An exam question on negligence usually asks whether or not the defendant is liable in negligence, and whether or not any of the defendant’s defences might succeed. The student must deal with all three of the elements of the tort of negligence, and their sub-elements, as well as the defences of contributory negligence and volenti non fit injuria. All elements must be satisfied before the defendant can be found liable in negligence.

The exam answer should be written in IRAC form, with one separate IRAC for each element of the tort.

An IRAC is a structure for legal writing composed of the following four elements.

  • The issue statement (he issue arises as to whether . . .
  • The section stating the relevant rules of law
  • The section applying the relevant law to the relevant facts in argument form.
  • The conclusion (Therefore, a court would likely hold that . . .)

Read the examiner’s requirements first. Then read the facts of the question. In this way, you will be able to assess which facts in the question are relevant. This is called “issue-spotting”.

Start with writing the issue statement, commencing with the words “the issue arises as to whether . . .” and leave the latter of the statement part blank, for now. The issues statement can be completed after the conclusion has been written.

Every time you write a case, give a one-sentence summary of its facts, then give enough of its holdings to be of strictly relevant use in the Application section, later on.

Element #1 – Duty of Care

Begin this element with a partially written issue statement as above. Leave a couple of lines free to come back and finish the issue statement later. This is because the issue statement must relate to the conclusion. More on this later.

Start writing the rule of law section. Before writing up any case, provide a brief statement of relevance, which answers the question “why am I writing about this case?” It should also help to define what you are about to describe. You will use this statement of relevance later on to form your analysis in the Application of the Law section.

Give a brief summary of the facts in Donoghue v Stevenson and fully state Lord Atkin’s neighbour test and his lordship’s reasonable foreseeability of harm test. If the question is about negligent mis-statement, use Hedley Byrne & Co Ltd v Heller & Partners Ltd instead.

Now write the application, applying the law to the facts. Do this in a three-stage process:

  • A BRIEF summary of the RELEVANT facts from the exam question
  • A BRIEF summary of the RELEVANT holdings from laws written up in your rule of law section
  • Putting these two components together, write your judgment in a logical form. Assess whether the parties were neighbours and whether Lord Atkin’s reasonable foreseeability of harm test has been breached. Otherwise, assess whether the court’s dictum in Hedley Byrne has been satisfied. Remember, it is possible that you could find that there was no duty of care owed. Consider the facts carefully.

Now write your conclusion.

Element #2 – Breach of Duty

Begin this element with a partially written issue statement as above. Leave a couple of lines free to come back and finish the issue statement later. This is because the issue statement must relate to the conclusion. More on this later.

Start writing the rule of law section. Before writing up any case, provide a brief statement of relevance, which answers the question “why am I writing about this case?” You will use this statement of relevance later on to form your analysis in the Application of the Law section.

Discuss the “weighing test” of Mason J in Wyong Shire Council v Shirt and then use Paris v Stepney Borough Council for magnitude of the harm, and Bolton v Stone for probability of the risk. Consider the state Civil Liability legislation if required.

Now write the application, applying the law to the facts. Do this in a three-stage process:

  • A BRIEF summary of the RELEVANT facts from the exam question
  • A BRIEF summary of the RELEVANT holdings from laws written up in your rule of law section
  • Putting these two components together, write your judgment in a logical form. Balance all the factors against the cost and convenience of taking precautions to prevent the harm. Remember, it is possible that you could find that there was no breach of duty of care. Consider the facts carefully.

Now write your conclusion.

Element #3 – Foreseeable Damages

Begin this element with a partially written issue statement as above. Leave a couple of lines free to come back and finish the issue statement later. This is because the issue statement must relate to the conclusion. More on this later.

Start writing the rule of law section. Before writing up any case, provide a brief statement of relevance, which answers the question “why am I writing about this case?” You will use this statement of relevance later on to form your analysis in the Application of the Law section.

For causation use Lord Denning’s statement of the “but for” test in Cork v Kirby Maclean. For remoteness of damages use the Wagon Mound case.

Now write the application, applying the law to the facts. Do this in a three-stage process:

  • A BRIEF summary of the RELEVANT facts from the exam question
  • A BRIEF summary of the RELEVANT holdings from laws written up in your rule of law section
  • Putting these two components together, write your judgment in a logical form. Assess whether the defendant caused the damage and whether damage was too remote or far-fetched. Remember, it is possible that you could find either that damages were not caused by the defendant, or, that damages were too remote. Consider the facts carefully.

Now write your conclusion.

Issue Statements and Conclusions

The issue statement must imply a certain question. This question will be answered later in the conclusion section. That is why the issue statement should be finished only after the conclusion has been properly drafted. For example: “the issue arises as to whether there have been foreseeable damages”, implies the question “have there been foreseeable damages?” The conclusion might be written using standard wordage, thus: “Therefore a court would be likely to hold that there had been foreseeable damages”.

Write a separate conclusion for each IRAC.

Defences

Make a separate heading for the defences, and write up the law for each of the defences. Use the application formula, as above, to assess whether and how they might apply.

Summing Up

The exam answer should now be in the form of 3 IRACS as well as a section for defences

Finally, don’t forget to write about all the likely remedies. Will it be damages, or will it be an equitable remedy? When discussing damages, state the goal of an award of damages in tort.

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