourselves whether the point, if made, has some
impact on the validity of the learning outcomes of the exercise – namely
that of extracting and applying legal principles as contained in the
Research Material, and of expressing applying those legal principles to the
facts.
43. Relatedly, some facts are simply irrelevant – or, put more specifically, if
you cannot find some legal principle to which they are relevant, and then
explicitly explore the legal principle by applying them against those facts,
then those facts are of no use whatsoever and to restate an expression I
have used a few times already, this will not have any impact on the
validity of the learning outcomes.
44. This exercise will test your ability to recognise facts which are relevant, as
well as your ability to argue the application of legal principles to those
facts. This, as you can see, brings us full circle to the expression of the

minor premise in a syllogism or, what is essentially the same thing, the
“application” in I-R-A-C.