Quick tort problem question! Please help! Urgent.
"Roger suffers head injuries in a road accident caused by thenegligence of Peter. Roger is taken to hospital where he is seen bySusan, a trainee doctor working in the Accidents andEmergency department. Susan concludes that his injuries are superficialand merely cleans up and dresses the wounds before discharging Roger.The next day, Roger collapses. He is found to have sufferedirreversible brain damage.” Discuss
Essentially I've started the question and have started to go through the principles of negligence and the tests for each stage. Do I even need to do that for Peter if it's been assumed that he's negligent? Should I be doing that for Susan instead?
Also, which case can help me out regarding Susan and brain damage?
Thanks
.
Essentially I've started the question and have started to go through the principles of negligence and the tests for each stage. Do I even need to do that for Peter if it's been assumed that he's negligent? Should I be doing that for Susan instead?
Also, which case can help me out regarding Susan and brain damage?
Thanks
.Original post by lawobiter
Generally, where there is an established duty of care (such as the established duty between road-users), you do not need to do ponder whether or not one exists – i.e. by exploring the neighbour or Caparo tests. You do, however, need to explore whether or not there has been a breach of that duty and whether or not the breach is the immediate or material causation to the harm. In assessing whether or not Peter has breached his duty of care, the court will apply an objective test to ascertain whether, in consideration of the circumstances, the reasonable man would or would not carry act such acts or omissions (Blyth v Birmingham Waterworks). Once a breach is apparent, you should explore whether or not the factual and legal causation tests are met.
There must be a causal link between Roger's injuries and Peter's breach of the duty of care. First, it must be established that Roger's injuries were the factual cause of his loss, in the sense that the injuries would not have occurred 'but for' Peter's negligence. Here, you should apply the 'but for' test (Barnett v Chelsea & Kensington Hospital [1969]).
The second scope of liability is the question of law in relation to novus actus intervenes and remoteness. Peter is only responsible for types of loss that are a reasonably foreseeable consequence of his negligence. In The Wagon Mound (no 1) [1961] AC 38, it was held that if a reasonable person would not have foreseen the damage, it cannot be recovered. Likewise, there must be no intervening factor which breaks the chain of causation (novus actus interveniens). Of relevance is Susan's actions. If Susan’s acts were foreseeable as a result of her negligence, the chain of causation remains. You must discuss whether or not the chain is still unsevered this can be done by discussing the original uinjuries suffered and whether or not the actions thereafter constitute a break.
There is a long-established principle that a person must take their victim as they find him (Smith v Leech Brain & Co [1962] ). Therefore, even if brain damage is an unforeseeable circumstance as to Peter’s original breach of duty, he must take him as he finds him and he will be liable, notwithstanding the lack of foreseeability. The first question to posit is: would Roger have suffered the brain injuries but for Peter's negligence? If yes, factual causation may not be met. If Roger already had pre-existing brain injuries and the crash materially exacerbated that, is he liable under the egg skull shell rule? You should analyse and either apply and disregard causation. Are their multiple causes? Could both parties be held liable for the injuries? – i.e. Peter with respect to the original crash and possible furtherance of the injuries and Susan failing to do what a reasonably prudent doctor would do? Again, a bad result does not necessarily render it negligence; it must be demonstrated that her actions fell far below that of a doctor in the relevant community. Apply the Bolitho test (described below).
Susan
It is clear that Susan owes a duty of care to Roger as a doctor; however, it must be determined that she was in breach of her duty and that the breach was the cause of the harm.
To prove a breach of duty on the doctor’s part, you should apply the Bolam test. In Bolam v Friern Hospital Management Committee [1957] it was held, inter alia, that a doctor will not be considered negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Notwithstanding that, if she did act in accordance to accepted practices, but the conclusion was illogical, she will still be negligent (Bolitho (Deceased) v City and Hackney HA [1993]). It does not matter that Susan is a trainee; she is adjudged to owe the same standard of care as a qualified doctor (Willsher v Essex Area Health Authority [1988]). Her experience does not negate any supposed liability on her part.Therefore, any breach rests on whether or not her actions would be considered reasonable by the majority of other doctors. It is not enough to show that another doctor would have acted differently.
Having proved a breach of duty, it is necessary to demonstrate that the breach of duty caused the injury.
Factual causation may be established by the standard “but for” test, that is, “but for” the negligence, would the claimant have suffered loss? If the answer is yes, factual causation is not present; if the answer is no, then it is present. Again, the original crash is of pertinence. Legal causation must also be established. You should apply the test of novus actus interveniens and remoteness. It has been held that for medical treatment to break the chain of causation, it must be grossly negligent. You should consider mutitiple discreet causes - i.e. where there are a number of agents but only one of which was the result of the Defendant's negligence (Wilsher v Essex AHA). Likewise, are there multiple cumulative causes? For example, where a nuber of "agents" can be shown to materallt contributed to an indivisible injury, the defendant will only be liable if one of those agents is the result of his negligence. If applicable, is the injury divisible and did the negligene has more than de minimis contribution to it?
Next, you should consider whether loss of chance applies; that is, with reasonable care, would the injury have been diagnosed earlier – and, if so, would that have made a difference? There must be more than 50% chance that Roger would have survived the injuries had there been an earlier diagnosis (Hotson v East Berkshire HA). The proximity of time between the original purported negligence (e.g. the misdiagnosis) and the collapsing is of relevance here. It is less than probable that Roger would have been cured over a period of 24 hours. It is for a medical expert to demonstrate that Roger is worse off on account of Susan discharging him.
Again, with regards to liability you should determine whether or not either or both are liable for the injuries based on the tests of causation. Where both parties are adjudged to be responsible, the loss may be apportioned between those parties (Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2001).
There must be a causal link between Roger's injuries and Peter's breach of the duty of care. First, it must be established that Roger's injuries were the factual cause of his loss, in the sense that the injuries would not have occurred 'but for' Peter's negligence. Here, you should apply the 'but for' test (Barnett v Chelsea & Kensington Hospital [1969]).
The second scope of liability is the question of law in relation to novus actus intervenes and remoteness. Peter is only responsible for types of loss that are a reasonably foreseeable consequence of his negligence. In The Wagon Mound (no 1) [1961] AC 38, it was held that if a reasonable person would not have foreseen the damage, it cannot be recovered. Likewise, there must be no intervening factor which breaks the chain of causation (novus actus interveniens). Of relevance is Susan's actions. If Susan’s acts were foreseeable as a result of her negligence, the chain of causation remains. You must discuss whether or not the chain is still unsevered this can be done by discussing the original uinjuries suffered and whether or not the actions thereafter constitute a break.
There is a long-established principle that a person must take their victim as they find him (Smith v Leech Brain & Co [1962] ). Therefore, even if brain damage is an unforeseeable circumstance as to Peter’s original breach of duty, he must take him as he finds him and he will be liable, notwithstanding the lack of foreseeability. The first question to posit is: would Roger have suffered the brain injuries but for Peter's negligence? If yes, factual causation may not be met. If Roger already had pre-existing brain injuries and the crash materially exacerbated that, is he liable under the egg skull shell rule? You should analyse and either apply and disregard causation. Are their multiple causes? Could both parties be held liable for the injuries? – i.e. Peter with respect to the original crash and possible furtherance of the injuries and Susan failing to do what a reasonably prudent doctor would do? Again, a bad result does not necessarily render it negligence; it must be demonstrated that her actions fell far below that of a doctor in the relevant community. Apply the Bolitho test (described below).
Susan
It is clear that Susan owes a duty of care to Roger as a doctor; however, it must be determined that she was in breach of her duty and that the breach was the cause of the harm.
To prove a breach of duty on the doctor’s part, you should apply the Bolam test. In Bolam v Friern Hospital Management Committee [1957] it was held, inter alia, that a doctor will not be considered negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Notwithstanding that, if she did act in accordance to accepted practices, but the conclusion was illogical, she will still be negligent (Bolitho (Deceased) v City and Hackney HA [1993]). It does not matter that Susan is a trainee; she is adjudged to owe the same standard of care as a qualified doctor (Willsher v Essex Area Health Authority [1988]). Her experience does not negate any supposed liability on her part.Therefore, any breach rests on whether or not her actions would be considered reasonable by the majority of other doctors. It is not enough to show that another doctor would have acted differently.
Having proved a breach of duty, it is necessary to demonstrate that the breach of duty caused the injury.
Factual causation may be established by the standard “but for” test, that is, “but for” the negligence, would the claimant have suffered loss? If the answer is yes, factual causation is not present; if the answer is no, then it is present. Again, the original crash is of pertinence. Legal causation must also be established. You should apply the test of novus actus interveniens and remoteness. It has been held that for medical treatment to break the chain of causation, it must be grossly negligent. You should consider mutitiple discreet causes - i.e. where there are a number of agents but only one of which was the result of the Defendant's negligence (Wilsher v Essex AHA). Likewise, are there multiple cumulative causes? For example, where a nuber of "agents" can be shown to materallt contributed to an indivisible injury, the defendant will only be liable if one of those agents is the result of his negligence. If applicable, is the injury divisible and did the negligene has more than de minimis contribution to it?
Next, you should consider whether loss of chance applies; that is, with reasonable care, would the injury have been diagnosed earlier – and, if so, would that have made a difference? There must be more than 50% chance that Roger would have survived the injuries had there been an earlier diagnosis (Hotson v East Berkshire HA). The proximity of time between the original purported negligence (e.g. the misdiagnosis) and the collapsing is of relevance here. It is less than probable that Roger would have been cured over a period of 24 hours. It is for a medical expert to demonstrate that Roger is worse off on account of Susan discharging him.
Again, with regards to liability you should determine whether or not either or both are liable for the injuries based on the tests of causation. Where both parties are adjudged to be responsible, the loss may be apportioned between those parties (Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2001).
If I could give you a medal, I would. Thank you very much for this, it's very detailed and very useful.
Two further questions:
1) Regarding Peter, I understand that in order to establish negligence, you should go through that sequence. But, if it is in the question, that he as acted negligently that is (i.e. assumed), is it necessary for me to establish this?
2) With Susan, can't I talk about the fact that her omission doesn't meet the standard of care? And further, confirm it with Barnet regarding emergency situations?
Original post by JustForLawls
If I could give you a medal, I would. Thank you very much for this, it's very detailed and very useful.
Two further questions:
1) Regarding Peter, I understand that in order to establish negligence, you should go through that sequence. But, if it is in the question, that he as acted negligently that is (i.e. assumed), is it necessary for me to establish this?
2) With Susan, can't I talk about the fact that her omission doesn't meet the standard of care? And further, confirm it with Barnet regarding emergency situations?
Two further questions:
1) Regarding Peter, I understand that in order to establish negligence, you should go through that sequence. But, if it is in the question, that he as acted negligently that is (i.e. assumed), is it necessary for me to establish this?
2) With Susan, can't I talk about the fact that her omission doesn't meet the standard of care? And further, confirm it with Barnet regarding emergency situations?
You're welcome, I accept the medal regardless!
1) It's difficult to say without looking at the whole question - is there any guidance? Has your lecturer told you to do so? In general, you must find that a duty of care subsists where it is not established. Cases involving road-users attach an established duty of care; that is, they must owe a duty of care to other users who it is reasonably foreseeable will be affected by their road use and to drive with the care that a reasonably prudent driver would do (experience is irrelevant: see, for example, Nettleship v Weston).
2) Both acts and omissions are relevant; an omission can give rise to liability as the 'special relationship' subsists. However, in relation to professional persons the standard test is Bolam - i.e. whether or not the actions conform to that of a reasonably prudent doctor in the same capacity.
Are you referring to Barnett v Kensington Hospital? If so, it was held that according to the 'but for' approach to negligence, the defendant did not cause the death; he would have died regardless of the treatment. This is pertinent to your situation with regards to Roger and whether or not any subsequent tests or treatment would have changed the outcome. The extent of the brain damage is relevant.
(edited 8 years ago)
Original post by JustForLawls
If I could give you a medal, I would. Thank you very much for this, it's very detailed and very useful.
Two further questions:
1) Regarding Peter, I understand that in order to establish negligence, you should go through that sequence. But, if it is in the question, that he as acted negligently that is (i.e. assumed), is it necessary for me to establish this?
2) With Susan, can't I talk about the fact that her omission doesn't meet the standard of care? And further, confirm it with Barnet regarding emergency situations?
Two further questions:
1) Regarding Peter, I understand that in order to establish negligence, you should go through that sequence. But, if it is in the question, that he as acted negligently that is (i.e. assumed), is it necessary for me to establish this?
2) With Susan, can't I talk about the fact that her omission doesn't meet the standard of care? And further, confirm it with Barnet regarding emergency situations?
How is a student ever going to learn if you do it for them? Give them guides by all means, point them in the right direction, but at the end of the day it's this person who has to decide on the facts whether any person is liable. How are they ever going to understand law if you do it for them.
Original post by Democracy2013
How is a student ever going to learn if you do it for them? Give them guides by all means, point them in the right direction, but at the end of the day it's this person who has to decide on the facts whether any person is liable. How are they ever going to understand law if you do it for them.
I agree!
Plus he speaks of agents under Wilsher when this arguments is generally only opposable to a claim of material contribution to risk under Mcghee/fairchild, which acts as an exception to the but/for test when one agent caused the harm, one being negligent and the other not; this then must only be proved on a more than a de minimis basis. When there are multiple agents such as 2 different types of toxins then each must be proved on a balance of probability. You're confusing the guy, he's gonna start looking at Greg v Scott/Wilsher/Mcghee and get entangled in complex causation/risk issues when it's a simple break of chain of causation issue + minimal reference to loss of chance under Hotson.
Original post by yastyb
I agree!
Plus he speaks of agents under Wilshere when this arguments is generally only opposable to a claim of material contribution to risk under Mcghee/fairchild, which acts as an exception to the but/for test when one agent caused the harm, one being negligent and the other not; this then must only be proved on a more than a de minimis basis. When there are multiple agents such as 2 different types of toxins then each must be proved on a balance of probability. You're confusing the guy, he's gonna start looking at Greg v Scott/Wilsher/Mcghee and get entangled in complex causation/risk issues when it's a simple break of chain of causation issue + minimal reference to loss of chance under Hotson.
Plus he speaks of agents under Wilshere when this arguments is generally only opposable to a claim of material contribution to risk under Mcghee/fairchild, which acts as an exception to the but/for test when one agent caused the harm, one being negligent and the other not; this then must only be proved on a more than a de minimis basis. When there are multiple agents such as 2 different types of toxins then each must be proved on a balance of probability. You're confusing the guy, he's gonna start looking at Greg v Scott/Wilsher/Mcghee and get entangled in complex causation/risk issues when it's a simple break of chain of causation issue + minimal reference to loss of chance under Hotson.
It was not my intention to confuse. Far from it. I merely stated material contribution and multiple agents for the asker to get a broader picture of the tort of negligence. He must carry out further research. I fully expect him to do so. It is NOT, and I do not profess it to be, a complete answer. As you will see it was written at 2:30 AM in the morning. The asker can merely advance upon what I have written - deliberation of the facts is essential. failing to do so would be disastrous. Wilsher was a 'but for' case and promulgated that no presumption could be made. It is also relevant in considering the experience of the doctor, is it not?the McGhee principle does not apply unless there is only one cause of the injury. Having information and disregarding it is much better then not having it at all - many top barristers have taught me such. Why not go through a cross-pollination of ideas? Why not expand one's knowledge? Why not understand the basics? Is it necessary just to know things that are relevant to your problem question? That could be disadvantageous. I do agree, however, that novus actus interviens should be applied to determine whether or not the intervening factor(s) break the chain of causation.
Moreover, 'Yasty B' you don't know me so please don't be familiar. Who is 'he'? What gives you such presumption that I am male? Moreover, are you saying the asker is incapable of disregarding basic principles of tort? Any lawyer or law student should know that research is their 'stock in trade.' If one cannot do so, perhaps one is veering into the wrong profession? If members like you wish to be pejorative, feel free. Feel free to do so even more. My answer is not determinative; I'm sure the asker has the requisite cognitive capacity to differentiate basic principles of tort. University education teaches one how to analyse complex fact patterns, and how to construct and win arguments. Being so close minded in law that all ideas stop at the part of your skill guarding the prefrontal cortex is indicative of a mind whose development has a lack of communal knowledge. Providing information which can be discounted is not giving the answer now, is it?
(edited 8 years ago)
Original post by Democracy2013
How is a student ever going to learn if you do it for them? Give them guides by all means, point them in the right direction, but at the end of the day it's this person who has to decide on the facts whether any person is liable. How are they ever going to understand law if you do it for them.
If I were looking for a complete answer, I'd completely agree. But my pressing question concerned a technicality - a feature universal to any problem question. So, really, albeit the guy went above and beyond, it's really no hindrance to my learning; I am not writing his essay, rather I'm referring to the pages of notes that I have done to construct it. I don't think anyone in law can be successful if they merely copy and paste what others have written.
Original post by lawobiter
It was not my intention to confuse. Far from it. I merely stated material contribution and multiple agents for the asker to get a broader picture of the tort of negligence. He must carry out further research. I fully expect him to do so. It is NOT, and I do not profess it to be, a complete answer. As you will see it was written at 2:30 AM in the morning. The asker can merely advance upon what I have written - deliberation of the facts is essential. failing to do so would be disastrous. Wilsher was a 'but for' case and promulgated that no presumption could be made. It is also relevant in considering the experience of the doctor, is it not?the McGhee principle does not apply unless there is only one cause of the injury. Having information and disregarding it is much better then not having it at all - many top barristers have taught me such. Why not go through a cross-pollination of ideas? Why not expand one's knowledge? Why not understand the basics? Is it necessary just to know things that are relevant to your problem question? That could be disadvantageous. I do agree, however, that novus actus interviens should be applied to determine whether or not the intervening factor(s) break the chain of causation.
Moreover, 'Yasty B' you don't know me so please don't be familiar. Who is 'he'? What gives you such presumption that I am male? Moreover, are you saying the asker is incapable of disregarding basic principles of tort? Any lawyer or law student should know that research is their 'stock in trade.' If one cannot do so, perhaps one is veering into the wrong profession? If askers like you wish to be pejorative, feel free. Feel free to do so even more. My answer is not determinative; I'm sure the asker has the requisite cognitive capacity to differentiate basic principles of tort. University education teaches one how to analyse complex fact patterns, and how to construct and win arguments. Being so close minded in law that all ideas stop at the part of your skill guarding the prefrontal cortex is indicative of a mind whose development has a lack of communal knowledge. Providing information which can be discounted is not giving the answer now, is it?
Moreover, 'Yasty B' you don't know me so please don't be familiar. Who is 'he'? What gives you such presumption that I am male? Moreover, are you saying the asker is incapable of disregarding basic principles of tort? Any lawyer or law student should know that research is their 'stock in trade.' If one cannot do so, perhaps one is veering into the wrong profession? If askers like you wish to be pejorative, feel free. Feel free to do so even more. My answer is not determinative; I'm sure the asker has the requisite cognitive capacity to differentiate basic principles of tort. University education teaches one how to analyse complex fact patterns, and how to construct and win arguments. Being so close minded in law that all ideas stop at the part of your skill guarding the prefrontal cortex is indicative of a mind whose development has a lack of communal knowledge. Providing information which can be discounted is not giving the answer now, is it?
As I explained above, this attack on you need not apply here in the current case. As we both know, I'm not going to copy and paste this essay - or even re-write it. As you saw, my initial question was not chiefly concerned with content, but technicality. So while you went above and beyond - very nicely and usefully - in your answer, you need not worry about that silly attack; I'm very grateful as it clarified my initial technical query.
Original post by JustForLawls
As I explained above, this attack on you need not apply here in the current case. As we both know, I'm not going to copy and paste this essay - or even re-write it. As you saw, my initial question was not chiefly concerned with content, but technicality. So while you went above and beyond - very nicely and usefully - in your answer, you need not worry about that silly attack; I'm very grateful as it clarified my initial technical query.
Kudos to you, sir! I'm happy to help. In the future, I will add a disclaimer to my answers. It was written at 2:30 AM. It is never my intention to do someone's work for them. Helping them to apply or disapply facts (which is the case here) is satisfactory enough.
Original post by lawobiter
Kudos to you, sir! I'm happy to help. In the future, I will add a disclaimer to my answers. It was written at 2:30 AM. It is never my intention to do someone's work for them. Helping them to apply or disapply facts (which is the case here) is satisfactory enough.
No problem
. And 2:30am or otherwise, it's solid. Just a quick question, when you say 'apply' the Bolitho/Bolam tests, is what I am doing correct? I'm essentially 'applying' them, as far as a lawyer without the body of medical opinion can, and exploring the different legal avenues depending on the body's opinion?Original post by JustForLawls
No problem . And 2:30am or otherwise, it's solid. Just a quick question, when you say 'apply' the Bolitho/Bolam tests, is what I am doing correct? I'm essentially 'applying' them, as far as a lawyer without the body of medical opinion can, and exploring the different legal avenues depending on the body's opinion?
. And 2:30am or otherwise, it's solid. Just a quick question, when you say 'apply' the Bolitho/Bolam tests, is what I am doing correct? I'm essentially 'applying' them, as far as a lawyer without the body of medical opinion can, and exploring the different legal avenues depending on the body's opinion?It is merely one stage in determining liability (duty owed + breach of the duty + causation = prima facie case). The Bolam test, as enunciated in Bolam v Friern Hospital Management Committee [1957], is a test to determine the breach of duty owed. It is a test which provides that advice or treatment must conform to the acceptable standard of medical care. It is relied on by a claimant in a proceedings. However, it will not suffice to show that another doctor in the relevant community would have acted differently. The actions of a doctor are measured against that of a doctor in the same role as the defendant. Junior doctors do not owe a lower standard of care (Wilsher v Essex AHA). Bolitho concerns actions which may conform to the standard but are so 'illogical' to render them negligent. It may not be necessary to opine on the conclusion of what a medical professional provide, but it is an evidential burden that must be passed by a prospective claimant in establishing a breach of duty of care. It is generally satisfied by expert medical evidence.
(edited 8 years ago)
Original post by lawobiter
It was not my intention to confuse. Far from it. I merely stated material contribution and multiple agents for the asker to get a broader picture of the tort of negligence. He must carry out further research. I fully expect him to do so. It is NOT, and I do not profess it to be, a complete answer. As you will see it was written at 2:30 AM in the morning. The asker can merely advance upon what I have written - deliberation of the facts is essential. failing to do so would be disastrous. Wilsher was a 'but for' case and promulgated that no presumption could be made. It is also relevant in considering the experience of the doctor, is it not?the McGhee principle does not apply unless there is only one cause of the injury. Having information and disregarding it is much better then not having it at all - many top barristers have taught me such. Why not go through a cross-pollination of ideas? Why not expand one's knowledge? Why not understand the basics? Is it necessary just to know things that are relevant to your problem question? That could be disadvantageous. I do agree, however, that novus actus interviens should be applied to determine whether or not the intervening factor(s) break the chain of causation.
Moreover, 'Yasty B' you don't know me so please don't be familiar. Who is 'he'? What gives you such presumption that I am male? Moreover, are you saying the asker is incapable of disregarding basic principles of tort? Any lawyer or law student should know that research is their 'stock in trade.' If one cannot do so, perhaps one is veering into the wrong profession? If members like you wish to be pejorative, feel free. Feel free to do so even more. My answer is not determinative; I'm sure the asker has the requisite cognitive capacity to differentiate basic principles of tort. University education teaches one how to analyse complex fact patterns, and how to construct and win arguments. Being so close minded in law that all ideas stop at the part of your skill guarding the prefrontal cortex is indicative of a mind whose development has a lack of communal knowledge. Providing information which can be discounted is not giving the answer now, is it?
Moreover, 'Yasty B' you don't know me so please don't be familiar. Who is 'he'? What gives you such presumption that I am male? Moreover, are you saying the asker is incapable of disregarding basic principles of tort? Any lawyer or law student should know that research is their 'stock in trade.' If one cannot do so, perhaps one is veering into the wrong profession? If members like you wish to be pejorative, feel free. Feel free to do so even more. My answer is not determinative; I'm sure the asker has the requisite cognitive capacity to differentiate basic principles of tort. University education teaches one how to analyse complex fact patterns, and how to construct and win arguments. Being so close minded in law that all ideas stop at the part of your skill guarding the prefrontal cortex is indicative of a mind whose development has a lack of communal knowledge. Providing information which can be discounted is not giving the answer now, is it?
You are obviously a learned man/woman The way you write is suggestive of that, most especially in how you defend your point, which taken to its core may be unsustainable. In effect, you are saying that this person should be given a wider view of tort law and that having more information does not hurt. I must object to that. If we look at the type of question this person is asking we can conclude, with all due respect, that this person does not know where to start from. This person has an illusive understanding of the very fundamental principles of tort law. It follows that whatever you tell him/her in your answer he/she will accept as fact. If you suggest that Wilsher is applicable because there is more than one agent and that thus each must be proved on a balance of probabilities you are suggesting to this person that that would be the answer to the question he is asking. If you extend the ambit of your answer to other things which could apply speculatively or in the abstract and which do not have direct application to that factual scenario, you are misrepresenting to someone who does not have the requisite knowledge to distill and ponder what you say into thinking that that is the right answer to that particular question. You would therefore be creating confusion.
These guys asking question on TSR aren't aiming for a high first at a top uni if you see what I mean. They want a quick 'fix' to jot down in their tutorials or their essays. I'm not saying that the person who is asking this question is stupid, most probably not. They are just too lazy to go look for the answers in the books which are very far from being complex. Now I understand that you might take a lot of heart in answering questions and that's great. But the way in which you answer them like Democracy 2013 said does not help them because you're typing out a full answer and they're not learning. Secondly because as I said these people don't have the knowledge to challenge what you say. In Wilsher the court does talk about the standard of care for doctors which was a duty/breach question but they based their whole judgment on the fact that causation failed because there were several agents (malformation of the eye socket, the negligence and two other things I can't remember). That is not relevant here, at least not in this particular fact scenario. If you speak about different agents in an exam for this particular question you WILL get marked down. This is not about exchanging or 'cross-pollinating' ideas this is about relevance and precision in the legal analysis. That notwithstanding, if you want to engage in debating the intricacies of tort law I'd be more than happy to do that with you or someone else who is as good or better than you, but you see how doing so on TSR for particular fact scenarios can be detrimental?
I hope you don't take this as an offense to you, again you appear to be a learned person.
(edited 8 years ago)
Original post by yastyb
You are obviously a learned man/woman The way you write is suggestive of that, most especially in how you defend your point, which taken to its core may be unsustainable. In effect, you are saying that this person should be given a wider view of tort law and that having more information does not hurt. I must object to that. If we look at the type of question this person is asking we can conclude, with all due respect, that this person does not know where to start from. This person has an illusive understanding of the very fundamental principles of tort law. It follows that whatever you tell him/her in your answer he/she will accept as fact. If you suggest that Wilsher is applicable because there is more than one agent and that thus each must be proved on a balance of probabilities you are suggesting to this person that that would be the answer to the question he is asking. If you extend the ambit of your answer to other things which could apply speculatively or in the abstract and which do not have direct application to that factual scenario, you are misrepresenting to someone who does not have the requisite knowledge to distill and ponder what you say into thinking that that is the right answer to that particular question. You would therefore be creating confusion.
These guys asking question on TSR aren't aiming for a high first at a top uni if you see what I mean. They want a quick 'fix' to jot down in their tutorials or their essays. I'm not saying that the person who is asking this question is stupid, most probably not. They are just too lazy to go look for the answers in the books which are very far from being complex. Now I understand that you might take a lot of heart in answering questions and that's great. But the way in which you answer them like Democracy 2013 said does not help them because you're typing out a full answer and they're not learning. Secondly because as I said these people don't have the knowledge to challenge what you say. In Wilsher the court does talk about the standard of care for doctors which was a duty/breach question but they based their whole judgment on the fact that causation failed because there were several agents (malformation of the eye socket, the negligence and two other things I can't remember). That is not relevant here, at least not in this particular fact scenario. If you speak about different agents in an exam for this particular question you WILL get marked down. This is not about exchanging or 'cross-pollinating' ideas this is about relevance and precision in the legal analysis. That notwithstanding, if you want to engage in debating the intricacies of tort law I'd be more than happy to do that with you or someone else who is as good or better than you, but you see how doing so on TSR for particular fact scenarios can be detrimental?
I hope you don't take this as an offense to you, again you appear to be a learned person.
These guys asking question on TSR aren't aiming for a high first at a top uni if you see what I mean. They want a quick 'fix' to jot down in their tutorials or their essays. I'm not saying that the person who is asking this question is stupid, most probably not. They are just too lazy to go look for the answers in the books which are very far from being complex. Now I understand that you might take a lot of heart in answering questions and that's great. But the way in which you answer them like Democracy 2013 said does not help them because you're typing out a full answer and they're not learning. Secondly because as I said these people don't have the knowledge to challenge what you say. In Wilsher the court does talk about the standard of care for doctors which was a duty/breach question but they based their whole judgment on the fact that causation failed because there were several agents (malformation of the eye socket, the negligence and two other things I can't remember). That is not relevant here, at least not in this particular fact scenario. If you speak about different agents in an exam for this particular question you WILL get marked down. This is not about exchanging or 'cross-pollinating' ideas this is about relevance and precision in the legal analysis. That notwithstanding, if you want to engage in debating the intricacies of tort law I'd be more than happy to do that with you or someone else who is as good or better than you, but you see how doing so on TSR for particular fact scenarios can be detrimental?
I hope you don't take this as an offense to you, again you appear to be a learned person.
I certainly do not take 'offence.' You may continue with your ad hominen attacks, you may even be proud of them; I, however, find them somewhat distasteful. Likewise, reductio ad absurdum is not the answer to a serious debate. You are starting to show a petrous nature. My professional career speaks for itself; how does one judge if another is 'better'? Can it be objective? It was a few years since I studied 'black-letter law'. The harsh reality is inherently disparate from the nebulous teachings at an institution.
Clearly one doesn't understand the precept of studying law. I did not state it was a complete answer; without interposing a Latin aphorism, surely the thing speaks for itself? Does reading a textbook not do the same thing? How about learning from a tutor? Would it be wise to disregard the principles which are not correlative to a problem question? Would omitting it not provide a complete answer - the very thing you are trying to advocate against? When one studies a law degree, it is customary that a problem question offered pre-exam will not arise again. Infusing one's brain with the general concept of tort, allowing oneself to disapply that to a problem question is surely more effective than disregarding it from the outset? Congratulations on your misrepresentation point too - again, I have not said that the point is relevant. However, the asker knows that; would he have known that without it being proffered? A student studying law at university should be able to readily disapply basic concepts of tort. It is one of the first few things that is taught. Proferring information allowing for the furtherance of the basic knowledge is not misrepresentation; far from it. I never alluded to the conclusion that it applies now did I? When I was at university I would be pleased to consider a range of encompassing ideas and dis-apply them as and when fit. When one reads a skeleton argument, it is often permeated with facts not so conducive to liability, rather, they are proffered to assist the overall process of litigation in discounting a concept.
Conflicting with facts does not make one right. There may even be two or three sides to a story. You can call a Blazer horse a Guernsey cow, but it still won't give milk. Likewise, you may object as much as you want. You may tell me where Sherlock Homes is buried, and that's fine by me too.
Again opining on whether or not you believe the asker, whom I may add has been respectful throughout this discourse, is clueless is disrespectful - many seek second opinions, many seek clarification and many even proffer such a question to see what other law students would believe. After all, suggesting that the asker will take my work is an insult to the intelligence of a man who is university educated. Interposing vulgarity is your choice, again, though.
(edited 8 years ago)
Original post by JustForLawls
If I were looking for a complete answer, I'd completely agree. But my pressing question concerned a technicality - a feature universal to any problem question. So, really, albeit the guy went above and beyond, it's really no hindrance to my learning; I am not writing his essay, rather I'm referring to the pages of notes that I have done to construct it. I don't think anyone in law can be successful if they merely copy and paste what others have written.
The thing about law whether tort or anything else is that there is no right or wrong answer. I know how crap universities are and just leave you to struggle especially on LLB modules. However, if there is a good balance between telling someone the things to consider (main points) and doing the assignment for them, it will be much better for all involved. I do understand and accept your points nonetheless.
(edited 8 years ago)
Original post by lawobiter
I certainly do not take 'offence.' You may continue with your ad hominen attacks, you may even be proud of them; I, however, find them somewhat distasteful. Likewise, reductio ad absurdum is not the answer to a serious debate. You are starting to show a petrous nature. My professional career speaks for itself; how does one judge if another is 'better'? Can it be objective? It was a few years since I studied 'black-letter law'. The harsh reality is inherently disparate from the nebulous teachings at an institution.
Clearly one doesn't understand the precept of studying law. I did not state it was a complete answer; without interposing a Latin aphorism, surely the thing speaks for itself? Does reading a textbook not do the same thing? How about learning from a tutor? Would it be wise to disregard the principles which are not correlative to a problem question? Would omitting it not provide a complete answer - the very thing you are trying to advocate against? When one studies a law degree, it is customary that a problem question offered pre-exam will not arise again. Infusing one's brain with the general concept of tort, allowing oneself to disapply that to a problem question is surely more effective than disregarding it from the outset? Congratulations on your misrepresentation point too - again, I have not said that the point is relevant. However, the asker knows that; would he have known that without it being proffered? A student studying law at university should be able to readily disapply basic concepts of tort. It is one of the first few things that is taught. Proferring information allowing for the furtherance of the basic knowledge is not misrepresentation; far from it. I never alluded to the conclusion that it applies now did I? When I was at university I would be pleased to consider a range of encompassing ideas and dis-apply them as and when fit. When one reads a skeleton argument, it is often permeated with facts not so conducive to liability, rather, they are proffered to assist the overall process of litigation in discounting a concept.
Conflicting with facts does not make one right. There may even be two or three sides to a story. You can call a Blazer horse a Guernsey cow, but it still won't give milk. Likewise, you may object as much as you want. You may tell me where Sherlock Homes is buried, and that's fine by me too.
Again opining on whether or not you believe the asker, whom I may add has been respectful throughout this discourse, is clueless is disrespectful - many seek second opinions, many seek clarification and many even proffer such a question to see what other law students would believe. After all, suggesting that the asker will take my work is an insult to the intelligence of a man who is university educated. Interposing vulgarity is your choice, again, though.
Clearly one doesn't understand the precept of studying law. I did not state it was a complete answer; without interposing a Latin aphorism, surely the thing speaks for itself? Does reading a textbook not do the same thing? How about learning from a tutor? Would it be wise to disregard the principles which are not correlative to a problem question? Would omitting it not provide a complete answer - the very thing you are trying to advocate against? When one studies a law degree, it is customary that a problem question offered pre-exam will not arise again. Infusing one's brain with the general concept of tort, allowing oneself to disapply that to a problem question is surely more effective than disregarding it from the outset? Congratulations on your misrepresentation point too - again, I have not said that the point is relevant. However, the asker knows that; would he have known that without it being proffered? A student studying law at university should be able to readily disapply basic concepts of tort. It is one of the first few things that is taught. Proferring information allowing for the furtherance of the basic knowledge is not misrepresentation; far from it. I never alluded to the conclusion that it applies now did I? When I was at university I would be pleased to consider a range of encompassing ideas and dis-apply them as and when fit. When one reads a skeleton argument, it is often permeated with facts not so conducive to liability, rather, they are proffered to assist the overall process of litigation in discounting a concept.
Conflicting with facts does not make one right. There may even be two or three sides to a story. You can call a Blazer horse a Guernsey cow, but it still won't give milk. Likewise, you may object as much as you want. You may tell me where Sherlock Homes is buried, and that's fine by me too.
Again opining on whether or not you believe the asker, whom I may add has been respectful throughout this discourse, is clueless is disrespectful - many seek second opinions, many seek clarification and many even proffer such a question to see what other law students would believe. After all, suggesting that the asker will take my work is an insult to the intelligence of a man who is university educated. Interposing vulgarity is your choice, again, though.
Perhaps you should re-visit your Latin use. The respondent did not aim it personally at you and if we were to use ad hominem its application is more likely used as a personal attack in nature. If anything were true, it is you who is guilty of ad hominem. The facts were that said person congratulated you on your command of the English language. Personally, I think your use of Latin is generally not relevant notwithstanding you have this veneer of superiority about you when you're challenged. Hence "my professional career..." In addition, you babble on instead of writing your ideas concisely. I assume you never had to produce 300 word essays with sufficient detail and critique as a sub part of your written assignments? For a legal professional, as you claim, you ought to have impeccable problem solving skills. The respondent did not indicate the OP was not intelligent rather they implied the contrary. Reading cases and applying them does not make a person intelligent in any events as measured intelligence is too subjective, but since you assume you're intelligent you ought to know this. You're likely a legal professional because you completed your courses and probably had your parents pay for it all too. The legal industry is just exceptionally elitist and you're clearly no exception.
The respondent was merely making a general point that case law authorities should be engaged with objectively as no two cases are ever the same for cross comparison. Indeed this is the problem with binding precedents as they are not the panacea the lawyer machines think rather, to be used as a general rule albeit applied proportionately.
Original post by Democracy2013
Perhaps you should re-visit your Latin use. The respondent did not aim it personally at you and if we were to use ad hominem its application is more likely used as a personal attack in nature. If anything were true, it is you who is guilty of ad hominem. The facts were that said person congratulated you on your command of the English language. Personally, I think your use of Latin is generally not relevant notwithstanding you have this veneer of superiority about you when you're challenged. Hence "my professional career..." In addition, you babble on instead of writing your ideas concisely. I assume you never had to produce 300 word essays with sufficient detail and critique as a sub part of your written assignments? For a legal professional, as you claim, you ought to have impeccable problem solving skills. The respondent did not indicate the OP was not intelligent rather they implied the contrary. Reading cases and applying them does not make a person intelligent in any events as measured intelligence is too subjective, but since you assume you're intelligent you ought to know this. You're likely a legal professional because you completed your courses and probably had your parents pay for it all too. The legal industry is just exceptionally elitist and you're clearly no exception.
The respondent was merely making a general point that case law authorities should be engaged with objectively as no two cases are ever the same for cross comparison. Indeed this is the problem with binding precedents as they are not the panacea the lawyer machines think rather, to be used as a general rule albeit applied proportionately.
The respondent was merely making a general point that case law authorities should be engaged with objectively as no two cases are ever the same for cross comparison. Indeed this is the problem with binding precedents as they are not the panacea the lawyer machines think rather, to be used as a general rule albeit applied proportionately.
I agree!
To be truthful I was only trying to be nice. I came across some of his posts, he only speaks in general terms with often many inconsistencies and errors in the law. He very often does not know what he's talking about. He uses flowery language as a subterfuge to disguise his inability to develop a succinct and precise argument. Past the flowery language his text is empty of substance, for the most part.
You see, that is an ad hominem attack. Challenging your reasoning like I did in my first response is neither ad hominem nor reductio ad absurdum. I was challenging your ideas from a substantive point. You also completely missed out on what I was saying. Let me break it up for you in bullet point form:
Looking at the nature of the questions asked on TSR, for example, "I don't know whether this a breach or duty of care question" we can deduce that these people do NOT gave a great command of the basics of Tort law. Quite frankly, even the basics of tort law are relatively complex because of the lack of clear requirements and the early presence of very illusive concepts such as foreseeability and remoteness.
And, most people in TSR asking these question don't want to understand. If they did they wouldn't be waiting for lawobiter to explain what the law is. I think the law is clearly explained in the law books and so in a much more precise, succinct, and clear manner than you would explain it. MOST of them only want a quick answer to a tutorial or essay question.
The smart way to approach a situation like this is to show them where to look and give them very few background information. This will enlighten those who are genuine in their endeavor to learn, and frustrate the intentions of those who want a quick answer to an essay question without really caring to understand. Providing a full answer is counterproductive. Again, looking at the nature of the questions asked the effect of your beautifully written and often legally erroneous essays is that those who are genuinely seeking to understand will not be able to do two things
1. Distill or understand what you say. You are not Lord Denning. Knowing your mechanic of reflection you're probably gonna say that what Lord Denning says is not the absolute truth. That is true, but you don't have his legal knowledge or experience. What he said can sometimes not be what the law is, but he said it in the context of a judgement where the majority, if he was dissenting, would reaffirm the law. The context is clear. No confusion in understanding arises.
2. Again looking at the nature of the questions, those who don't really have a clear understanding of the topic might assume that what you say is right. This is slightly different form the point above because Lord Denning generally did not make legal errors, you do. Again, it is a legal error to speak of Wilsher in that context. It is wholly irrelevant. You were saying that in exams factual scenarios would differ. That is true but by writing an answer to that factual scenario you're representing that that is the answer to that precise factual scenario. If a student from Kent reads this factual scenario taken from a tutorial question in Cambridge and reads your answer and happens to get a similar scenario (often areas of law are clear therefore scenarios don't change that much for a given area of law) they will assume that what you said was relevant and will get marked down. Especially because the way you write is so flashy.
Just to conclude cuz we're all busy: It is not up to you to tell people what the law is. You don't have the competence to do so. It is counterproductive in any event. A smart move would be to direct people to sources or cases. This helps them understand the detail and context of the law. A slapdash and abstract answer to a question is precisely not the way to help them understand the fundamentals. The fundamentals are explained in cases and textbooks. An answer to a factual scenario is not a response to an attempt to understand the substance and context, it is rather a portrayal of what you think the answer to those particular facts is. Only books and cases will provide an overview of the law.
Get my point??
peace
(edited 8 years ago)
I enjoyed Denning's reasoning...although relatively liberal, what a towering legal intellect/ mind. We need more Dennings nowadays as we then would have a good use of the rule of law. I enjoyed reading Thomas Bingham's view on the rule of law too. I mean look how absurdly long these statutes are nowadays.
Original post by Democracy2013
I enjoyed Denning's reasoning...although relatively liberal, what a towering legal intellect/ mind. We need more Dennings nowadays as we then would have a good use of the rule of law. I enjoyed reading Thomas Bingham's view on the rule of law too. I mean look how absurdly long these statutes are nowadays.
He was known as the people's judge. Always creating robust and cogent arguments from thin air to defend the weak (Which is why he was often overruled haha!). I don't think we could ever have another Denning. Yes I read that book too! The law isn't as accessible as we would wish!
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