BOTH QUESTIONS NEED TO BE ANSWERED (1000 words each) 1. Anthony is involved in a road traffic accident when a plank falls from a skip being transported on the back of a lorry. The plank smashes through the windscreen of Anthony’s car. A fragment of glass lodges itself in Anthony’s eye. An ambulance takes him to Kent Hospital. Jacoob, a surgeon employed by the hospital, undertakes eye surgery on Anthony’s eye, but Anthony loses his eyesight in the eye. Jacoob performed the surgery to the best of his ability. Jacoob did not warn Anthony of a risk of blindness because he was of the opinion that Anthony was unable to make a reasoned decision about surgery in his condition following the accident. Jacoob believed the surgery was urgent. Medical evidence obtained by Anthony states that the type of eye surgery performed carries with it a 10% risk of blindness. If Anthony had chosen not to undergo surgery, he would probably have been left partially blind in the damaged eye. Blood alcohol tests taken at hospital revealed that Anthony had had at least one large glass of wine in the hour before his road traffic accident. Advise Anthony whether he has any claims in the tort of negligence. (1000 words) 2. What justification can there be for imposing liability in tort in the absence of fault? Answer with reference to examples of strict liability considered in the module. KEY: – Full referencing not need only an in-text short reference (Williams, 2003) – 1st Question is a problem question and 2nd is a standard essay question – Use content from the provided resources (no external research should be used) – Do not plagarise or use parts from other online essays Problem Question Guidance: (ONLY) – Focus on a few specific issues within some (but not all) of the potential claims and concentrate on providing some in-depth analysis of those issues rather than providing a superficial treatment of all issues. – the Problem Question will not require you to cover all the elements of the Tort of Negligence. It is therefore even more important than normal to focus your analysis on the main issue or issues. – You are required to cite case law, legislation, books and articles in answering a problem question, just as you would in writing an essay – The IRAC METHOD SHOULD BE USED FOR THE PROBLEM QUESTION (Will upload in files guidance to this) 1. Identify the groups https://proficientacademichelpers.com/essayquestions/ of important facts – the issues – relevant to the party/parties you are asked to advise. 2. For each issue (i) identify the legal rules (statute and case law) which a court would use to resolve issues of that kind and (ii) explain and analyse the rules and (iii) apply them to the facts. a. To ‘explain’ a rule means to say what the rule is in your own words. b. To ‘analyse’ a rule means to break it down into its key ingredients and to set out the test or standard which it establishes. c. To ‘apply’ a rule to the facts means (i) to methodically match the components of that rule to relevant elements of the facts and (ii) to draw a conclusion on whether the test or standard in the rule is satisfied. Sometimes, that conclusion will be uncertain because the rules to be applied are ambiguous, or the facts described are incomplete. Often, you will have to set out two or more alternative conclusions, and make a decision as to which, in legal terms, is the most plausible. It may be ‘for the court/jury to decide’, but it is for you to advise. There is room for critical legal thinking in both essays and problem questions. However, in a problem question answer, you are expected to maintain the discipline of a practising lawyer, and this will limit the types of argument available to you. In essays, it is often appropriate to explicitly discuss theories and ideologies which originate outside law (. feminism, Marxism) and to make upfront political arguments about how the law should be. By contrast, in answering a problem question you must confine yourself to those political and public policy arguments like to influence a court. You can also be critical in a problem question by pointing out the finer points of applicable legal rules (extra reading of judgments and articles is useful here) which have a bearing on the case. Or you might wish to suggest (with due caution) scope for judicial modification of an existing rule (citing persuasive case law from other jurisdictions, obiter statements, dissenting judgments, Law Commission reports or blackletter academic argument). In other words, you can do anything in your problem question which you have ‘seen’ barristers attempt in the cases which you have read. Usually, your introduction and conclusion will be very short. In a sentence or two, you can state who you are advising, on what issues and whether they have a prospect of success. But you can leave the detailed discussion of the law for the body of your answer. A long, general introduction which could have been written in answer to any question on this area of law is always inappropriate.
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