Below is a complete set of notes for the tort of negligence, created by me. Enjoy!
Check out an accompanying video (entire playlist available): bit.ly/DutyOfCareEp2
Note: I always recommend making your own notes, as the actual process of crafting super creative and logical notes that make perfect sense with your brain will help you learn the information and will also be much more useful to you in an exam. However, it can be helpful to start with other people's notes and also to cross-reference your information with other's notes and find authorities.
Also note: These notes took me SO many hours to put together, but I believe everyone deserves easy access to the law (even law students) and if there is any way I can make it easier for others to understand then I think that's a success.
See this in a video form: http://bit.ly/DutyofCareEP1
1. Overview - duty of care
Negligence is not acting maliciously or with evil intention. It's when someone accidentally does not live up to a standard that we as a society think they should live up to. Therefore, to make someone pay for the damage they accidentally caused you, it needs to be shown that they should have taken more care vis-a-vis you. In other words, it must be shown that you were close to the other party and therefore since you were negligent it's fair for you to owe them for the damage. This is called establishing there is a duty of care.
2. Establishing the duty:
To establish whether there is a duty of care, In New Zealand the courts look at whether it is fair, just and reasonable to require the defendant to owe a duty of care to the plaintiff. This is generally assessed under the two headings of Anns (which comes from the case Anns v Merton London Borough Council  UKHL 4,  AC 728, which are
1. Anns 1. Proximity: relationship of proximity (physical or relational).Foreseeability: acts you can reasonably foresee would injure your neighbour, or someone who is so closely affected by my acts that you ought reasonably to have them in contemplation as being affected when think of acting or not acting – Lord Atkin, Donoghue.
2. Anns 2. Policy considerations limiting scope of duty. Social or legal implications.
Overall NZ courts will look at whether it’s fair, just and reasonable to impose a duty of care? South Pacific; Rolls Royce. In novel duty situations outcome is partly determined by judicial discretion, so hard to be certain – Cooke P South Pacific.
3. Case examples where a duty of care was or was not established and why:
Bourhill v Young : No duty of care was established. Motorcyclist owed duty to people he could reasonably foresee would be harmed by his acts/omissions. Mrs Bourhill was not within the area of potential danger (no proximity) either. Overly sensitive.
McCarthy v Wellington City NZ : Yes, a duty of care was owed. A person storing dangerous explosives on his premises owes a duty of care to keep them secure to all persons foreseeably likely to be injured as a result of a breach of that duty.
North Shore CC v A-G  NZ [The Grange]: No duty of care was owed: All judges said it was arguably foreseeable that either the Council or homeowners would suffer loss if the BIA made a poor job of discharging its functions. But majority found that there was insufficient proximity between the BIA and the Council or homeowners to justify a duty of care.
See this as a YouTube video: http://bit.ly/tortofnegligence
There are 5 things to think about when answering a negligence problem. But first, to understand this tort (or civil wrongdoing) let’s think about it practically.
I want you to imagine your walk to work, or if you don’t walk to work, your walk from your car to your front doorstep. Place yourself there and imagine yourself doing it. OK now imagine someone running past you extremely fast and hitting into you. Now imagine you were carrying an antique case that fell on the ground after they hit into you and smashed into pieces. That’s potentially a negligent act. So first you need to think, does this person running past you owe you a duty of care? Well we could say yes, as they are close to you and hit into you. They’re not some stranger in Madagasgar that has nothing to do with you. They are in close proximity to you and it was foreseeable that if they ran to fast they would hit into someone like you walking to work. So that’s one stage. Then think if they were close to you, did they breach the standard a normal person walking on the footpath should owe people? Probably yes, since they were running like a crazy person so fast they hit into you. A reasonable person would walk or run carefully on a footpath, not like an idiot and hit into you. Then you have suffered damage, which is the vase smashing let’s say. Did them hitting into you cause you to drop the vase? In this case yes. It’s not that you dropped it already then they hit into you, they hit into you then you dropped it because of that. So that’s the causation element. Then we need to think if the type of harm is foreseeable. For the vase, if it’s a $100k vase it might not be foreseeable that someone would carry such a randomly fragile and expensive item, so maybe this wouldn’t all be covered as a reasonable person wouldn’t expect to pay that when running negligently. But maybe some of it will be covered. then you need to think if they have any defences, like were you also running like a crazy person and therefore did you contribute to the negligent act by also being negligent?
And those are all the things you need to think about for negligence! That’s the essence of it, someone does something negligent to you and causes you loss. Then you can get into more complicated things, like under the duty of care heading you can think about 1) does someone owe a duty of care for harm caused by omissions? Do public authorities owe a duty of care to citizens? Can someone be vicariously liable for someone else, so that they owe the duty of care instead of the actual wrongdoer? In what situation does a duty of care arise for economic loss? Or, specific situation, to what extent do Councils have a duty of care in respect of defective buildings? There are all sorts of rules in regards to these, but the main thing you want to remember is you walking into work and someone being running past you, they owe you a duty because they are close to you and hit into you and it was foreseeable they would hit into someone like you (a pedestrian) when walking. They’re not in Madagascar and have nothing to do with you. So when thinking of all these different duties of care, just remember whether they’re close to you. And in particular think for public authorities whether it’s fair (from a practical point of view) for them to owe a duty of care when they have so many other things to pay for, it might not be fair. Because remember negligence is about people owing duties for accidental/carelessness, not criminal activity, so deciding whether a public authority should be liable for being careless is harder to figure out compared to whether they should be liable for criminal behaviour for example. And generally the courts will say that no, they shouldn’t be liable for negligence since it will cost the public, will make them behave defensively and is not good from a policy perspective.
See this as a YouTube video: http://bit.ly/5waystomotivateyourselftostudy
1. Only do 10 minutes.
I have been at university for a while and I really enjoy being at university in general. However, I have to say, in all my time there I have never ever felt like studying: not even once. and that’s not to say that when I do end up studying I don’t enjoy it, it’s just that I never feel like doing it initially, ever. That’s why you have to trick yourself into getting started, and once you’re started you generally realise it’s not that bad. So I always tell my students to do this too and it typically works for them, and that’s to study for 10 minutes a day. If you tell yourself you will only do 10 minutes, you overcome that horrific feeling of anxiety you get when you are putting off studying and you just get into it. Often you feel like doing more, but if you don’t and you only end up doing 10 minutes, that is still 100% more than you would have done otherwise, so that’s really good. 10 minutes a day for 5 days is still nearly an hour, which is so much better than doing nothing. Even as a top law student I don’t study for 10 minutes a day every day, so doing that would make you ahead of most people even though it seems like such a small amount.
2. Do creative study
I find it’s really good to break up hardcore study when you are reading text books or in my situation cases with some fun and creative study. Creative study is super important because it’s time when you let the information mull around in your brain in a fun way and it strengthens your neural connections about the topic and your general understanding of it. It’s also great if you feel like a break as it’s chill and fun and so 100% more productive than doing something like Netflix.
Ways I creative study is by drawing out my notes in a really pretty way, even if it’s just copying information down that I already have. Or it could be drawing a concept you discuss in class or in my case I draw out the situations in law cases like a comic (I know super geeky). I personally find colour coding things and re-writing things just helps me mull over the information and engage with it in a chill way. I usually find I have good break throughs while doing this as your brain is in a relaxed and creative state, which can often allow your neural connections to join together and the information can start clicking. I also go on Wikipedia adventures and start looking up random words or if I’m reading a case I start looking at who the judge is and their life stories. Or I will look into a word or a Latin term I read and really get into. It could be seen as procrastination, but if you see it as a productive study break it is fun and a good way to keep engaged with the information while letting your brain relax.
3. Watch a motivational video on YouTube
This seems really cheesy but when I feel I have nothing left in the tank I usually look up a motivational video to get myself pumped. There are heaps of good ones on YouTube and it can really help you find a bit more gas in the tank.
4. Create a study schedule
The hardest part of university is that you are doing things in your own time and on your own schedule, so you have to stay motivated. When you’re working they have a schedule created for you – it’s usually 9-5pm. But when you’re on your own it can be a lot harder to stick to a schedule. If I know I have a lot of time during a day without much else on, like a whole day to study myself, I usually make a schedule where I break it up and give myself breaks. That way you don’t feel you have to perpetually study for the rest of your life, but you can have a 9-5pm schedule, or as my dad who is a pool builder and business owner calls it, a ‘tradie schedule’ where you start at 9am, have lunch and morning tea breaks and then knock off at 5pm. if you aim to study for 8 hours a day that is good, and you might only get 5 hours but that’s still so much better than not doing anything!
5. Forgive yourself – avoid a self-loathing spiral
And that leads me to my next point, which is to avoid self-loathing. Writer Mark Manson generally defines self-loathing as ‘feelings about your feelings and actions’, so it’s feeling bad for doing or feeling something. For example, you may have made a schedule or plan to study for an entire day, but you may end up watching Netflix and getting nothing done for the entire day. Instead of the next day thinking things like “I’m so useless I did nothing yesterday how will I ever be successful?” it’s best to just let it all go, wipe the slate clean, realise that studying is like sport and you can’t peak and be on form every day, and just try again. Once I started doing this my studying revolutionised as I stopped myself from going for weeks without studying and would end up just having days of no study instead. Even though I was the top student in law at my university last year I still had and have so many days where I can’t do anything except lie in bed and watch TV, and that’s totally OK when you are going that hard at something. As long as you forgive yourself, it actually isn’t a problem as it’s just one day. So forgive yourself and realise it’s normal to have breaks, just avoid self-loathing and you’ll be fine.
I hope you found this useful and if you have any more tips please post them in the comments. Also check out my YouTube channel for more tips on studying (link in 'About' of this blog).
See this as a YouTube video: http://bit.ly/structureanessay
Many of us have been taught in high school all of these weird acronyms, like KISS and SEXY (sentence, example, explanation or some crap), but I personally found these acronyms to be all weirdly sexual and not helpful in the slightest. Over my years at university, and now as a lecturer having marked thousands of essays, I have figured out the simplest technique as to how to write a great academic essay, and there are no sexual acronyms involved.
1. First, your introduction.
All you have to do for an introduction is state off the bat what you are going to argue or do in your essay. In journalism we call this the nutgraph, it’s basically like, if you were to explain to your best friend what your essay was about in a nutshell, what would you say. For example, in the essay I wrote about 16-year-olds voting, I started in my first sentence that “this essay will argue that 16-year-olds should be able to vote”. It’s simple and I’m stating my argument straight away. The reason I think this sentence should ideally go first is because markers are generally busy and do not want to spend more than 10-15 minutes grading your paper. So if you state straight away what you are going to argue, then you don’t leave them waiting and they know you have a clear point and what that point is. I usually start every essay with “This essay will” as I find that is the simplest and easiest way to express what you are about to do immediately.
Then, all you have to do is write the building blocks of your argument, i.e. how you are going to prove your first statement. And all you have to do for that is say what point you are going to make in every paragraph. You don’t want to make it like a table of contents as in “in paragraph one I will discuss ABC,” but if you’re like “The essay will first explain ABC, then argue ABC, then look at this counter argument, then overcome it” that would be great. So it is saying what you are going to do in every paragraph but not in a blunt way. That’s personally what I love marking as already in the first paragraph I know exactly what the student is arguing and I know how they are going to argue it. it’s very simple, clear, and it helps me when I’m feeling lazy while marking to know exactly what is happening. I find it super effective, and I recommend sticking to roughly this strategy rather than getting fancy.
2. Body paragraphs
When writing the main body paragraphs, you want to do what I call ‘holding your lecturer’s hand’. You want to explain what you are about to argue in every paragraph before you start the paragraph and tell your lecturer how this paragraph links to the overall argument or point of your essay (which is what you stated you would do in your first sentence). So if you were arguing the voting age should be lowered to 16, you would start off a paragraph about voting being representative by going like this: “First, modern democracy’s function must be analysed to show why 16 and 17-year-olds should theoretically be allowed to vote in New Zealand.” It’s linking back to the main point of the essay and it’s explaining to your reader exactly what your paragraph will be about and why it’s in your essay. Some people call this a ‘topic sentence’ but I personally call it ‘holding your lecturers hand and explaining how the paragraph will link to your overall essay’.
Once you’ve done this just lay our your argument how you normally would argue something. This is usually by starting off with an explanation and backing that explanation up with a few examples. Most people do this part of essays really well, it’s just the first sentence and linking it to the overall point of their essay that I find students struggle with. So if you focus on how each paragraph links to your essay, I think this arguing part won’t be a problem. But if it is leave a comment and I can make another post/video about it.
Counter arguments: Remember, if you are doing an argumentative essay and are writing a counter point, you still need to link that into your overall essay. Like you don’t just want to say 16 year olds should be able to vote, some say they shouldn’t because they’re too young. You want to link in why even though there is a counter-argument (as there usually always is) that your point of view is still on balance more logical. So for example, you could say something like this “One opposition to the above argument is that people below age 18 are not politically mature enough to vote in ways that would represent their interests, thus corrupting the representative system. However, this proposition can be challenged.” So it’s acknowledging that there is a counter argument, but it’s overcoming it. this is important to do to make sure your essay flows and argues one consistent thing and makes sense. It also shows you have considered other points of view but still think yours is best.
Your conclusion should be a mirror paragraph to your introduction. All you want to do is repeat what you’ve already told people, i.e. repeat your first sentence but do it in past tense (“this essay argued that...”) and then repeat what arguments you made in each paragraph to make this point. Then, the only extra thing you need on top of what you already have in your introduction is some sort of ‘statement of general importance’ to finish the essay off. Usually I always end with something like “this topic is important and needs further study” because generally topics are important (at least to your lecturer) if you have been assigned to research it. For example: “Ultimately, in light of the arguments put forward in this essay and many other points that were not mentioned due to word constraints, New Zealand must continue to discuss youth suffrage and whether the laws are still fair in today’s democratic and social climate.”
And that’s it! Then you will have a simple and straight forward essay that your lecturer will generally like as it will be easy for them to read and will flow and make sense. I used to think of essays like one piece of string, it all needs to be linked and the same thing, but each paragraph is just a different colour of the string. It all needs to tie together and flow, so I hope these steps can help you get there.
If you would like any more tips on how to structure individual paragraphs in more depth let me know. Otherwise please leave a comment if you enjoyed this and like and subscribe to my YouTube channel (link in 'About' above). Bye!
See this as a YouTube video: http://bit.ly/avoidprocrastinationandwrite
1. Start straight away with a mind-map
I used to always put writing essays off until the last minute and it worked ok. But I’ve found that if you start generating ideas on your question as soon as you get the question, even if you don’t start writing until the night before, you have had at least a few weeks for the topic to mull around in your brain, which is great. You’ve also been to class and have heard a few ideas that you think might link to your essay, so it’s really helpful to start immediately. I usually will do a mind map the day I receive an essay, and that’s because the longer you leave it the more likely it is you won’t do it (this is the law of diminishing intent).
In regards to how I mind map, I usually do it in a pretty standard way where I write the question topic in the middle and branch off with different ideas. I think the key to a successful mind map is to let your brain go absolutely wild and to not censor yourself. Write down absolutely everything you can think of, even if you think it’s stupid or not related. That way you’ll fully flex your brain muscle and come up with every possible avenue to explore. And in my experience, I find the ideas that seem the most out there are actually the deepest and best for your essay.
2. Start taking notes
Once you have a few ideas from mind map, if you want you can highlight some of the better ideas you come up with and can start searching those terms. This gives you a place to start. So for example, in the article above I started thinking about how the arguments against 16 year olds being able to vote are sort of similar to the arguments against women being able to vote (which was that they’re not mature enough and can’t think for themselves, etc.). So with that thought in mind, I started Googling ideas related to this topic.
I usually go to Google Scholar to begin with, read through the abstracts and then save anything I think might be related into a folder.
Then, once I have a few things saved, the first thing I do is open a word or Google docs and split the document into subheadings. So for example, for the essay about voting I had one subheading labelled ‘women’s suffrage arguments’. I had another about politics being representative, not about intelligence, which was an idea I came up with in my brainstorm. Then, once you’ve found a few articles that are relevant, I usually write down the title of it and give it a unique colour. Then, if I read something in the article that links to representation, I make a note of it and put it under the relevant subheading in the colour I assign to that article. That’s because usually articles aren’t just about one thing and may have a few pieces of information that will relate to your topic. That way you start forming the basic structure of your essay and you know where all the information is from.
Also, practically, you can keep the information about the reference and its colour at the top of the page. Or, if the article if mainly about one topic, you can colour it and put the information under the relevant subheading, as long as you’ll know where to find it afterwards.
3. Write that shizz (a crappy first draft)
Then, once you have read around 5-10 things, and it’s all listed under subheadings, what you can do is organise the subheadings into a logical order and start writing out a paragraph based on that subheading. And the way I get around writers block, and what I always tell my students is to start by writing a crappy first draft. What I mean by this is just get some words onto paper even if it’s terrible and in a stream-of consciousness rampage. In journalism we often said ‘blank page is the enemy’ and that’s especially true in writing assignments. Once you have some clay to work with you can start moulding, but when you’re staring at a blank screen you’re pretty much feeling terrible and stressed. Plus, although you think you should wait to write something when you really feel like you’re in a good headspace to write, I’ve found that even if you write something you think is bad, it’s usually not far off from the end product you come up with. Also, when you have no pressure to write something good, you overcome that feeling of pressure and anxiety that we often have when writing assignments.
That’s why it’s best to just go for it, write something crap, and then edit the shit out of it later. I usually write at least five drafts for each assignment I do, and that’s because I start by writing an absolute hunk of junk and then spend time moulding it. I usually save other drafts just in case what I write the second time around is worse then my first draft. This helps me overcome that feeling you get when you don’t want to delete a paragraph.
And that’s it! I hope you find this useful. I definitely spent my first few years at university leaving things to the last minute and feeling so stressed about it for weeks, which was not health or productive, and my grades were worse than they could have been. These techniques of mine have been fine-tuned over the years and I find they really work for me, so I hope they also work for you.
Let me know how you find it in the comments. Happy studying!