Problem questions

Problem-based questions in law are intended to test your ability to identify and apply the relevant legal principles to a given hypothetical factual scenario. The key to achieving a good grade in answering a tort problem question is to: (a) demonstrate your knowledge of the law by identifying the actual legal issues behind the facts of the problem being posed and (b) demonstrate your understanding of the law by applying the relevant law to the facts in question.

A tort problem question sets you a task. This is usually to 'Advise X or 'Advise the parties on their rights and liabilities (if any) in respect of the issues raised’ by the question. It is, therefore, important when answering problem questions to ensure that you address the question and always complete this task. For example, 'in conclusion', you should always 'advise X' or 'advise the parties’ in question on their rights and liabilities in respect of the specific issues raised by the problem.

Planning your answer is particularly important in tort because problem questions frequently contain a number of different issues and they can sometimes involve a number of potential claimants and defendants. It is also important to remember that there is not necessarily a ‘right’ answer to a tort problem but there is a correct approach. One approach that students find helpful is to use the IRAC mnemonic by following the steps listed below.

Identify the legal issue(s)
Rule - define and explain the legal rule and/or principle
Apply the rule/principle to the facts in question
Conclusion which sums up the advice to the party/parties

Identify the legal issue(s)
Identify clearly the factual issues on which advice is sought. This important stage in your answer involves identifying what the question is about from a legal point of view. As you are reading through the question you must take care to spot and make a note of these issues and any defences which may be available. At this point you might discover a party who has no recognizable legal claim or a claimant who does have a claim but who will have no legal remedy or reduced damages because the facts show that the defendant will be able to establish one of the defences. Each of the separate issues identified as you read through your examination paper should be isolated and dealt with separately in your answer.

Once you have decided on the questions from an examination paper that you intend to attempt, before you start writing out your answer, for each of these questions you should: (a) outline the issue/s and the loss/damage suffered in each case (b) identify the potential claimants and defendants and (c) list any defences that might be applicable. Not only will this approach give your answer a clear structure, it will also provide you with a helpful reference point as you work through your answer. This can be particularly helpful in an exam situation, where time management is important, to ensure that you don’t spend a disproportionate amount of your time on any one question.

Rule - define and explain the legal rule and/or principle
Identify the principles of law which are relevant to the issue(s) and explain the legal principles, giving authority (case law or statute, as appropriate). Identifying the relevant law is a filtering process and this process should include discussion of any areas where the state of the law is in doubt. On the basis of this process any irrelevant law should be filtered out at this stage and only the law which is pertinent to your answer should be retained.

Apply the rule/principle to the facts in question
The law must be applied to support your discussion. It is at this stage that you must focus on constructing a logical argument and make a sensible attempt to apply the law to the factual issues. At this stage you should also identify any additional factual information about the problem which a court would need to come to a firm conclusion.

Conclusion
You should conclude your answer with a short paragraph containing your advice. If you have worked through your answer in a logical order there will be no need for a lengthy conclusion. You should note that in summarizing the advice it will not usually be possible to come to a firm conclusion about the outcome of a dispute since there is likely to be additional factual information required. In some cases, the uncertain state of the law would make the outcome impossible to predict with certainty, even if all the factual information was available. You should distinguish clearly between areas of factual uncertainty and areas of legal uncertainty. Lengthy discussion of possible alternative factual scenarios will only be appropriate if necessary to explain different possible outcomes of the application of the relevant legal principles to the facts, otherwise such discussion will not earn marks but will instead be a waste of precious time.

Common errors in answering problem questions

Failing to read the question properly
During examinations many students underperform because, in their haste, they either fail to read the question correctly or to follow instructions.
Telling ‘the story’ of the case
In using case law authority, it is not usually necessary to tell ‘the story’ of the case. Discussion of the facts of the cited case will only be relevant if the student wishes to point out that the facts are so similar to the case in question that it would seem impossible to distinguish them or, alternatively, if you wish to point to some difference between the two fact situations which makes it possible that the two could be distinguished.
Failing to consider the position of all the parties in a dispute
Issues should be explored from all sides and advising a particular party will involve considering the arguments which the opposing party or parties will employ.
Restating the question
Students sometimes lose precious time rewriting the facts in the question and if you find yourself doing this remember that you are not earning marks.

To become really competent at answering problem questions practice is essential. Like learning to ride a bicycle, to become really competent at answering problem questions you will need to practise: the more you do, the sooner it will become second nature to you. One of the most valuable ways of getting this practice is to prepare written answers to tutorial questions for use in class discussion.

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Oxford University Press, Online Resource Centre, Problem questions.

Problem questions