University Law Case Study Analysis: Negligence, Employment, and OHS

This case study analysis examines three distinct legal scenarios. The first part analyzes a negligence tort case, focusing on the duty of care owed by a shopping center to its customers, the breach of that duty, and potential damages. It also considers the defense of contributory negligence. The second part addresses employment law, specifically the determination of employee status versus independent contractor, considering factors such as control, payment, and provision of tools. The third part delves into occupational health and safety (OHS) regulations, outlining the responsibilities of employers under the OHS Act 2004 and the Occupational Health and Safety Regulations 2017 in Victoria, with a focus on hazard identification, risk assessment, and control, as well as advice for a company regarding workplace safety and employee health concerns related to hazardous substances.

Running head: CASE STUDY ANALYSIS
CASE STUDY ANALYSIS
Name of the Student
Name of the University
Authors Note

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CASE STUDY ANALYSIS
Answer 1:
a) Issue:
The issue here is whether Leon can take legal action for the negligence tort
against the Elorado shopping centre and what type of damages he will be entitled to
get.
Relevant Rules of law:
The law of negligence can be established by taking reference of Donoghue v
Stevenson [1932] AC 562. As per this case, if the plaintiff wants to succeed in his
claim for negligence, he must prove the following points; that the accused has a duty
to take due care, that the accused has breached such duty, that personal injury or
damage has occurred due such breach of duty and that the damage is proximate
and not very remote.
Duty of care
Duty to take care refers to the situation and relation that have been
recognised by law as a legal duty of taking care. If the defendant failed to take
reasonable care, the plaintiff who has incurred loss or suffered injury can claim for
damages. Hence it is very important for the aggrieved party to prove that the
defendant has a duty to take due care towards him. The presence of such duty in
case of personal injury was decided by using the neighbour test given by Lord Atkin
in the case of Donoghue v Stevenson. The main criteria needed to be proved in
this test are as follows:
 The harm has to be foreseen reasonably.
 Presence of proximate relation.

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CASE STUDY ANALYSIS
The harm or injury must be such that it can be foreseen by a
reasonable person. It has been entrenched in the case of Grant v Australian
Knitting Mills [1935] UKPC 62. Moreover, there must be a proximate
connection between the duty and the effect as seen in the case of Annetts v
Australian Stations Pty Ltd [2002] HCA 35. However, in present days,
Caparo test is done. In this test, three criteria are to be proved by the
claimant which are as follows; that the harm was reasonably foreseen,
presence of proximate relation and it is fair, reasonable and justified to impose
such duty on the defendant. It was construed in the case of Caparo
Industries Plc v Dickman [1990] 2 AC 605.
Breach of duty:
In order to prove that the accused has breached his duty, objective test
is done as decided in the case of McHale v Watson [1966] HCA 13 (7 March
1966), High Court (Australia). For deciding in this test, courts sift and weigh
four factors mainly like the likelihood of harm, seriousness involved in the
harm, preventive cost and usefulness of conduct of defendant.
Causation:
Causation is usually determined by the application of the ‘but for’ test
as given in March v Stramare (E & MH) Pty Ltd [1991] HCA 12, (1991) 171
CLR 506, High Court (Australia). In this test, the court will consider that ‘but
for’ the act of the defendant will the claimant suffer such injury or loss. It was
given in the section 5 of Civil Liability Act 2005 (NSW).
Remoteness for damage:

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CASE STUDY ANALYSIS
Here it is identified whether the defendant can be made liable for the
loss only that can be foreseen reasonably. It was entrenched in the case of
The Wagon Mound no 1 [1961] AC 388.
Application:
From the facts of the case, it is seen that the claimant Leon while shopping
inside a shopping centre he slipped on the granite floor in the foyer and sustained
injury. It was a raining and thus it was wet. By referring to the rules above, it is seen
that the shopping centre had a duty to take care of its customers. One of such duty
was to keep the floor dry such that the customers do not slip on it. The shopping
centre failed to perform its duty and thus the foyer was wet. Due to such breach, the
plaintiff got injured. It was reasonably foreseeable that anyone can slip on the granite
floor due to excess moisture in rainy day. Hence, it must be extra cautious to clean
the foyer and keep it dry.
Conclusion:
Thus it can be concluded that Leon can take legal action for the negligence
against Elorado and he will be entitled to monetary damages from it.
b) Issue:
Whether Elorado can avail any defence against Leon?
Rules:
One of the defences available to the defendant in negligence tort is called
contributory negligence. The burden of proof is on the defendant and in order to avail
this defence, he has to prove that the claimant did not take adequate care for his
safety in such situation as given in Pennington v Norris [1956] HCA 26 and such
failure has contributed to the causation of the loss incurred. This defence is
entrenched in Civil Liability Act 2002 (NSW).

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CASE STUDY ANALYSIS
Application:
From the facts of the case, it is observed that it was rainy day and the foyer
was made of polished granite which is already slippery in nature. This was known to
Leon and he must be extra cautious and careful while stepping inside the centre.
Conclusion:
Thus, Elorado centre can raise this defence against Leon.
Answer 2:
a) Issue:
whether Adam can be regarded as an employee?
Rules:
In order to identify whether a person is an independent contractor or a
employee, several factors need to be considered. Firstly, it has to be decided
whether the company has any right to control on how the worker works and what he
works, whether company has control over the payment and reimbursement of the
worker, whether the company gives any tools or supplies to the worker. Other factors
to be considered are whether there is a contract between the two and whether the
worker is liable to any pension, insurance plan or vacation pay.
Application:
As per the facts of the case, Adam was supposed to accept the work given to
him and has to work as per company guidelines. Moreover, he has to work in fixed
hours and drive a set route. Hence he was under control of the company. Hence he
deemed to be an employee as per Walker vs. Crystal Palace Football Club [1910]
1 KB 87. Moreover, he wore uniform with company logo. All this showed that he is
regarded as an employee.
Conclusion:

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CASE STUDY ANALYSIS
Thus, Adam can be denoted as an employee.
b) The courts usually consider few tests to determine whether an individual has
the employee status or not. These are the control tests, multiple factor test,
integration test and the mutual obligation test. In the 1st test, the controlling level of
the employer on his employees is determined as given in Yewens v Noake (1881) 6
QBD 530. Integration test considers how far the employee is involved into the
business of the employee. In multifactor test, several factors like working hours, type
of wages, appointment and termination method and other factors are taken into
account. Finally in the mutual obligation test, it is seen whether the employer and
employees are under mutual responsibilities to each other.
Answer 3:
a) Most of the workplaces in Victoria including Willow engineering must follow
the provisions laid down in the Occupational Health and Safety Act 2004. It must
protect the health, safety and betterment of the employees and other people
working in the workplace. The company also has the duty to monitor as well as
enforce compliances with the OHS Act and its regulations. It must also make
recommendations to the Minister regarding the Act, its regulations and codes of
compliance. The Occupational Health and Safety Regulations 2017 provide the
ways to fulfil the duties and responsibilities and other methods that support the said
Act. As per the regulation, the Willow Engineering must satisfy the criteria of safe
operation and handling of the hazardous facilities. It must give training for work
involving high risks. It must also include identification of any hazard, assessment of
risk and control of risk.
As per the Regulations, the organization must also address factors like
licence issue for purpose of erecting any scaffolds, operating any machines and

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CASE STUDY ANALYSIS
other work that is potentially dangerous. Since, the Occupational Health and
Safety Regulations 2017 are enforceable legally, hence, the employers can be
made liable to meet the duties. The Occupational Health and Safety Act 2004
supported by the Occupational Health and Safety Regulations 2017 makes it
compulsory for the employers to be identifying hazards which include manual
handling, noise, plant, prevention of falls, asbestos, lead and other hazardous
substances, assessing risks and controlling risks. As per the Occupational Health
and Safety Act 2004 the employers, employees and other people related to the
workplace have certain responsibilities. These responsibilities can be seen to be
known as ‘duties of care’ and are applicable ‘as far as reasonably practicable’. These
reasonably practicable measures are taken with consideration of the severity and
likelihood of any harm or injury that can be seen to be occurring, extent of the
knowledge of reducing, controlling or removing any hazard and suitability, availability
and cost of the safeguards. These regulations are incorporated to protect workers
from any kind of occupational disease and injuries and are enforceable towards
every workplace in Victoria. Since these legislations and regulations are legally
enforceable the employers would be liable for prosecution for the failure of fulfilling
the obligations (Worksafe, 2019).
b) Advice to Willow Engineering:
In the current case it was seen that Bret had developed severe lung infection
due to fine particles of plastic that escaped from machine that is being operated at
the ‘Willow Engineering’. When confronted, the boss did not trust him and further
refused to advice the insurer or other regulatory authority. He is further warned that if
he opens his mouth in this regard he would be terminated.

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CASE STUDY ANALYSIS
To stop the spreading of infection further in later days and for avoiding any
hazards in the operations, the company needs to follow certain measures according
to Occupational Health and Safety Act 2004 along with Occupational Health and
Safety Regulations 2017. These measures are:
1. For stopping the infection from happening Willow Engineering should be -
 Looking in a systematic way for the problem prevailing and necessary
steps that can be taken for the prevention of risks
 Assessing and determining the hazardous substances in use
 Conducting a walk through survey of the workplace
 Assessment of the training level and information of the workplace
 Ensuring work practices that would eliminate the risks
 Protecting the health factors, safety and betterment of the
employees, workers and other people working in the working place
 Monitor as well as enforce compliances with the OHS Act and its
regulations
 Provide training for work involving high risks
 Issuing Licence for the purpose of erecting any scaffolds, operating
any machines and other work that is potentially dangerous
 Providing with costs of injury and worker’s compensations
 Ensuring to meet the legal obligations and responsibilities towards the
employees
 Providing with insurance for the employees
 Ensure that employees are in compliance with the safety and health
instructions

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CASE STUDY ANALYSIS
2. For the avoiding any serious hazards in the operations of the company
needs to follow the said Act 2004 along with Occupational Health and
Safety Regulations 2017. The provisions are:
 It must satisfy the criteria of safe operation and handling of the
hazardous facilities
 Identifying hazards which include manual handling, noise, plant,
prevention of falls, asbestos, lead and other hazardous substances
 Examining maintenance and cleaning procedure
 Assessment of risk and control of risk
 Make assessments to establish whether people are at risk from the
exposure
 Ensuring work practices that would eliminate the risks
 Looking in a systematic way for the problem prevailing and necessary
steps that can be taken for the prevention of risks
 Assessing and determining the hazardous substances in use
 Conducting a walk through survey of the workplace
 Ensuring work practices that would eliminate the risks
 Provide training for work involving high risks
 Issuing Licence for the purpose of erecting any scaffolds, operating any
machines and other work that is potentially dangerous
 Providing with safe operations for the facilities and mines that have
major hazard risks (World Health Organization, 2019).

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CASE STUDY ANALYSIS
References:
Annetts v Australian Stations Pty Ltd [2002] HCA 35
Caparo Industries Plc v Dickman [1990] 2 AC 605
Civil Liability Act 2002 (NSW)
Civil Liability Act 2005 (NSW)
Donoghue v Stevenson [1932] AC 562
Grant v Australian Knitting Mills [1935] UKPC 62
March v Stramare (E & MH) Pty Ltd [1991] HCA 12, (1991) 171 CLR 506, High Court
(Australia)
McHale v Watson [1966] HCA 13 (7 March 1966), High Court (Australia)
Occupational Health and Safety Act 2004
Occupational Health and Safety Regulations 2017
Pennington v Norris [1956] HCA 26
The Wagon Mound no 1 [1961] AC 388
Walker vs. Crystal Palace Football Club [1910] 1 KB 87
Worksafe. (2019). Occupational Health and Safety Act and Regulations - WorkSafe.
Retrieved from https://www.worksafe.vic.gov.au/occupational-health-and-safety-act-
and-regulations
World Health Organization. (2019). Hazard prevention and control in the work environment:
Airborne dust (WHO, 1999). Retrieved from
https://www.who.int/occupational_health/publications/airdust/en

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CASE STUDY ANALYSIS
Yewens v Noake (1881) 6 QBD 530