Activity 5f

1. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of scope of liability considerations to achieve the principles of justice requires students to write about relevant strengths and weaknesses of costs considerations. Responses will vary according to the arguments selected.

        Arguments in support of scope of liability considerations achieving the principles of justice include:

• The scope of liability is based entirely on an assessment of fairness – it is in addition to the legal questions of duty of care and causation, and is only concerned with whether it is fair and reasonable in all the circumstances to hold someone liable for harm.
• Scope of liability encourages complainants to seriously consider the extent to which they may have contributed to their own harm, and the likelihood of the courts refusing to hold a defendant fully liable because of that contribution – considering scope encourages complainants to consider their own responsibility realistically, which contributes to overall fairness for both parties.
• There should be some point at which every person can move on from their past actions (if not seriously criminal) – this treats people fairly, accepting that no-one is perfect, that some harm is unforeseeable, and that evidence deteriorates over time and actions brought many years in the future cannot always be defended (this would deny the defendant access to justice); part of calculating the scope of liability is deciding what harm is too ‘remote’ from the original wrongdoing.

        Arguments against scope of liability considerations achieving the principles of justice include:

• Defendants who breach a duty of care and cause harm can still avoid liability – the principle of the scope of liability may unfairly prevent worthy plaintiffs from obtaining relief for their loss or injury through the courts.
• The principle of the scope of liability may unfairly prevent worthy plaintiffs from obtaining relief for their loss or injury through the courts – it could be argued that this assessment engages in legalistic analysis that undermines the ordinary meaning of causation, and that the complexity of the assessment favours defendants over plaintiffs in negligence cases.
• The assessment of the scope of liability can involve extensive and complex legal analysis, and may often only be determined by a court – such litigation is beyond the means of most ordinary people, which deters access to methods of dispute resolution for negligence claims.
• Because the scope of liability is judged on mostly policy grounds rather than legal ones, the interpretation of the scope can change depending on the composition of the court and can feel unequally applied across different defendants.

2. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the arguments for and against scope of liability considerations, that it does achieve one principle of justice. Responses will vary according to the arguments selected.