This case analysis examines whether the employer was negligent in his actions or omissions, leading to subsequent injuries to the employee. It discusses the elements of negligence and the employer's duty of care. The case facts, legal issues, and supporting arguments are also presented.
Contribute Materials
Your contribution can guide someone’s learning journey. Share your
documents today.
NEGLIGENCE Negligence Student’s Name Institution
Secure Best Marks with AI Grader
Need help grading? Try our AI Grader for instant feedback on your assignments.
NEGLIGENCE2 Case 2. Whether the employer is negligent. Introduction The main issue in this case is whether the employer was negligent in his actions or omissions, hence, leading to the subsequent injuries to the employee(Buckley, 2017). An employeris expected to act diligently by providing a safe and conducive working environment for all workers. Negligence is a failure to take reasonable care to prevent causing harm to other persons (Horsey & Rackley, 2015). In order for an employee to sustain a negligence suit against an employer, he must prove the following four elements i) employers’ duty to care for employees; ii) breaching the duty of care; iii) the employee got injure since the employer breach his duty; iv) the occasioned harm was not too remote and that the employer foresaw the consequences of his acts or omissions. Once there is proof of the four elements listed above leading to employee injury, the court may award compensation for the injuries sustained. In determining the culpability of the defendant, courts have to establish the objective and subjective basis of the defendant’s actions(Bermingham & Brennan, 2018). Due Diligence This involves taking reasonable steps in the process of avoiding committing an offence or tort. The steps are guided by the pillars of due diligence as seen in figure 1(Erbacher, 2017).These acts can be very costly or inexpensive with regards to companies or in the workforce environment. Some of the well-known activities as well as their costs in due diligence are seen in figure 2.
NEGLIGENCE3 Figure 1 above shows the pillars guiding the acts of due diligence.
NEGLIGENCE4 Figure 2 above shows the due diligence costs related to its activities. Figure 3 above shows the benefits of conducting due diligence.
Paraphrase This Document
Need a fresh take? Get an instant paraphrase of this document with our AI Paraphraser
NEGLIGENCE5 The above diagrams show the inconvenience, time consuming, expensiveness or tediousness as well as the benefits in conducting due diligence. Due diligence does go beyond what people normally make and perceive that it only lies in health safety. Risk Management This is the act of evaluating and forecasting risks as well as defining procedures that help minimize or avoid the impacts coming from possible risks(Hutchins, 2018). The process of conductingrisk management can be gotten from studying the components found in figure 4. Risk management can be helpful in providing tools and templates for risk repository, risk checklist and risk registration during project management. Figure 4 above shows the components present during risk management. Risk Analysis During risk analysis, risk has to be identified to prevent project’s objectives and outcomes from changing. After identifying the risk, there is a quantitative and qualitative analysis of the risk looking for method of mitigation. Hence the following analyses have to be performed.
NEGLIGENCE6 Risk Occurrence probabilities These probabilities are categorized into three as listed below: 1.Highly probable (percentage between 80 to 100) 2.Possibly medium (percentage between 60 to 80). 3.Possibly low (percentage between 30 to 60). Risk Impact The following are the impacts that risk may cause to organizations. Highly catastrophic (This is given an A rating of 100 points). Medium-Critical (This is given a B rating of 50 points). Low-Marginal (This is given a C rating of 10 points). Hence, it would be better if the following matrix is used to give a better risk impact analysis. Objectives of Projects Rating CRating BRating A ScheduleThere are almost zero schedule delay. Project delay is about 1 week Project delay is about is more than 2 weeks CostThere is almost 0 increase in cost There is an increase in cost between 5 to 10% There is more than 10% increase in cost QualityBarely noticeable reduction in quality The reduction in quality fails to impact vital functionality The reduce quality requires approval from high-level
NEGLIGENCE7 management. ScopeBarely noticeable scope decrease There are minor scope areas affected There are major affected areas of scope to unacceptable functioning. Risk exposure Exposure in risk is calculated by the multiplication of impact ratings with risk probabilities. Thereby developing the table below. Probability Low (%) (0-30) Medium-Low (%) (30-60) Medium-High (%) (60-80) High (%) (80-90) ImpactRating A Scored 30 (Moderate exposure) Scored 60 (High exposure) Scored 80 (Very high exposure) Scored 100 (Very high exposure) Rating B Scored 15 (Low exposure) Scored 30 (Moderate exposure) Scored 40 (Moderate exposure) Scored 50 (High exposure) RatingScored 3Scored 6Scored 8Scored 10
Secure Best Marks with AI Grader
Need help grading? Try our AI Grader for instant feedback on your assignments.
NEGLIGENCE8 C(Exposure is low) (Exposure is low) (Exposure is low) (Exposure is low) Timeframe in Risk Occurrence The occurrence time frame of risk will be set up as shown in the table below. TimeframeDescription FarPast 3 months MidBetween 2 to 3 months NearAt most 1 month The Case’s Facts Castro v Transfield (Qld) Pty Ltd. (57 ALJR 619) 1984 An employee named Castro was able to get injuries on his back and this permanently disabled him. When he was carrying an oxygen bottle, that was too heavy, he slipped and fell. Since he was not part of the team, he was forced to solely carry the oxygen to the site which was about 20 to 30 yards away for more than two weeks. The nature of the site made it impossible to carry the bottle on the trolley. Thus, he used to carry the bottle across his arms and in the event fell with a bottle on his body’s side. The defendant claimed that the worker could seek help from other workers at the site since the oxygen bottle was very heavy to have been carried by a single man (Lunney, 2017).
NEGLIGENCE9 Legal issues 1.Is the defendant liable in negligence for the injuries sustained by the worker? 2.Are employers supposed to care for their employees? 3.Was causation foreseeable or too remote? 4.Did the plaintiff’s conduct contribute to his own injury? Supporting Plaintiff’s Argument First issue For defendants to be charged for the tort of negligence, the following four elements must be proved beyond probable probabilities: 1.Duty of care Should the defendant be caring towards the palintiff? Yes, because there was a unique relationship (employer\employee) between the involved individuals. For instance, courts acknowledge the duty of care for some of the relationships such as: Employer/employee Manufacturer /consumer The yardstick for measuring duty of care is when the defendant’s choice of action is compared with a reasonable man’s possible choice of action in a similar situation. Therefore, the defendant must avoid acts that could cause harm to other people(Plunkett, 2017). The case ofCaparo Industries Plc v Dickman (1990) UKHL 2;the court’s establishment on the threshold for testing ones caring duty involved: i) the harm incurred being foreseeable; ii)
NEGLIGENCE10 existence of proximity relationship between the defendant and the plaintiff iii) it must be reasonable, just and fair to impose liability. In this context, the defendant was supposed to care for the plaintiff to ensure a safe and secure working environment for all workers at the site. 2.Breaching the duty of care Defendants breach their duty of care if his/her actions falls below the expected standard of a reasonable man. In determining whether there is a breach in such duty, courts set the caring standard expected in these scenarios, whereby, there must be a linkage between the conduct exhibited by the dfendant and the harm occasioned(Mulheron, 2016). The test is if a reasonable person in the similar position of the defendant could have predicted that the consequences of his actions may have resulted to injuries to the plaintiff. A reasonable person is expected to do due diligence in order to avoid harm. The courts do not require the plaintiff to prove the precise manner in which harm occasioned was foreseeable, but it is enough to prove that it was foreseeably reasonable that the defendant's carelessness could have resulted to the plaintiff's injury. However, In the case ofAustralian Traineeship System and Colchester GR Pty Ltd (Shell Service Station Waverley) V Wafta (2004) NSWCA 230;a worker got injuries to the back while carrying a corner of a refrigerator’s cabinet display in order to place a clean mat under the refrigerator. The trial court held the defendant liable for negligence since the defendant failed to notify employees against lifting the refrigerator’s corners, leading to injuries sustained by the employee. The injuries were reasonably foreseeable. Upon appeal, the Court of Appeal overruled the verdict produced in the trial court and clearly defined that the reasonable employer in the defendant’s state in life could not have predicted that his worker could attempt to
Paraphrase This Document
Need a fresh take? Get an instant paraphrase of this document with our AI Paraphraser
NEGLIGENCE11 lift the refrigerator’s corner without any assistance. The court agreed that is was reasonably foreseeable that a worker might put back the mat under the refrigerator at an angle in the same position it was after cleaning it. However, the court held that any reasonable employer could not have predicted with reason that employees may opt to solely try replacing the mat under the refrigerator. The court observed that it was fanciful and far-fetched that a reasonable employer would have foreseen that an experienced worker could try to lift the refrigerator’s corner. The court held that the risk was too obvious and the employer was not held liable(Horsey & Rackley, 2015). The calculus of negligence is used to determine the due diligence a reasonable man would have undertaken to avoid foreseeable risks. A reasonable man will weigh the probable risk and possible seriousness of the damage against the existing inconveniences and in implementing specific due diligence measures. It is important to note that the risk must be substantial not too obvious and that the defendant must have foreseen the risks involved but failed to take reasonable due diligence to avoid causing harm. Therefore, the defendant, in this case, breached the responsibility to care when there lacked provision of safe means of transporting the bottle machine to the site. Also, the defendant failed to warn the employee against carrying it without assistance(Bermingham & Brennan, 2018). 3.The plaintiff suffering injuries The plaintiff is supposed to be suffering injuries due to the failure of the defendant to offer care. The harm must be linked with the defendant’s conduct. Damages may include the following; Death or personal injuries Loss of future earnings;
NEGLIGENCE12 Loss of expectation of life 4.Causation It is derived from the word ‘cause’ which implies that liability cannot be imposed on the defendant unless the claimant proves on a balance of probability that the injuries sustained are directly or indirectly connected with the defendant’s conduct. It is very important to establish a link that ties the actions leading to the wrong committed as well as the harm incurred. Where there is no causal connection then the damage will be too remote and the suit cannot be sustained. The established test is the ‘but for test’. For instance, injuries would not have been incurred were it not for the lack of action or omission by the defendant(Green, 2015). There are two types of causation: i)Factual ii)Proximate cause However, the test cannot be used where there are many causal agents because it would lead to injustice. Factual causation involves an action that makes it possible to establish causation. Proximate cause in law is where there exists ways a defendant might have foreseen danger (Horsey & Rackley, 2015). Second Issue Employers are supposed to offer caring acts towards their employees. They should be providing a safe, clean and secure environment for working. In this scenario, a reasonable employer would have implemented safer mechanisms of transporting the bottle to the site. The nature of the site made it impossible to implement better transportation methods such as a trolley. The defendant’s failure to implement due diligence measures caused harm to the employee(Green, 2015).
NEGLIGENCE13 Third Issue In my opinion, there was a link between the negligence that the defendant exhibited and the injuries incurred to the plaintiff. The defendant should be held liable for the harm as the chain of causation remained intact. Supposedly, in case the defendant was not as negligent as it is seen, the plaintiff may have avoided being injured. However, the defendant was negligent in failing to provide a safe working environment, the plaintiff suffered injuries. Looking intoTurner v South Australia (1982) 42 ALR 669;It is seen that the employer was found liable for failure to provide safe working system when an employee was injured in the back while attempting to manually lift a drum, whose volume amounted to 44 gallons, that was laid down. The court observed that the risk involved when the employee attempted to lift the drum, thus causing injury, was costly compared to the costless due diligent measures required. It was the responsibility of the crane driver to put the drums in a vertical position(Lunney, 2017). Argument in Favour of the Defendant Fourth Issue The plaintiff by carrying the heavy bottle of oxygen across his arm without any aid knew of the risk and assumed it. The plaintiff is partly to be blamed for the harm caused. This is because, that even though the employer owed the worker a duty of care, it doesn't mean that the employee should not exercise careful measures to avoid harming himself(Plunkett, 2017). The defendant can claim negligence that led to contributive injury to the plaintiff. There was a failure by the plaintiff in exercising reasonable care in the circumstance to secure their own safety. The defendant can also allege that the risk was too obvious and any good-thinking
Secure Best Marks with AI Grader
Need help grading? Try our AI Grader for instant feedback on your assignments.
NEGLIGENCE14 individual in a similar scenario of the worker could have foreseen the possibility of harming themselves. The plaintiff, in this case, failed to put due diligent measures to prevent the accident. The plaintiff assumed the risk involved in spite of having full awareness of the foreseeable harm. This showed full comprehension and appreciation of the level of damage and features that risk incur. Therefore, the plaintiff voluntarily appreciated the risk. This shows that the plaintiff’s own actions led to the injuries which makes the defendant absolvable from liability(Goudkamp, 2014). Damages These are common law tort remedies in the form of monetized compensation awarded to victims of tortious wrong to try and put them in the position they were before the wrongs were committed. The plaintiff can claim either general or specific damages for the pain, injuries and expenses incurred(Mulheron, 2016). Conclusion In proving negligence, the plaintiff must demonstrate to the court that the duty owed to them was breached by the defendant. The proof is on the balance of probabilities. The plaintiff should be suffering harm due to negligent actions caused by the defendant. Damages are awarded at the discretion of courts based on the evidence provided(Horsey & Rackley, 2015).
NEGLIGENCE15 References Bermingham, V., & Brennan, C. (2018).Tort Law Directions.Sydney: Oxford University Press. Buckley, R. (2017).Buckley: the Law of Negligence and Nuisance.Vancouver: LexisNexis. Erbacher, S. (2017).Negligence and Illegality.Sydney: Bloomsbury Publishing. Goudkamp, J. (2014).Tort Law Defences.Darwin: A&C Black. Green, S. (2015).Causation in Negligence.Darwin: Bloomsbury Publishing. Horsey, K., & Rackley, E. (2015).Tort Law.Melbourne: Oxford University Press. Hutchins, G. (2018).ISO 31000: 2018 Enterprise Risk Management.Sydney: Greg Hutchins. Lunney, M. (2017).A History of Australian Tort Law 1901-1945.Melbourne: Cambridge University Press. Mulheron, R. (2016).Principles of Tort Law.Perth: Cambridge University Press. Plunkett, J. (2017).The Duty of Care in Negligence.Brisbane: Bloomsbury Publishing.