Business and Corporation Law

This document provides an overview of Tort Law, Employment Law, and Workplace Health and Safety in the context of Business and Corporation Law. It discusses the concept of negligence, defenses in tort law, tests to determine employment status, and the legal obligations of employers in ensuring workplace safety. The case studies and references provide practical insights into these legal aspects.

Running Head: BUSINESS AND CORPORATION LAW 0
Business and Legal
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Executive Summary
Different laws are there that provides provisions regarding different aspects. Tort is one
of the area of common law that provides the manner to deal with the situations where a person
do civil wrong with others. Further, in the area of employment law, rights, and duties of employer
depends on the fact that whether a person is an employee or a contractor. Apart from this, an
employer is liable to provide a safe and healthy workplace and environment and to ensure the
same; many pieces of legislations are there. In the presented report, three questions related to
Tort Law and Employment Law would be answered under different headings.

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Contents
Executive Summary..................................................................................................................................1
Question 1 (A)...........................................................................................................................................2
Question 1 (B)...........................................................................................................................................3
Question 2.................................................................................................................................................4
Question 3 (a)............................................................................................................................................5
Question 3 (B)...........................................................................................................................................6
References................................................................................................................................................7

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Question 1 (A)
Tort Law is a branch of common law which reflects civil wrong. Negligence is a term
where one party breach duty of care that he/she owes to another party. Certain relations are
mentioned there where one party owes such duty to another. Under the duty of care, an
individual is required to behave in a responsible manner while dealing with others. In a
circumstance where such a person fails to do so, the duty of care seems to be breached. Courts
are free to decide whether a duty of care exists in a relationship or not. The decision given in the
case of Caparo Industries plc v Dickman [1990] UKHL 2 is necessary to know here. Caparo test
has been provided by this case. This test is helpful to determine the existence or non-existence
of duty of care. Three requirements need to be satisfied to pass this test. First of all, the
defendant must have a proximity relationship with the claimant. The second requirement is that
the risk is required to be foreseeable at the end of the defendant and lastly imposing duty of
care to the defendant must be reasonable and fair (Bergkamp, Faure, Hinteregger & Philipsen,
2015). If all the three conditions are satisfied in a case then the duty of care would be deemed
to be there. Further to say that in addition to the duty of care, the same is required to be breach
also. In the case of Donoghue v Stevenson [1932] AC 562, four conditions have been given that
need to be satisfied to make a claim for negligence. These conditions are mentioned below:-
 Presence of duty of care (Lawshelf.com, 2019)
 Breach of duty
 Damages
 Damages must be directly impacted from breach of duty (Injury.findlaw.com, 2019)
If all the above-mentioned requirements are satisfied then a person suffered from
damages can initiate a claim of negligence against another. Under negligence, a claimant can
suffer from different kind of losses such as personal injury, financial losses, and psychiatric
harm. Considering nature and quantum of loss, courts decide the amount of damages.
In the presented case, Leon was the visitor of Eldarado Shopping Centre. He entered
the supermarket and it was a rainy day. The issue of the case started when Leon fall on the
floor which was a granite polished floor. Here applying the Caparo test, this is to state that the
shopping center had a duty of care. The same had a relationship of proximity with its visitors.
Further, the risk was foreseeable. When it was wet outside, an injury was foreseeable while

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walking on a polished floor. Lastly, it seems to be fair to impose a duty to the shopping center as
the same was required to behave reasonably in this case.
Applying the provisions of Donoghue v Stevenson, all the requirements seem to be
satisfied here. Shopping center owed a duty of care and the same breached this duty. They
have not made any arrangements to prevent foreseeable injuries, and in this manner breached
the duty of care. Leon suffered from a physical injury and the same was a result of negligence
committed by the shopping center.
As all the conditions of negligence are satisfied, Leon can initiate an action against
Shopping center for the damages of physical injury.
Question 1 (B)
Some excuses are given under Tort Law that may be used by a defendant to reduce the
level of liability out of a claim of negligence. These excuses are known as defenses.
Contributory negligence is one of such defense. As per this defense, the liability of the
defendant is reduced in those cases where claimant also contributes to injury or loss. Further
volenti non fit injuria is another important defense which is available in those cases where
claimant knows the risk and still voluntary agrees to adopt the same.
In the given case, nothing is mentioned about the negligent behavior of Leon. It is
mentioned that he was only walking inside the shopping center. Here Leon did not make any
action that contributed to the injury. Further, he did not accept the risk in a voluntary manner.
Shopping center cannot take the defense of contributory negligence or volenti non fit injuria.
Question 2
Many factors are there that the court considers to check the employment status of a
person. A person may be an employee of the company or may be an independent contractor in
general. Under the decision of various cases, some common law tests have been provided that
courts use and apply to determine employment status. Yewens v Noakes (1881) 6 QBD 530 is
an important case that has provided a control test. According to this test, courts check the level
of control of the employer on the activities of the person. If an employer decides dress, working
hours and manner of working of a person then such a person is considered as an employee of
the company and not the independent contractor. In the decision of Humberstone v Northern
Timber Mills (1949) 79 CLR 389, the court held that in those cases where a person wears the

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uniform of an organization then the same is treated as an employee and not the independent
contractor in respect to that organization. An integration test is another important test provided
under common law. The test has been established in the case of Stevenson, Jordan & Harrison
Ltd v MacDonald & Evans [1952] 1 TLR 101. According to the provisions of this test, an
employee is more integrated into the affairs and dealings of the company in comparison to an
independent contractor. It means if a person is quite involved in the business and takes interest
in the same then, the same is considered as an employee of the organization.
Apart from the above mentioned two tests, another test is also there which is known as a
multi-factor test. Under this test, the court considers many of the factors. It means court review
relationship of a person with an employer in totality. On Call Interpreters and Translators
Agency v Commissioner of Taxation (No 3) [2011] FCA 366 is an important case to discuss,
where it has been provided that a person is treated as an employee when the manner of
working of the same is decided by the employer. In addition to the manner of working, other
factors that are considered under multifactor test are mutuality of obligation, degree of control,
personal relationship and so on.
In the given case, Edam was associated with Imperial Pty Ltd. as an independent
contractor and recently his contract came to an end. Here the issue of the case is to check his
employment status. Applying the very first common law test ie. Control test this is to state that
he was under control of the company. He was required to act according to the company’s
guideline and was under the strict supervision of the same. In this manner, it is clear that his
acts were in total control of the company. Further, he was also used to wear a uniform with
company’s logo. Here applying the decision of Humberstone v Northern Timber Mills, he seems
to be an employee. Edam was an employee of the company as the same is proven under the
control test and multifactor test.
Question 3 (a)
Every employer is required to consider the safety of employees. Such consideration
becomes even more important in those cases where the nature of work is hazardous in
nature. In Australia, Workplace Health And Safety Regulation 2011 are there to ensure the
safety and good health of employees. These are federal regulations applicable throughout
Australia. In addition to the federal regulations, some state laws are also there which

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address the issue of workplace health and safety. In Victoria Occupational Health and
Safety Act, 2004 is the lead act (hereinafter referred to as the OHS Act), which is there to
provide provisions related to workplace safety. The act is applicable to all the employers of
Victoria State of Australia. In conjunction with the act, some state regulations are also there
in Victoria that is known as the Occupational Health and Safety Regulations 2017 (Vic). In
the case presented hereby, ‘Willow Engineering’ is the employer that is required to comply
with the above-mentioned act and regulations while operating its functions in Victoria.
In order to discuss the subjective act and regulation, this is to state that part 3 of the
act outlines the general duties of the employer in relation to health as well as safety.
Further, as per part 4 of the act, it becomes the liability of the employer to consult with
employee all the matters where they face issues. Occupational Health and Safety
Regulations 2017 build on the OHS Act. In other words, this can be stated that the
regulations provide additional clarity to act and support the operations of the same. These
regulations define the manner in which employers can fulfill their duties and responsibilities
under the OHS Act. For instance, these regulations provide safe operations in relation to
mines and other major hazard facilities, training for high-risk work, removing and managing
asbestos. These regulations have been effective from 18th June 2017. Prior to these
regulations, OHS Regulations 2007 were there to provide additional support to the OHS
Act. Workplace Injury Rehabilitation and Compensation Act 2013 is another important act,
which provides provisions for those situations where a worker of Victoria gets workplace
injury. Section 3 of the act says that injury includes mental as well as physical injuries.
Further, in addition to this all the disease that are attained by workers in the course of
employment, are also counted as injury. Here Willow Engineering was also required to
consider this legislation too. As Bret attained lung infection, hence, it was a clear breach of
Workplace Injury Rehabilitation and Compensation Act 2013 and the company will be held
liable under this act too.
Question 3 (B)
It is provided in the case that the lung infection seems to be a reason for work practices that
Bret was pursuing. It means Willow engineering is not a safe workplace to work and the
same needs to make the changes in practices adopted by the same. Many of the times one
or more practices or elements used by organization creates the situation of workplace
hazard. Many of the ways are there that can be used by Willow Engineering to avoid this

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risk in the future. First of all, the organization is required to check their machines.
Sometimes old and outdated equipment are the main reasons behind such health risks.
The organization can reduce the level of risk by changing or by arranging a service to their
cutting machine. Secondly, proper safety masks should be provided to workers. A worker,
who is working on cutting machine, is obvious to be in a touch of lung infection as the same
takes polluted air. Therefore, by providing a qualitative mask, such injuries can be
prevented. In conjunction with this, the organization is required to ensure that workers get a
proper break after a defined interval. Ventilation should be proper so the dust particles
would not stay in the room for a long. By adopting these measures, an organization can
prevent potential hazards in the future.

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References
Bergkamp, L., Faure, M., Hinteregger, M., & Philipsen, N. (2015). Civil Liability in Europe for
Terrorism-Related Risk. UK: Cambridge University Press.
Caparo Industries plc v Dickman [1990] UKHL 2
Donoghue v Stevenson [1932] AC 562
Humberstone v Northern Timber Mills (1949) 79 CLR 389
Injury.findlaw.com. (2019). Proving Fault: What is Negligence? Retrieved From:
https://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html
Lawshelf.com. (2019). Introduction to Negligence. Retrieved From:
https://lawshelf.com/courseware/entry/introduction-to-negligence
Occupational Health and Safety Regulations 2017
Occupational Health and Safety Regulations 2017 (Vic)
On Call Interpreters and Translators Agency v Commissioner of Taxation (No 3) [2011] FCA
366
Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101
Workplace Health And Safety Regulation 2011
Workplace Injury Rehabilitation and Compensation Act 2013
Yewens v Noakes (1881) 6 QBD 530