Swinburne University RSK80004 Case Study: Negligence and Liability

This report examines the case of Director of Public Prosecutions v AM Design & Construction Pty Ltd & Aldo Ditonto, focusing on negligence within the construction industry. The assignment addresses the breach of safety and health regulations by AM Design & Construction. It analyzes the application of common law criteria to determine the defendant's guilt, including duty of care, breach of duty, causation, and damages. The report investigates the implications of the Work Health and Safety (WHS) laws in Australia, the role of Aldo Ditonto as a structural engineer, and the penalties imposed. The report concludes with an assessment of the negligence, emphasizing the importance of professional responsibility and the consequences of failing to meet the required standards of care. The analysis considers the concept of recklessness versus negligence in determining the severity of the penalties.

Running head: REPORT 0
Risk and due diligence
MARCH 29, 2019
Student details:

REPORT 1
CASE 1:
Director of public prosecutions v Am design and construction Pty ltd & Aldo Ditonto
Introduction
A.M. Design & Construction Group is one of the premier homebuilder of Louisiana. A.M.
Design & Construction Group is advanced and service-oriented Design or Build contractor,
serving the great Lafayette field for Twenty-two years. In July 2015, A.M. Design &
Construction Group breached the safety and health regulation. In this report, the case of
Director of public prosecutions v Am design and construction Pty ltd & Aldo Ditonto is
discussed and critically examined. This report assesses the fine imposed on A.M. Design &
Construction Group to breach the safety and health regulations. In the following parts,
various Common law criteria are applied to whether the defendant will be the guilty of
negligence (Ross, 2018).
Issue
Following are the issues in the given case study-
1. Whether a defendant will be the guilty of negligence
2. Whether A.M. Design & Construction Group breached the safety and health
regulations
Rule
In Australia, Tort law contains the common law as well as, to the less extent, legislature. The
tort is the civil wrong, other than the breach of contract. Torts may be prosecuted on by
private individual in against of other private individual or state to accurate the forms of
actions or wrong. There are various torts are existed, and they normally originate the legal
status from a common law. Since the court may describe the present tort or even identify the

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new ones by the common law, tort law is considered as boundless and flexible to the new
situations (Cooper, 2018). Negligence is described as a breach of the duty of care that one
person owes to other person that results in other individual getting harm or injury. To prove
the negligence, it is required by the aggrieved party to state that the duty of care was owed
that was not fulfilled and that resulted in the injured people being injured and harmed. Apart
from it, it is required to state that the harm which resulted from a negligence of the other
people, that there was proper foreseeability of these damages taking place and at last, the loss
or an injury was not too remote to cancel the chance of the claims being awarded. Moreover,
in the case where a person is professional or that person market himself as the individual with
the particular skillsets, then in case the client is entitled to the standard of care. In different
terms, it is expected by the client to assist him, not hurt him or others. In a case where
expectations are not fulfilled, that is called professional negligence. The breach may harm the
work caused, however this can also be the clerical oversights. Negligence, in some cases, can
be considered a breach of contract.
As per the criminal Code Act 1995, the people are reckless in relation to the situation if:
1. They are aware of the considerable risks that the circumstances exist or would be
present; and
2. Having regard to the situations known to him, it is inexcusable to have the risks.
3. The ‘people are reckless in relation to the results in case where:
a. They are aware of the substantial risks that the result would take place and,
b. having regard to the situations known to them, this is not justifiable to consider the
risks.
4. The question whether accepting the risk are not justifiable is one of the element.
5. In a case where the recklessness is the factor of fault for a physical element of the crime,
proof of meaning, information, or recklessness would gratify that factor of fault.

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Additionally, The Work Health and Safety Law (WHS laws) in Australia (Review) has given
the complete tick of a permission for the operations or functions of the safety laws, along
with the recommendation’s series to help to deliver the clarity, reliability and proper
operation or function and implementation of the law. It is required by the professional to
comply with The Occupational Health and Safety Act 2004 for the better security
the health, protection, and well-being of the workers and other person at workplace (Fox,
2017). The professional should comply with the provisions of this Act, to end, at the sources,
risk to health, security, or well-being of the workers and other people at workplace (Ben-
Shahar and Porat, 2016).
In the addition of this, the contractor is liable for inadequately secured work structure. The
judgement given by the magistrate court of Victoria has state the requirement for employer to
look for engineering solutions while the risks state such the control is required. In case of
Worksafe Victoria v DWI Pty Ltd (2019), DWI Pty Ltd (the Company), the facts
ineffectively appealed against the principle for failure of hording they had connected that
harmed people in year 2015. In March 2015, an entity, the producer and installer of
hoardings, installed hoardings at the shopping mall in Victoria, assigning the hoardings to the
partition at opposite of this site. Though, to permit more room for a work, the hoarding later
had to be stimulated further out from sites. The hoarding was later moved out and, as the
bulkhead was being demolished, the Company instead attached the hoarding to the ceiling
with a wooden brace. No engineering control was applied to the deal with a wind shaft and a
hoarding later misshapen inward in a shopping mall, harming public people and causing the
damages to display and more shop (Coenen, et. al, 2017).
In this case, it was held by the court that it is suggested by the expert report that the risks
must be in control by the engineering solution, with the proper documentation that properly
stated and responsible for, the particular of hoardings and the related airstream loading. The

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company was found as guilty. It was offended by Magistrate Court of Victoria. The
Magistrate Court of Victoria imposed the fine of sixty thousand dollars over the corporation.
The Victorian Magistrate Court gave the order to make the payment of cost of eighteen
thousand two hundred seventeen. The appeal was filed by the company. However, this appeal
was dismissed by the court. In this way, it is required that the employer are required to be
attentive to handle the situation and manage the possible impact of change or new
development to the process of how work structure is installed to make sure this does not
enhance the risks of harm to other field of sites. It is required that employer must also make
sure that the workers consider all possible paths of risks, and the appropriateness of the work
to endure this risk (McInnes, et. al, 2017).
Application
In the case of an issue of what constitutes ‘reckless behaviour’, as different from sheer
‘negligence’, was the significant element in decreasing the penalties levied on the
organisational engineering corporation and the sole director. Aldo DiTonto was the structural
engineer of AM Design & Construction Pty Ltd. Aldo DiTonto was also the sole owner and
sole secretory of the Company (Brown, 2016). Aldo DiTonto made the structural drawing for
the basement mine work for the combined residential development and commercial
development. Aldo DiTonto had failed to involve in the structural drawing for a development
of the simultaneous connection of a site-holding scheme. On 13 July or 14 July 2015, the part
of the mine distorted in southeast corners of developed site. Further, at the night of 15 July
2015, the one more downfall or breakdown took place. It was advised by the police that
residents of front townhouse should evacuated on the immediate basis. The company as well
as Aldo DiTonto appealed guilty to charges for violating the health and safety law, being the
failure of this corporation to make sure the safety of other person. Aldo DiTonto was charged
as being the officer of corporation to whom infringement or violation was attributable to the

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failure to have proper care. The company A.M. Design & Construction Group and engineer
Aldo Ditonto were not complied with the Work Health and Safety Law (WHS laws) in
Australia (Review).
It was noted by sentencing judge that there was the serious risk that people in a locality of the
excavation mine can be seriously harmed or killed by being overcame in the failure of the pit,
or falling in the mine. The penalty of 380,000 $ was levied on the corporation and the penalty
of 100,000 $ imposed on Aldo DiTonto (Tonso, et. al, 2016). In this way, the total penalty of
4,80,000 $ was levied on the company and Aldo Ditonto. The Aldo Ditonto and company
have made the appealed the penalties on a ground that they were noticeably unnecessary. In
this way, the company and Aldo DiTonto were decreased by half (Zimmerman, 2018).
In this case, the company and Aldo DiTonto had been negligent as per the rule of negligence
mentioned above (Campbell, 2016). In this case, the duty of care was not fulfilled by Aldo
DiTonto and company, and that resulted in the injured people being harmed. In this matter,
the conduct did not involve the element of recklessness (Resnik, et.al, 2017). Aldo DiTonto
did not comply with provisions of The Occupational Health and Safety Act 2004. In this case,
an argument can be made that the penalties levied in this case, specifically while considered
aggregately, were completely out of the range correctly open to a sentencing judge. For these
complainants the offending, severe as this unquestionably was, did not worth the penalties of
the extent. One point can be made that guilt and responsibilities of Aldo DiTonto were to be
evaluated on a ground that Aldo DiTonto as a minimum did the best to make sure that the
possibly close by the pit for that structural drawings were made, were not discovered to the
risks. In this context, Aldo DiTonto was negligent, instead of reckless. Furthermore, when
regard is had to present practices of sentencing for the crimes of this category, this can
willingly be seen that these penalties appear to be out of kilter (Furci and Sunindijo, 2018).

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Conclusion
As per the above analysis, it can be concluded that the Professional negligence is a failure of
the practised person to have appropriate care while functioning with the clients.
Fundamentally, the client expects professional to see how to keep the client away from bodily
harm, commercial harm, and mental harm in respect of the professional relations. In case
where the professional falls short, then he can be charged of violating the obligation of care.
It is a duty of professional to perform properly for the circumstances. Though, the duty of
care can weigh the little substantial in the life of professional (Hanley and O'Rourke, 2016).
This is partly because the relations with the clients normally make the duties clear in the
courts. The professional is the person with the proper knowledge and understanding. In this
way, it is required by the client to suppose the professional level of services from the
professionals. However, the other apprehension is the image. The persons take the services
from the professional on the basis of belief that he may get the job done. The professional
negligence lawsuit may damage the good name and the businesses (Boister, 2018). This is
smart to ignore them. In the given case of Director of public prosecutions v Am design and
construction Pty ltd & Aldo Ditonto, Aldo DiTonto was negligent because he did not fulfil
the duty of care (Friend and Kohn, 2018). The conduct of Aldo DiTonto involves the higher
risk that the physical factor presents or would present. This conduct merits the criminal
punishment for the crime. Aldo DiTonto violated the provisions of Work Health and Safety
Law (WHS laws).

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REPORT 8
References
Ben-Shahar, O. and Porat, A. (2016) Personalizing Negligence Law. NYUL Rev., 91, p.627.
Boister, N. (2018) An introduction to transnational criminal law. Oxford University Press.
Brown, A.H. (2016) Recklessness: a billion dollar question. Loyola Maritime Law
Journal, 15(2), pp.279-314.
Campbell, T. (2016) The obligations and risks imposed on directors by workplace
laws. Governance Directions, 68(9), p.530.
Coenen, P., Gilson, N., Healy, G.N., Dunstan, D.W. and Straker, L.M. (2017) A qualitative
review of existing national and international occupational safety and health policies relating
to occupational sedentary behaviour. Applied ergonomics, 60, pp.320-333.
Cooper, C. (2018) Industrial Manslaughter Laws. Oxford: Oxford University press
Fox, D. (2017) Reproductive Negligence. Colum. L. Rev., 117, p.149.
Friend, M. A. and Kohn, J.P. (2018) Fundamentals of occupational safety and health. USA:
Rowman & Littlefield.
Furci, J. and Sunindijo, R.Y. (2018) Impacts of the WHS Act 2011 on safety management in
small and medium construction companies. International Journal of Construction
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Hanley, G.M. and O'Rourke, A. (2016) The race without a finishing line: legislative means
for confronting bullying in the Australian workplace. Asia Pacific Journal of Human
Resources, 54(3), pp.352-368.

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McInnes, J.A., MacFarlane, E.M., Sim, M.R. and Smith, P. (2017) Working in hot weather: a
review of policies and guidelines to minimise the risk of harm to Australian workers. Injury
prevention, 23(5), pp.334-339.
Resnik, D.B., Smith, E.M., Chen, S.H. and Goller, C. (2017) What is recklessness in
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Ross, A. (2018) Workplace law: Recklessness leads to landmark WHS prosecution $900 K
fine for NSW category one offence. Proctor, The, 38(5), p.36.
Tonso, M.A., Prematunga, R.K., Norris, S.J., Williams, L., Sands, N. and Elsom, S.J. (2016)
Workplace violence in mental health: A Victorian mental health workforce
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Zimmerman, M.J. (2018) Recklessness, Willful Ignorance, and Exculpation. Criminal Law
and Philosophy, 12(2), pp.327-339.