The Business and Legal Environment Assignment

THE BUSINESS AND
LEGAL ENVIRONMENT

Table of Contents
INTRODUCTION...........................................................................................................................3
MAIN BODY..................................................................................................................................3
CASE STUDY ONE........................................................................................................................3
Legal Actions that Leon can take and damages that he would be entitled to..............................3
Defence available with shopping centre after they are sued by Leon.........................................4
CASE STUDY TWO.......................................................................................................................5
Classification of Adam as Imperial’s employee or not...............................................................5
Main factors court needs to take into account for determination of worker’s status...................5
CASE STUDY THREE...................................................................................................................6
Regulations to be followed by Willow Engineering in Victoria.................................................6
Methods to stop spread of this infection in future and avoiding potential hazards in future......7
CONCLUSION................................................................................................................................7
REFERENCES................................................................................................................................1

INTRODUCTION
Business and Legal environment involves the various laws and legislations formulated by
the government to regulate business and its operations. In the present report, three different case
scenarios have been discussed. All the cases involve incidents that have occurred at the
workplace of different organizations and will illustrate what is the case study, what are the
different issues that the plaintiff has experienced, whether any file suit can be filed by him and
what damages can be recovered by the plaintiff. Further the report will also highlight what are
the defences available with the defendant and how these can be exercised in-case the plaintiff
files a case against the defendant in the Australian court.
MAIN BODY
CASE STUDY ONE
Legal Actions that Leon can take and damages that he would be entitled to
The present case study states that while visiting Eldorado Shopping Centre, Leon, a
customer slipped on the polished granite floor and sustained major injuries. As per the Australian
Tort Law, the plaintiff i.e. Leon has the right to recover the expenditure caused due to pecuniary
damages sustained by him. The plaintiff here is entitled to recover the nominal damages due to
negligence on the part of defendant i.e. Shopping Centre managers (Luntz and et.al., 2017).
Although the law does not given any provision for emotional or non-pecuniary damages, but
however, if the plaintiff has incurred any pecuniary damages, he is entitled to claim damages
against non-pecuniary damages i.e. emotional damages as well.
In the present case, the shopper Leon visited the store on a wet day and slipped on the
polished granite floor which caused him injuries. He can file a legal suit against the shopping
centre owners claiming refund of the expenditure on the medical bills that he incurred due to the
injury and additionally he can further sue the company for emotional damages or distress that he
might have incurred while suffering from the injury.
With reference to the previous case of Australia titled Kavanagh v/s Akhtar, the court
upholded a legal doctrine called eggshell skull rule which stated that the tortfeasor is liable to
p[ay the entire extent of damages that the claimant incurred even if such damages were caused
due to the negligence or unforeseen frailty of the claimant himself (Stickley, 2016). This doctrine
can be used in the current case as well by Leon while filing a case against the Eldorado Shopping

Centre which will help the plaintiff in recovering the damages that he has incurred pertaining to
both physical and emotional damages that he has incurred.
Defence available with shopping centre after they are sued by Leon
Majorly there are three categories of defences available to the defendant for the tort
claims filed by the plaintiff. These are:-
 The defendant i.e. the tortfeasor does not owe any duty to the claimant.
 No breach of duty exists.
 Even if the breach of duty does exists, the losses incurred by the claimants are not on
behalf of the defendant i.e. the defendant is not responsible for such losses incurred.
Apart from exercising these defences available to the tortfeasor i.e. the defendant there
are some other defences as well which can be exercised by the defendant. These are claimant’s
own wrong doings, contributory negligence, necessity and self-defence, limitation, inevitable
accident, act of god etc. Amongst this, the “inevitable accident” defence can be applied when the
defendant is capable of arguing that even after exercising the necessary caution and maintaining
due diligence, the accident could not have ben possibly avoided on behalf of the defendant and
was entirely the fault of claimant i.e. the plaintiff (He, Feng and Huang, 2016).
In the current case, if the shopping company Eldorado Shopping centre is sued by the
plaintiff or claimant i.e. Leon, the tortfeasor i.e. the Shopping Company can present the defence
of Inevitable Accident. They can argue that it was a rainy day and hence the shoes of the
claimant were bound to ben wet. They can further state that the floors of the shopping mall are
always polished and kept clean and on this rainy day also, they floors were cleaned like they are
on any other day. Leon knew that it was a rainy day and since his shoes were wet, he did not
maintain deliberate caution which made him fall thus leading to the injuries that he is suffering
from. This can help in adequately concluding that the shopping company is not liable in any
manner to pay for the damages claimed by the plaintiff.
It can be further linked to a similar case of Stanley v/s Powell [xxiv] under which the
plaintiff employed as cartridge carrier for a shooting party got hit in the eye when a member of
the party aimed at a tree which rebounded and hit the plaintiff’s eye (Howarth and et.al., 2016).
The court ruled that plaintiff cannot claim damages since the defendant did not perform it
intentionally and it was inevitable on defendant’s part.

CASE STUDY TWO
Classification of Adam as Imperial’s employee or not
Although there is no legal definition of the word employment in Australian statute, as per
the common law, it can be defined as a relationship under which one party referred as employee
is subservient and follows orders of another directing party known as employee. Independent
contractor on the other hand, as per Independent Contractors of Australia (ICA) can be defined
as those independent business operators who are free to provide their services to multiple parties
who in return pay them and also have the power to refuse or accept a work and even delegate it
as per their own terms and conditions (Keyes and Wilson, 2016). In a previous high court case of
Hollis v/s Vabu, it was decided by the court that due to a high degree of control of Vabu over
Hollis who was an employee, verdict was passed that Hollis would be considered as an employee
of Vabu.
In the present case it can be clearly observed that although Adam was working for the
‘Imperial Pty Ltd’ in the capacity of an independent contractor yet he is wearing company’s
uniform and is strictly regulated by the supervisors of the company. He is not allowed to operate
outside of the company’s purview and all these points clearly help in concluding that Adam is
not an independent contractor but an employee of Imperial Pty Ltd. and is legally capable of
demanding all the provisions that an employee of Imperial Pty Ltd is entitled to. This can be
further backed by the case of Hollis v/s Vabu illustrated above.
Main factors court needs to take into account for determination of worker’s status.
In Australian courts, in order to distinguish employees form independent contractors, a
multifactorial totality test is implicated which addresses one major question i.e. how much
control does a worker has on his own activities. This is done by assessing some major factors:
Relationship: When the organisation has the power to direct the performance, risk is borne by
organization, personal income tax is deducted, worker’s use of his own material is compensated,
no right to work in any other organization, cannot delegate the work and workers receives
benefits like sick leave, annual leave, bonus etc., the worker is categorized as an employee
otherwise an contractor (Stafford, 2016).
Control: Degree of control exercised by one party over another helps in determination of the kind
of relationship that is shared between two individuals.

Remuneration Mode: Employees are paid periodically a fixed amount and contractors work for a
predetermined amount paid usually after the service is provided.
Tools and Equipment: An employees does not use his own tools and is compensated if used and
contractor uses his own set of tools for completing the work allotted.
Risk and Liability: Contractor is himself liable for all the risks taken and employee’s liability is
taken by the company for which he works (Mundele, 2015).
Apart from above, there are many other additional factors which the like business
expenditure, exclusive engagement, right of delegation etc. that are used by the court to evaluate
whether a worker is employee or an independent contractor.
CASE STUDY THREE
Regulations to be followed by Willow Engineering in Victoria
As per the Victorian legislation, Occupational Health and Safety Regulations, 2017,
states that both employers and workplace parties i.e. employees etc. need to integrate with each
other and work collectively so that health and safety of workers can be minimized. Those
procedures which involve asbestos containing materials, asbestos containing dusts or asbestos
exposure standards, need to be properly treated by implementation of Membrane Filter Method,
methods determined by the authority as per regulation number 6 and an occupational health and
safety management system needs to be formulated that is approved by JAS-ANZ. Further
employment law of Victoria states that employers are liable to provide a safe and healthy
environment to their workers so that any potential hazards can be avoided (Roca and et.al.,
2017).
In the present case, there are fine particles of plastic which are being released during the
process of cutting machine at Willow Engineering. Bret who is an employee has developed a
lung infection which has resulted from inhaling of these plastic particles. In order to operate in
Victoria, the company would have to make major modifications in their manufacturing process
complying with the OHS Act as well as Employment Law. Further, Mr Bret is legally entitled to
receive a compensation for his medical bill as well as for the permanent damages caused to his
lungs. Additionally the company might even have to face review of its procedures adopted for
manufacturing done by authorised body in Victoria. Additionally the threats of the company that
Mr Bret will be removed are entirely baseless and can be easily challenged in the court.

Methods to stop spread of this infection in future and avoiding potential hazards in future.
As per OHS, it is stated both the employees and employers must adopt practicable duties
toward ensuring that workplace safety is maintained and hazards if any are avoided. Various
methods to avoid such exposure to hazardous substances include:
 Avoid altogether, of possible, the excretion of any hazardous material and its use.
 Isolate the activities excreting such hazardous substances in distant areas separate from
the workplace.
 Implement proper safety procedures and provide the necessary equipment required for
the protection of workers from such hazardous substances.
 Monitor the equipment used and make it available to the employees working in that area.
 Conduct training activities of the employees and incorporate updated technology.
 Develop proper sign boards and cautions that will warn the employees handling with
these activities
 Conduct regular air and environment tests in the areas where such operational activities
take place so that potential hazards can be identified and removed.
 Conduct proper and regular medical examination of the employees as well so that health
and safety can be maintained.
These standards would help in minimising the health hazards of the employees working
in the companies and legal compliance will also protect the company helping them to avoid any
legal troubles (Ling and et.al., 2015).
Currently, Willow Engineering should adopt all the standards set by the Victorian law
regarding workplace safety so that they can leave the unjust methods adopted by them towards
employees and actually provide a safe, secure and healthy environment for its employees which
will help them in avoiding all the legal trouble and also improve their goodwill in the market
which would help the company in successfully establishing itself.
CONCLUSION
The research conducted on the various cases and the laws associated with it can be used
to conclude that there are varieties of laws applicable at the workplace formulated to address
different issues. The first case study involved tort of negligence law and the damages and the
plaintiff and defendant can exercise. The second case involved determination of employee versus
independent contractor and how these two could be identified as separate entities. Lastly, third

case study helped in identification of what are the correct measures that should be adopted for
protecting employees from hazardous activities carried at the workplace.

REFERENCES
Books and journals
Luntz and et.al., 2017. Torts: cases and commentary. LexisNexis Butterworths.
Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.
He, Q., Feng, J.L. and Huang, W.Y., 2016, August. Law of Negligence: Duty of Care, Standard
of Care, and the Notion of Personal Responsibility. In 2016 International Conference on
Management Science and Management Innovation. Atlantis Press.
Howarth and et.al., 2016. Hepple and Matthews' Tort Law: Cases and Materials. Bloomsbury
Publishing.
Keyes, M. and Wilson, T., 2016. The Government’s Proposed Review of Australia’s Contract
Law: An Interim Positive Response. In Codifying Contract Law (pp. 141-174). Routledge.
Stafford, B.E., 2016. Riding the Line between Employee and Independent Contractor in the
Modern Sharing Economy. Wake Forest L. Rev.. 51. p.1223.
Mundele, J.M., 2015. Note-Not Everything That Glitters Is Gold, Misclassification of
Employees: The Blurred Line between Independent Contractors and Employees under the Major
Classification Tests. Suffolk J. Trial & App. Advoc.. 20. p.253.
Roca and et.al., 2017. Green approaches in river engineering-supporting implementation of
Green Infrastructure.
Ling and et.al., 2015. APSIC Guidelines for environmental cleaning and
decontamination. Antimicrobial resistance and infection control, 4(1), p.58.
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