by Sandra Edmonds,

Lecturer-in Law,

Swinburne University of Technology.

John Street, Hawthorn,

Vic. 3122.

e-mail: sedmonds@swin.edu.au

AARE CONFERENCE 1999, Conference Paper.

Multi-media education requires input from the teacher at the earliest possible stage.

That the teacher must carefully consider subject design, content and assessment (in the context of student experience and background) is an explicit pre-requisite essential to beneficial outcomes in educational programmes. Yet this first stage teacher-approach may come too late in the design of on-line subjects.

All too frequently, what has been developed follows a standard form template for on-line subject delivery. Often the "product" may simply reflect an adaptation of distance-delivery prototypes. In instructional materials for teachers considerable emphasis is placed on learning design techniques, how to present material in an on-line format. This has the effect of requiring the teacher to adapt teaching method to currently available technology. While there are some creative examples of skillful work by teachers who have done so, that model places process (designed system) before planning (the approach to learning). Consequently the learning outcomes may be debased.

Assessment is a critical element in the prefiguration of teaching methodology. The development of the systems currently available for "self-managed learning" by the student on-line suffer a number of shortcomings. Most conspicuously absent are diagnostic tools for the teacher dealing with large enrollment numbers.

This paper will critically evaluate the assessment limitations of standard on-line delivery models. There are common problems across disciplines and specific examples from law subjects in business degrees will be considered. Methods to improve the teacher's ability to review the teaching/learning process will be outlined. The adoption of models which do not subordinate the teacher to technology is a critical challenge for the future.

There is an element of deliberate hyperbole in the title of this paper. Teacher creativity has been essential in adapting subject delivery to new technologies, as even a cursory review of AAER conference papers will confirm. Why then the warning sign image of a disabled teacher (when more frequently, in practice, the experience will be of "system down")? First to attract attention, which is an important teaching technique in focusing on issues. Second, to allow for reflection and dialogue between those who are sceptical about or advocates of the educational benefits of instructional technology and "internet teaching". Third, to focus on the extent to which the teacher’s important task, of assessing and certifying the measure of learning achieved, can be helped or hindered by new technologies.

The ways in which information technology has been used for both materials delivery and interactive communication to support the drive for flexibility in the learning environment will be briefly outlined. It will be argued that, for a variety of reasons, teachers are often constrained by the features of designed systems. This paper will refer to, but will not be focusing on, the domain of electronic conferencing. Rather the focus will be on the use of short answer question formats or the ‘one answer correct from multiple questions’ (hereafter multiple-choice questions), which are widely used in many disciplines. A number of issues are involved, but three in particular will be examined. First, the extent to which this form of assessment, particularly in the form of a "self-managed learning" system, factors into the learning process. Second, the appropriate use of these types of questions for summative assessment. Third, the extent to which diagnostic evaluations by the teacher can be efficiently made.

While examples across a range of disciplines will be referred to, the specific analysis will be on the use of multiple-choice questions in law teaching. System workbooks have been designed to both allow for independent study, at the student’s own pace, and to alleviate increasing demands on teachers time. The shortcomings of these systems when applied to the "non-law degree" business student will be explained. In the design of these workbooks it is also questionable whether sufficient attention was paid to the need for teacher diagnosis of learning. The experiences in teaching an introductory commercial law subject to non-law students will be referred to as an indication of both problems which can be encountered and questions which require more detailed long-term research.

What has been the driving imperative of information technology growth? Not education or learning. The needs of business in the context of globalisation and the emerging forms of e-commerce have been key factors. Of course the phenomenon of the "chat group" (adapted by educators) can not be explained simply in these terms. There are numerous examples of electronic conferencing being used in flexible learning situations, and an increasing literature. (Wade, Hodgkinson Smith and Arfield, 1994; Harasim, Hiltz, Teles and Turoff, 1995; Hesketh, Gosper, Andrews and Sabaz, 1996; Mason and Basich, 1998).

In part this adoption of electronic conferencing can be explained in the context of developing approaches to student centred learning. It satisfies current educational criteria in providing students with both convenience and responsibility for their learning, and being engaged in learning activities and opportunities that meet their own individual needs. However, information communication technology is relatively cheap to implement as a complement to the flexible delivery of teaching methods. The "unpaid" teaching hours of the enthusiastic adapters are not always acknowledged, but it has been conceded that to rely on such goodwill as a permanent feature of teaching strategy is "clearly unsustainable" (Mason and Basich at 250).

Information technology is also used for materials delivery and retrieval. As these facilities become more sophisticated, the infrastructure costs for implementation increase. For many Universities in Australia, examples of "subjects on line" are confined to the conversion of teaching materials which are posted within the shell established for the University home page. Short descriptions of subjects and course of study sequences are available in the on-line University Calendar. However, this use of information technology for "market push" should not be confused with having teaching materials on-line.

Where teaching materials are available for open access, in many cases, the minimum information about the subject to be studied, and which should usually have been made available for distribution to students, has been converted to the html format which can be downloaded or printed off by individual students. Thus a subject outline, topic schedule for lectures and tutorials, tutorial problems or assignments and, occasionally, lecture overheads will be posted. Advice about study, or links to students services to assist study are not made as a matter of course from subject pages, instead the hypertext link is more likely to be to useful on-line sites for reference relating to subject content. Underlying concerns about copyright, or free-riding, no doubt influence decisions not to make more extensive subject materials available on open access sites. In law and legal studies, this type of Australian material tends to be limited to CAUT (or similarly funded) projects, or to secured sites. Alternatively the materials being used in the subject will have been specifically developed in other forms, including CD-Rom.

Computer aided learning (CAL) packages of fixed content, and with self-testing methods for the user, will be expensive to produce and update as subject material changes. Unless large grant funding is made available, it is unlikely that individual institutions will be prepared to meet the cost of specific subject packages for the under-graduate, non-fee paying sector of the education market. In the U.K. the Law Courseware Consortium, which was funded under a Teaching and Learning Technology Programme, developed CD-ROM based electronic courseware for workbooks in core substantive law subjects. Such an undertaking requires a committed collaborative effort (Paliwala, 1998). There has been vigorous debate about the problems and perceived advantages and disadvantages of this type of CAL system. (for example, Paliwala 1992, 1998; Widdison 1995; Jones and Scully 1996).

Good teachers want their students to be engrossed in their subject and aim for a variety of learning experiences. Thus when subject design includes instructional technology and/or the wide range of options available in flexible delivery, ‘instructional implementation opportunities’ (Collis 1995), will be the key consideration. However, teachers are rarely free agents in making decisions about how teaching methodology can be presented with new forms of delivery. For example, while a "chat group" facility for students may be made available, it may be more difficult to claim an appropriate teaching time allowance, if this form of interactive communications technology is to be substituted for class teaching hours. Thus teachers may be reluctant to commit the considerable amount of time involved in designing an appropriate form of "tutorials on-line" as an alternative to conducting "face to face" tutorials.

It is important to keep the difference between the two mediums of communication in mind when addressing questions of instructional design. Some studies have indicated the pitfalls of giving precedence to technology applications over pedagogical considerations. (Ahern and Repman, 1994; Cartwright, 1994).

The teacher may consider that generically designed CAL packages are an appropriate fit with a specific subject design and that it would be helpful to students being able to go over CAL exercises several times and at their own pace. The converse of CAL packages not being sufficiently in line with subject design can also apply. This issue can be considered in a similar way to the question of prescribed or reference texts. Even when the CAL package is considered to have sufficient potential, licensing costs may not be within the budget allowance for the subject. Australia may have a high proportion of computers in private households, but equity considerations should also be taken into account. It would be inappropriate to link subject design, and assessment in particular, to materials in a CAL package unless students without sufficiently sophisticated home computers have access to this material in their University library.

A specific example in law relates to the Australian Law Courseware Project which has adapted the prototype U.K. law workbooks referred to above. The target users of these CAL packages are law school students. A larger student population is studying law in non-law schools, primarily business degrees which have a significant proportion of overseas fee-paying students. The non-law school teacher may consider that it is inappropriate "self-managed learning" for students to waste time navigating around irrelevant parts of these packages in order to get to the relevant materials and exercises for their study in commercial law subjects. Alternatively, the non-law school teacher may simply not have the time to prepare a "road-map" of instructions to students, to clarify what is relevant or irrelevant in such packages.

This issue of time constraints needs particular attention in an environment of increasing stress on and within the University sector. While this is another matter over which teachers are not free agents, consideration must be given to the amount of study time which is expected of students. Some degrees, like business, have professional accreditation which impose over-arching requirements for subjects. Thus subject design must incorporate an incremental progress through content, balancing learning and assessment. During that progress, feedback is critical. An essential aim of any learning environment must be to give students timely, clear and constructive feedback to be able to judge their own progress. Exercises in CAL packages aim to do this. However, summative assessment also needs to be integrated with the learning process, not only for student self-evaluation but so that the teacher can review the teaching/learning process and consider how students, individually and collectively, are progressing.

With the clear push for the incorporation of flexible delivery in teaching methods to which teachers must respond, the focus should not be confined to learning tools which have the potential to give different opportunities for student learning. Student-centred learning and self-managed learning are important, but ultimately credentialing of learning outcomes is necessary. The extent to which instructional technology can be used for this purpose has profound implications.

The effects of economic (ir)rationalism have had a profound on the University teaching environment. Larger classes, more teaching hours, more compulsion to research and publish, increasing administrative duties and documentation for quality assurance are familiar circumstances. In this context of increasing demands on teachers’ time, technology which can both produce efficiencies in the assessment process and be used as diagnostic aids for the teacher is very important. However it is for this aspect of the teaching process that developments in the application of available technology appears to have had only ‘hazily perceived potential’ (Cochrane, Ellis and Johnston, 1993).

In an increasing stressed teaching environment, teachers desperately need tools to simplify their workload. Unless substantial funds are available for new programme design, teachers are restricted by the constraints of available programmes and must use their creative imaginations to work with or around the limits of designated systems.

Many academics across a range of disciplines use multiple choice and/or short answer questions as part of the summative assessment process. With large student numbers this may be the only realistic method of giving students some feed-back and marks during the early stages of study. This type of assessment can generally also be incorporated into the teaching time-table with current instructional technology programmes. Internationally, the leaders appear to be in computer courses (for example, Zandvliet and Farragher P. 1997; Cox and Clark 1998) or in distance education courses (Moerkerke and Dochy 1998).

However, multiple choice question tests should not be considered as appropriate for all or a substantial part of summative assessment, even though this does occur. At the Open University of the Netherlands, for example, in four separate disciplines Marketing, Informatics, Economic Order & Markets and Operational Management for courses offered in distance learning mode, multiple choice tests were the principal form of assessment (Moerkerke and Dochy, page 181).

Multiple choice question tests have some advantages, including a wide or global content coverage and quick, accurate and objective marking. Provided care is taken in framing the questions, precise problems can be set and, in the teaching cycle, questions can be accumulated, so that they can be modified and/or used again. This form of testing can be used in controlled examination conditions where there is a guarantee of individual work. It can also be adapted to the flexible delivery form, but questions of security then arise, requiring methods to protect the integrity of the testing process. Scanning examination score sheets can reduce marking time (as a counter-balance to the time spent designing good questions) and allow for evaluation of responses to specific test questions. With the security caveat already referred to, the same benefits apply to computer-administered testing. Timely and precise feed-back can be given in addition to the marks scored. The statistical analysis of responses is important for the teacher because, with this information, individual difficulties can be taken into account and more general problems in the student group investigated.

Multiple choice question tests also have disadvantages. In particular, a correct choice of answer may have been no more than a guess and an incorrect choice may be because of an ambiguity, undetected by the teacher when the question was formulated. Statistical analysis can identify the latter, the former is more problematical, and one of the reasons why the proportion of marks given to this form of assessment should be restricted.

Good teachers aim for students to achieve deep-learning outcomes. This will occur in a process, which must often start with learning the "vocabulary" of a particular subject or discipline. Such knowledge is a necessary foundation for the progression to higher-level learning, and in particular analytical skills, critical thinking and problem solving ability. These levels of learning are contingent on being able to examine situations from multiple perspectives. (Mitroff and Linstone, 1993) Well designed multiple choice question can be part of this learning process.

Key arguments against multiple choice question tests are that surface-level learning outcomes are more likely because rote learning will be adopted by students. However, it can also be argued that astute design, with conscious attention to cognitive skills acquisition, provides greater scope for using multiple choice question for deeper learning outcomes. (Cox and Clark 1998). This task is not easy and from the experience of the U.K. law courseware designers, the aim of promoting ‘a level of learning that is located in the higher reaches of the cognitive domain including analysis, synthesis and evaluation’ (Grantham 1999) required a suite of exercises, not sole reliance on the multiple choice question. Thus more sophisticated tasks are included which require the student to both search for and work with information. In that process the aim is to re-inforce understanding of concepts.

A more fundamental concern has been expressed about the relationship between the form in which opportunities for learning are presented in CAL packages and learning outcomes about law and the legal process for law school students. This relates to the use of discrete modules in the instructional design form, so that inter-connections or over-arching themes become blurred. It has been argued that ‘legal knowledge …is often ill structured and has no clearly discernible form. Such knowledge should not be taught as if it were structured, compartmentalised or hierarchical.’ (Jones and Scully 1996) In response, it has been noted that CAL packages should not be seen as attempting to fulfill all learning outcomes to be achieved, ‘there is a need to resort to other solutions’. (Paliwala 1992)

However, the learning environment in which non-law school students are introduced to the process of judicial law-making is different to the law school, for example in the background knowledge of students and in the diverse range of subjects being studied. Organising the preliminary "building blocks" in any discipline does need careful attention to subject structure and this question of framework assumes particular importance in the context of a mixed disciplinary learning environment. Subject planning will aim to avoid surface-learning techniques by a progression of learning opportunities and tasks. However, students do need to feel comfortable about their ability with new subject "vocabulary" before they are required to do more advanced work. The multiple choice questions tasks can used for this purpose. Whether the additional incentive is given to students of marks for this type of work will depend upon many factors, like the subject’s learning objectives, teaching/study time constraints and whether suitable CAL packages, incorporating multiple choice questions, are available for student self-assessment.

With CAL packages the question of suitability goes further than questions of "subject design fit" referred to above. The ability of the teacher to monitor how well the student group is self-managing the learning process is a question which the designers did not appear to address. The Australian Law Courseware Project adapts features of the U.K. Iolis workbook system with the capability of scoring a student’s work, although the present materials ‘are not designed as assessment tasks or formal tests and do not keep track of student answers’ (Lambiris and Royall 1999). The aim appears to be allowing students to experiment without fear of failure. These workbooks therefore do not have over-all diagnostic capacity, so that even if licensed for use by the University, the teacher will have limited information from the system. Data about when and how often students use the licensed CAL system may be generated and analysed. But the extent to which this sparse information can be used to improve the teaching/learning process is questionable.

There are some other problems to consider. If too much reliance is placed on the multiple choice form of questions, students may become bored working through repetitious practice sets of problems. Poorly constructed multiple choice questions are likely to over-emphasise factual recall or knowledge of information. In some disciplines like law, which can involve uncertainty and/or counter-posing opinions, the typical multiple choice question based models, allowing one correct choice only, may not be a suitable vehicle for certain aspects of the required learning objectives.

A number of factors contribute towards a perception that multiple choice questions have inherent limitations which are likely to encourage shallow level rote learning. (Zandvliet and Farragher 1997) Preparing reliable multiple choice questions is difficult and considerable time needs to be spent on construction and validation to eliminate errors, ambiguities and, in law, over subtle use of language, which could disadvantage students for whom English is a second language. There are two aspects involved. First, techniques of construction have to be considered. For example, the problem posed must be clearly set out in the introductory part of the question and the intended answer must be unambiguously correct and the distractors (the incorrect options) clearly incorrect. The answer options should also be arranged so that the content is comparable and not irrelevant (an example of giving away the correct answer). When putting questions together in a test, consideration also needs to be given to randomisation of correct answer options. Secondly, to avoid a concentration testing out lower-level learning of information, a "teacher focus" on learning objectives is essential.

While it is advisable to make multiple choice questions as brief as proper presentation will allow, this is not always possible. Setting the pre-conditions for analysis may require a lengthy introductory part to the question. An example is given in the Appendix, Question 1. It is possible to design multiple choice questions which require students to consider situations from different perspectives (the example in the Appendix, Question 2). What does not seem possible in present systems is having a question which has two valid and correct answers.

The example multiple choice questions referred to were set as Test questions for a large enrollment (over 300 students) introductory commercial law subject in second semester 1999. Each question was a variant of a revision question given to students in subject materials (hard i.e. paper copy). A multi-faceted introductory topic is dealt with, the role of precedent applying to courts as law-makers and as resolvers of disputes. Before briefly summarising some of the issues (basic vocabulary), it should be noted that, in its original form, there was an unintended ambiguity in the question. The location of the dispute was given as the Northern Territory. Some students were not sure whether judgments of the High Court, which State courts are bound to follow, applied to a Territory. The ability to ‘discuss’ questions in computer-managed systems will be re-considered later.

The sample questions are quite complicated. The reference to the role of Parliament is important, because, as the supreme law-maker in our system of government, it can make laws abolishing the common law (judge-made). Under the rules of precedent, a trial judge in a lower court is bound to follow and apply as precedent the law stated in higher court judgments. For various reasons, precedent may only change slowly. In those circumstances, a trial judge, faced with a binding precedent which is inappropriate to modern social and economic conditions, may be prepared to adopt a technique called "distinguishing" and so refuse to follow the precedent. The revision question aimed to focus attention on the uncertainty of the legal process, namely the choice of the trial judge to follow or distinguish precedent. Until/unless over-ruled on appeal, either option would be a valid choice by the judge.

The subject design aimed to have students discuss their work on revision multiple choice questions in "face-to-face" tutorials. However, students were rarely prepared to do so. There are two concerns here. First, that students quite naturally do not wish to be seen by the teacher, or their peers to have made mistakes with these questions. For some other subjects which these students study, both multiple choice questions and answers are made available to students. This choice seemed inappropriate for the law subject, as the aim was to try to ensure that students practiced this work. Second, some students who had not worked on the questions before the tutorials expected the tutor to tell them the answer, since the reading materials did not do so. Alternatively, some students had paced their study plans to a schedule reflecting the critical deadline, the test. Their concern was being able to check their answers at that later time.

In first semester 1999, with a small class enrollment, students had been given the option of working through a selection of the Module 1 revision multiple choice questions independently in an on-line system. There were some problems encountered in setting up that system, not the least of which was the limited "boundaries" in the programme design. For simple word recognition type exercises, it is possible to design relatively short question formats. Thus questions testing foundation knowledge about definitions of the common law, binding precedent, or "distinguishing" as referred to above could have been designed to fit a short format. However, as is clear from the examples given, the revision questions were more elaborate.

Once the programme design was adjusted to fit the "more wordy" law questions, it was clear from comments in student evaluations that this on-line option was preferred to discussing these questions in tutorials. As indicated, students choose to work at their own pace, even when this may not be at the more optimal time for learning. There was also the comfort of anonymity. However, the on-line system did not provide a diagnosis of student work, to indicate percentages of correct and error choices. With the second semester enrollment of over 300 students, this was considered to be a critical flaw in the design system. Unfortunately, due to a number of factors, it was not possible to implement either that on-line system or an alternative for the second semester.

This situation may be unusual. The system trailed in first semester may have been eminently suitable for other disciplines like computer programming, engineering, science and mathematics. However, the legal studies discipline required different configurations in design system. If a particular system is chosen as a "one size can fits all" model by a University, problems could inevitably arise in adapting that model across a wide range of disciplines. A more critical issue is the extent to which the teacher becomes tied to the technology, so that process (available designed system) becomes the first consideration before the core issue of planning for learning outcomes, that is to optimise opportunities for students to achieve learning objectives. The focus should primarily be how to best present concepts and provide opportunities for students to work through their understanding and applications of the concepts (Alavi, Yoo and Vogel 1997).

Used judiciously, tests using multiple choice questions have a place in the early stages of the learning process. Well designed questions can test more than word recognition ability or information knowledge skills. To address more complex principles it may be possible to break down those complexities into basic components and then set these out in a series of questions. However, as part of the learning process, students should have the opportunity to practice questions before assessment.

An awareness of potential problems is critical so that strategies can be adopted to avoid them. With large subject enrolments, timely feedback to students is more manageable with this form of testing. The proportion of marks to be given to this form of assessment should be carefully considered. The timing of these tests and the proportion of marks to be given should reflect the foundational or introductory nature of achievement of learning objectives being assessed.

Unless this form of testing is used for a substantial proportion of assessment, the objection, that a student’s written communication skills or ability to develop an argument cannot be tested, is irrelevant. That is not the purpose of multiple choice question tests. Appropriate assessment tasks, as learning progresses, should be used to test those skills.

Within a context of increasing constraints on teaching time, some form of appropriate computer assistance is necessary to ease the workload involved in preparing and checking multiple choice questions, as well as in analysing the responses. This diagnostic feature is essential, but it needs to be developed beyond an ability to indicate percentages of correct and error choices. Otherwise a fundamental problem with the multiple choice questions form will remain. Students may simply guess answers to questions, either correctly or incorrectly. Therefore the teacher needs information about the choices made by students.

Some systems currently available have limitations in the diagnostic tools available. In part this is due to the multiple choice questions form which does not normally provide the student with an opportunity to explain the choice made. Thus reasons for student choices can not be detected. For example, a correct choice may have been no more than a guess, but an incorrect choice may have been due to an ambiguity (undetected by the teacher) in the answer options, a mis-reading by the student or lack of attention to detail. When the multiple choice question test is being used to assess subject "vocabulary" it is important to clarify whether an error is due to a mis-understanding, and conversely whether correct answers do reflect understanding of terminology, not guesses.

A relatively crude way of dealing with the guess aspect of this problem when multiple choice questions are used for formative assessment would be to insert a timer in the programme. Another solution would be to provide students with the opportunity to discuss or challenge questions, through a linked e-mail facility (Cox and Clark 1998). However, that model will necessarily involve teacher time and may only be suitable if the subject design incorporates the multiple choice questions form as a substantial proportion of the teaching/learning process.

For summative assessment, statistical modelling could be considered in which, instead of zero, a grading of marks is given to the error answers, depending on the weighting given by the teacher to the range of error. This is likely to be very problematical. However, a marks weighting is less likely to identify the "lucky guess" correct response.

The author does not have a simple solution to this issue. Problems were encountered when attempts were made to take up the question of diagnosing the opinions behind multiple choice question answer choices by students. One comment referred to adding to the computer-managed learning system "an on-line assessment item type that allows for free-form entry of text....This would automatically and blindly be transmitted to the academic for marking and subsequent integration with the other test results". The author was not seeking an extra marking load running parallel with computer-managed multiple choice question testing.

The issue being posed may have been expressed unclearly to the respondent quoted above, but in essence it is this. "Can a system be programmed so that information can be obtained about how students approach the task of answering multiple choice questions?" Possible options are for the student to explain the strategies he/she adopted, which in itself could be in a modified multiple choice questions form, requiring values to be assigned to different options. An alternative is to prepare a branch-off from targeted responses, with either short answer or multiple choice questions. The branching questions would not have to be scored. Indeed it might be possible in some circumstances to provide the student with an opportunity to change the earlier incorrect response to the question in the test.

Advantages and disadvantages of multiple choice questions have been considered. Some questions have been posed and possible solutions suggested for improving the diagnostic evaluation by the teacher for this form of testing. These suggestions would be time consuming to prepare and would require a committed collective approach between the teacher and the technologist.

Because the author does not have computer programming expertise, it is possible that present technology based systems are already being used, for disciplines other than law, in the ways suggested. However, it appears that the general thrust of the case-study examples of subjects being offered in flexible delivery mode tend to concentrate on the opportunities for inter-activity ("chat group") and self-managed learning tasks, including the multiple choice question form.

The inherent ambiguities about response choices for multiple choice questions do not appear to have been vigorously taken up as issues of concern and for which solutions should be sought in computer managed learning programmes. The teacher has important tasks in both identifying individual learning difficulties and evaluating, or credentialing, the general student group’s learning outcomes. Computer managed multiple choice questions testing already assists in these tasks. The issue is to improve the capabilities of educational technologies for those purposes.

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For readers unfamiliar with law, Trigwell’s case was an example of the High Court refusing to change an ancient common law rule, that a farmer has no liability for damage caused by straying stock (not known to be dangerous) when that damage is caused to users of roads adjoining the farmer’s property. Because the High Court is at the top of Australia’s court hierarchy (i.e. an appeal on questions of law can not be made to any other court above it), the High Court’s decisions settle the common law rule for all of Australia.

The decision by the Australian High Court in State Government Insurance Commission v Trigwell has been criticised and some State Parliaments have enacted laws which abolish this no liability rule. Since that judgment, the composition of the High Court has also changed and now has judges who were not involved in that decision. Assume that in Western Australia no legislation has been passed to change the Trigwell common law status.

Cartman operates an emu farm in Western Australia. One evening in 1996, an emu escapes from his farm and runs across the path of an on-coming car being driven by Lois along the road at the boundary of Cartman's farm. In trying to avoid the emu, Lois’ car slewed off the road and into a ditch. Lois suffers substantial injuries.

When the trial of her case is heard before a court in Western Australia sitting with a single judge, Cartman's lawyer argues that because of State Government Insurance Commission v Trigwell, Lois's claim must be dismissed. The judge does not accept that argument.

Which of the following statements is correct?

1. The judge has made an appropriate decision. State Government Insurance Commission v Trigwell could be distinguished on the materials facts because an emu is a native bird and not animal live-stock.
2. The judge is clearly wrong. State Government Insurance Commission v Trigwell can not settle the common law for Western Australia because that case originated in South Australia, but it is a persuasive precedent that should have been followed by this judge.
3. The judge has made the correct decision. When the composition of the High Court has changed, earlier decisions operate as persuasive precedent only.

The same facts, as in the first two paragraphs of Question 1 apply. The different approach taken by the judge is then stated as follows;

At the trial of her case before a court sitting with a single judge, Cartman's lawyer argues that because of State Government Insurance Commission v Trigwell, Lois's claim must be dismissed. The judge accepts that argument.

Which of the following statements is correct?

1. The judge has made a justifiable decision. State Government Insurance Commission v Trigwell can not settle the common law for Western Australia because that case originated in South Australia, but it is a persuasive precedent for this judge to follow.
2. The judge has made a decision which can be justified under the doctrine of precedent. State Government Insurance Commission v Trigwell settled the common law for all of Australia.
3. The judge has made an incorrect decision. If Parliaments in other States of Australia have enacted laws which over-turn the High Court decision in State Government Insurance Commission v Trigwell a lower court is required to ignore that precedent