This guidance is intended to help you approach problem questions in tort and to aid you in essay writing for coursework and exams.

Introduction

Problem questions in tort are set to test the extent to which you understand the legal principles on the topics being assessed. As you study the different topics you should remember that problems frequently contain one or more situations giving rise to a claim which may involve a number of potential claimants and defendants.  Questions usually require students to 'Advise X or 'Advise the parties’ on their rights or liabilities to enable them to: (1) show their knowledge of the law by identifying the legal issues behind the facts given in the scenario and; (2) demonstrate their understanding of the law by applying the relevant legal principles to the facts in the question and advising on the possible outcomes.

Essay questions in tort are one of the main ways of testing that you have a deeper understanding of the subject you are writing about. As you study the different topics you should remember that expressing new ideas in your own words really helps you to develop them and become confident in your understanding.  Also, whatever the level of your writing skills, you will find that writing essays helps you to write more effectively and develop communication skills.

Whether you are answering a problem or an essay question there are a number of ways in which to ensure that you obtain the full benefit of your knowledge in an exam.  Although there is rarely a 'right’ answer to a problem or an essay question, there is a right approach (see below). However, it is important at the outset to read through the exam paper very carefully to ensure that you know what each question is about before deciding which questions to attempt in the exam. The following two key points should help:

Unpack the questions

Read through the paper carefully to give you the best possible chance of understanding what each question is about. In the anxiety of exam conditions students sometimes read the questions hurriedly. This can lead to a failure to spot an issue in a question or completely misunderstand what a question is about.

Use time effectively

Time management is very important in an exam so any time spent reading the questions and planning your answers before you start will help you to:

• maximise on your knowledge and understanding of the topics. Remember that even if you have less knowledge than you would like, you are still likely to write better answers if you take a more planned approach in the exam.
• allocate your time prudently and avoid spending too much time on any one question

Dealing with a problem question

To enable you to spot what a problem question is about from a legal perspective you need to be clear about the key facts of each scenario and identify the parties involved. It is important to remember that advising a particular party will involve a consideration of any legal or policy based arguments which the other party/parties to the dispute may rely on.

As well as the defendant’s liability, you need to be alert to any facts in the question indicating that one of the defences that may be available to the defendant. Remember, a claimant may be able to establish a claim on the facts of the case but still fail obtain a remedy or have the amount of damages reduced because the defendant is able to establish a defence.

Once you have identified the legal issues and noted the relevant legal principles which apply to the questions you choose to answer, you should organise the layout of your answers before you start writing. In planning your answers you should isolate each of the separate issues in the questions you are attempting and deal with each of these issues in turn as you work through your exam paper.

When it comes to advising the parties on their potential rights and liabilities you should note that there is not always a conclusive answer.  This is because a firm conclusion about the outcome of a dispute often requires additional factual information or there is uncertainty in the law which makes the outcome impossible to predict.  However, there is a right approach to setting out your answer and students often find it helpful to use the IRAC mnemonic in adopting this approach.

Identify: identify the legal issue/s raised by the problem

Rule: define and explain the legal rule and/or legal principle

Apply: apply the rule/legal principle to the facts in question

Conclusion: conclusion which sums up the advice to the party/parties

Approaching an essay question

The law of tort applies to a wide variety of different situations and an essay question will usually require an evaluation of the present state of the law which highlights any areas of ambiguity around the topic.  Because essay questions examine the extent to which a student understands the legal principles on the topic being assessed it is vital that the essay title is analysed.

Analysing an essay title

• Identify key words
• Content related words
• Procedure related words – discuss, describe, outline, explain, compare, contrast

As well as enabling you to show your knowledge of the law by identifying the legal issues and policy considerations relating to the essay topic, your understanding is demonstrated by the discussion and argument you make in the essay.  Therefore, in setting out the key legal principles and the way in which a specific aspect of the law has developed, you should ensure that you use clear fluent sentences and organised paragraphs.

The essay should show how the law has been interpreted in subsequent cases and any statutory intervention in the area should be discussed. You should note that it is not always lack of knowledge that prevents students achieving the higher grades in essay questions; sometimes lack structure and arguments not adequately supported with discussion of the relevant authority or principle are the main problem.  Advance planning really helps to produce coherent and well-structured arguments and enables you to draw conclusions. Your concluding paragraph should directly answer the question set and be based on the central arguments explored in your essay. If you have followed an essay plan and have set out your arguments in a logical order there will be no need for a lengthy conclusion.