Handling problem questions

Problem questions are there to test your ability to apply the law to a certain set of facts.

Those who are trained to follow rigid marking schemes for secondary school exams have to be prepared for a change. Each person has a different style of answering problem questions and it is impossible to single out THE perfect answer script. Some markers may have a list of cases that students are expected to bring up in order to attain a passing mark in the exam, but it is the analysis of the rule and application that gets you a good mark.

Your audience

Question mark

The first step is to read the question and to see what exactly you are asked to do.

See whether you should give advice to a certain party as to the merits or prescribe a course of action for both parties, all of which have subtle differences. You do NOT want to start writing on behalf of both sides when you are meant to be advising one party only (students have made such mistakes countless times before). You will need to know what exactly you have to “suggest” at the end of the question.

Essay structure

When approaching a problem question, the first thing to do is to spot the issues at the macro-level. The best place to start (if the issues are not immediately obvious) is to look for the “wrongs” suffered or done by the parties involved. You should then identify what legal actions the suffering party has against the wrongdoer.

After that you can move on to the micro-level and analysis each of the issues. One way to do a good micro-level analysis is to use the IRAC method.1 After identifying the issue, state the elements required of the legal issue or the cause of action (the ‘rules’). Then turn to consider each element of the ‘legal issue’ (the ‘application’). Finally end with a conclusion.

The links below provides a detailed explanation on how to write a good answer for problem questions.

https://legalenglish.hk/problem-question-answers-2-organizing-the-structure/

https://legalenglish.hk/problem-questions-3-the-issue/

1 IRAC stands for Issue, Rule, Application, Conclusion.

IRAC – “rule”

Under each element of the legal issue, exposition of the law follows. As a general rule, it is best to start off with the general rules and then begin explaining the rules that might be more specific and applicable to the fact pattern/issues involved.

Be mindful to note whether cases are conflicting, whether there are dissenting opinions in judgments and whether cases have been criticised. Taking into account all of these factors will help you formulate a decision as to where the law actually stands (what the law actually is). Some students tend to list out blanket propositions as to the law. Needless to say, considering the actual position of the law (which can be quite messy) will help you get bonus marks and stand out from the crowd.

Take a look at this link for a detailed explanation on ‘rule’.

IRAC – “application”, “conclusion”

Question mark

As for the application of the law to the facts, the trick is to see whether you can apply the law directly (by analogy/ precedent) or whether you can distinguish the current facts from the existing case law.

Following which, you should arrive at your conclusion for each element. Do not forget to have an overall conclusion for each cause of action framed in the manner that is required of you (which will be given in the question).

To find out more click on these these links for a detailed explanation on ‘application’ and ‘conclusion’.

Example 1

(i) Question

Ada moved into a large but old house. She requested Mr Fung of Hung Hing Ltd to renovate a part of the house. Whilst the renovation was being carried out, Ada decided to hold a party in the dining area. Ada invited her friend Minnie and her 4 year old daughter, Cindy, to the party.

At the party, Cindy became bored and wandered into another part of the house marked “Danger, keep out”. Cindy was attracted to steps on the scaffolding and when Cindy entered into the room she was seriously injured by some bricks falling from the ceiling.

During the party, Minnie saw a statue and wanted to take a look at it. She reached up to grab the statue but forgot her wrist was very weak from an injury. Because of the weak wrist, she lost grip of the statue and it hit her head. The shelf on which the statue was placed was already loose and needed to be replaced.

Ada had appointed an independent contractor, Thomas, to do the carpentry work at her house. He was electrocuted when he touched a fluorescent light whilst he was at work. It turned out that the accident was caused by defective wiring done by Mr Fung.

Advise Minnie, Cindy and Thomas as to the claims, if any, they have against Ada, Mr Fung and Hung Hing Ltd.

 

LW2603A Law of Tort I, Semester A 2010/11, Exam Paper Q4

 

 

(ii)Comments

We've used a past paper question on Occupiers’ Liability here. It is important to remember that you are giving advice to Minnie, Cindy and Thomas when answering this problem question. In this example, a party is used as the division on the macro-level.

Light bulb

(iii) Possible flow

Part 1: Always start with an introduction for problem questions as well. Briefly introduce the relevant area(s) of law concerned and the parties involved.

Part 2: Introduce the concept of an ‘occupier’ and the ‘duty of care’ of an occupier. The following sample covers the basic elements required.

Definition from case law:

Ada is the occupier of the house, as she has “a sufficient degree of control” over the premises that she “ought to realise that any failure on [her]1 part to care may result in injury to a person coming lawfully there” (Wheat v Lacon Co [1966] AC 552 at 578, per Lord Denning).2 We must ascertain the nature of Ada’s visitors and decide whether she owes them a duty and is in breach of that duty.

1 Brackets should be used for the bits different from the original quote.

2 The definition of ‘occupier’ from a House of Lord judgment is incorporated in the answer.

Definition from statutes:

Ada owes a common duty of care to all lawful visitors.1 Under the Occupier’s Liability Ordinance (Cap 314) (“OLO”), Ada owes a duty to her visitors “in respect of dangers due to the state of the premises or to things done or omitted to be done on them” (OLO s.2(1)).2 She will be liable if the injury complained is caused by any defect or danger in the premises, where the visitor used the premises for the purpose of which he is invited or permitted by the her to be there (OLO s.2(2)).3

1 The Occupier’s Liability Ordinance is used to explain the duty of care of an occupier towards lawful visitors.

2 The wordings in the ordinance can be quoted.

3 Or you can summarise the section in your own words (though it may end up rather clumsy, as shown in the demonstration above).

Part 3a: We can start with Cindy’s claims. After explaining whether Cindy is a lawful visitor of Ada, the focus on the discussion will turn to the specific area of an occupier’s liability against children.

In relation to Cindy, Ada “must be prepared for children to be less careful than adults” (s.3(3)(a) OLO).1

[analysis on the rule by referring to leading cases + application]

1 Referring to the Ordinance is a good way to bring up the issue of “children”.

Part 3b: After laying out Cindy’s possible claims, we can suggest the possible obstacles that Cindy will face (i.e. possible defences that Ada may raise).

Parts 4-7: Continue to analyse the remaining parties’ claims against Ada, Mr Fung and Hung Hing Limited.

Part 8: End the answer with an overall conclusion.

Example 2

Here is an example on how to tackle a Contract Law problem-based question.

(i) Question

Alice picks up an English dictionary marked “$199” in a bookstore and tenders it to the cashier who says the price tag is erroneous and the true price is $399. Advise Alice.

(ii) Issue

At issue of the present scenario is whether or not the dictionary price tagged “$199” in a bookstore constitutes an offer and whether the action picking the book off the shelf constitutes an acceptance.

Short summary on how the case may go in different ways: (not necessary if you are lack of time in the exam)

Possibility 1:

If the price tag constitutes an offer and her action acceptance, then there is a binding contract as between Alice and the bookstore. The bookstore would then be under a legal obligation to sell the book at the specified price.

Possibility 2:

However, if the displaying of the book with price tag does not constitute an offer (i.e. if it amounts to an invitation to treat), then Alice’s action would not constitute acceptance, then there is no binding contract. And the cashier is entitled to decline to sell the book at will.

Question mark

(iii) Law

In law, an offer is an expression of willingness to be bound. [List out the general Rule] Where an offer is accepted, there is an agreement and the offerer is bound to carry out its promise provided that the agreement is legally enforceable.

  • [List out the general Rule] In order for a promise to constitute an offer, the promise must be final, i.e. non-negotiable (Gibson v Manchester CC; Storerv Manchester City Council) [with supporting authorities]. In Gibson, the court held that the words “the council may be prepared to sell houses” on a letter indicate that the promise was not final, and held that there was no offer to sell council houses. [lay out the relevant reasons of holding]

  • Given the requirement of “finality”, advertisements and shop displays are generally considered invitations to treat, i.e. the transaction is in the process of negotiation as held in the Pharmaceutical society of GB v Boots Cash Chemists. In the case, Boots started allowing customers to pick medicines from their shelves and pay at the till. The Pharmaceutical Society alleged Boots of unlawful practice because the law at that time required a pharmacist to supervise the sell of medicine at the point where the sale was instituted. The court held that the display of items did not amount to an offer and putting the item into the receptacle did not amount to and acceptance. The set up was intended that customers should pick and choose the displayed items, and the contract is not completed until the customer has indicated the articles he desired to the shopkeeper who on the company’s behalf accepts the offer. [Note that you do not have to lay out each and every case fact. Cite only when you try to draw analogy with or distinguish from the fact of the cited authority]

  • [Lay out the exception to show your understanding of law] However, not all displays of items are invitations to treat. Displays of items may constitute an offer if there is no possibility of negotiation. In the case Thornton v Shoe Lane Parking Ltd, the court held that automatic vending machines constitute standing offers because as soon as the machine was activated there was no possibility of negotiation.

Likewise in Re Charge Card Services Ltd (No. 2) where it concerns self-service petrol station, the court held that a customer accepts garage’s offer of petrol by putting the petrol into vehicle’s petrol tank, and is therefore liable to pay amount shown on pump.

(iv) Application

In the present case, the book was displayed on the shelf. Although it is tagged with a price, customers can still pick and choose at will. This indicated that the arrangement was an invitation to treat (Pharmaceutical Society of GB v Boots). Therefore, the offer was made at the cashier by Alice and the cashier is free to decide whether or not to accept the offer on the bookstore’s behalf.

(v) Conclusion

The bookstore is entitled to decline Alice’s offer of buying the book at $199 and is entitled to sell the English at the price of $399, in the case which Alice can decide whether or not to buy.