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Writing a legal argument: Planning your answer

Legal argument is a process of identifying legal issues, connecting it to appropriate laws then applying those laws to the facts. It is a process that weaves a legal answer together. You must find and cite supporting cases and laws to argue your position.

Example model plan

Issues to be identified Discussion of appropriate law Appropriate application of law
Issues to be identified

1. Reasonable foreseeability
Lord Atkin's neighbour test Donoghue v Stevenson

2. Salient features
Sullivan v Moody
Tame v NSW

Discussion of whether it was reasonably foreseeable that Bert would be likely to be injured by GCS's failure to provide safe shopping conditions.

Discussion of whether the salient features of the case are consistent with the existence of a duty of care

Conclusion
Make an analogy to cases which recognise a duty of care in these circumstances. Occupiers owe a duty of care to entrants because of their control over the premises (e.g. the Zaluzna and Nagle cases) Note that GCS is an occupier of premises and thus owes a duty of care to those coming on to the premises
What was the standard of that duty of care, and was it breached? The standard is a reasonable, ordinary and prudent person in the circumstances of the occupier Did GCS act as a reasonable occupier of premises? Need to examine the risks of omission, the seriousness of the consequences, the possibility of eliminating those risks and compliance with usual practice (Bolton v Stone, Mercer's case)
Damages Two tests:

(a) causation - 'but for' the breach the damage would not have happened (Chappel, Cork's cases)

(b) remoteness - are the injuries reasonably foreseeable?

 Identify damage

Would the damage have occurred other than as a result of the breach?

Is the damage reasonably foreseeable?

Conclusion
Defences Contributory negligence
Volenti non fit injuria		 Conclude that neither is relevant to the facts

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