Assessment tutorial questions Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
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    3
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    1721

Actions in Negligence and Employment Law

Abstract: This paper analyses two case scenarios. The first is concerned with how actions of negligence can successively be brought by claimants for an injury. The second is concerned with employment law, and the different elements of an employee and an independent contractor.

Key Concepts: Negligence, action in negligence, claims in negligence, independent contractor, employment law

Q. Negligence

a) Discuss (using case law) if Mary and Peter have an action in negligence. Against who? What is the likely result? (15 marks)

In the first case scenario, Mary and her husband Peter are guests of a resort on Kangaroo Island. The two are keen to take an excursion to “Little Sahara.” However, the driver assigned to their trip has little experience driving on sand dunes. During the trip, the jeep rolls and Mary and Peter suffer injuries. The two look to apply claims in negligence against the resort.

Under the Australian Law, an action in negligence will be successful when four elements are satisfied. First, it must be established whether the Maxwell, who is the manager, and the resort owed both Peter and Mary a duty of care. Second it must be established whether Maxwell or the resort breached the duty of care, or whether they lived up to the standard of care that a resort must offer its customers. Third, it must be established whether Peter and Mary really suffered an injury. Lastly, there must be a link between the injury and the breach of duty of care. Towards this end, it is critical to observe that elements such as duty of care, breach of duty of care, damage and causation must be established1.

Mary and Peter can bring the action in negligence against the resort management. However, it must be established whether Peter and Mary were owed duty of care. A similar scenario was noted in a landmark ruling of the case Donoghue v Stevenson2, where the court held that the person to whom a duty of care had to be established. In brief, the law dictates that a person has to take reasonable care to avoid omission or actions that can cause injury to another. In the case scenario, since the two were customers of the resort, the resort had to take utmost care for their safety during the excursion3. In this context, a duty of care can be established. In addition, the defendant was in dereliction of the duty of care by appointing an inexperienced driver to take the clients for an excursion. In point of fact, the holiday resort does not have a duty of insurance against injuries or damages to the clients, rather, it has a duty to take reasonable care to avoid any injury or harm that the clients might face while under their care. Such a scenario was demonstrated in the case Richards v. State of Victoria4. In brief, the holiday resort breached the duty of care. It is further clear that both Mary and Peter were injured during the excursion. The damage is in close proximity to the law as it was a foreseeable consequence of the hotel management’s actions. In this case, the element of damage also exists. It follows therefore that the resort’s management can be held liable for tortuous claims5. Indeed, negligence tort law bears ground in cases where a person suffers personal injuries resulting from the failure of another person to take reasonable care resulting to injuries of another person6.

To conclude, four elements of negligence in claim can be established in the case scenario. Therefore, Peter and Mary can successfully apply for claims in negligence against the hotel management (Maxwell). The result is that chances of winning a compensation for the injuries are highly likely.

Q. Employment Law

In the case scenario, Pam who works at a bakery as an independent contractor resigns her role as a baker after two months. Pam decides to start her own bakery nearby using a recipe for cupcakes that belongs to the bakery. The contract had stated that she should not work “as a baker in the Adelaide metro region for next 5 years upon the ending of this contract”.

  1. Will you be able to stop Pam from starting her new bakery? (8 marks)

Pam can be stopped from starting her own bakery based on two arguments. First, since the contract had expressly stated that Pam would not work as a baker in the Adelaide metro region “for next 5 years upon the ending of this contract,” it is possible to bring a suit against Pam for violation of the express terms of contract. In this case, an injunction to stop Pam from starting the bakery can be sought as a remedy7. Additionally, since Pam plans to start a bakery using the bakery’s secret recipe for cupcakes, it is possible to claim that she violated the “implied duties of employees,” which states that she should be faithful to the employer’s best interest during and after termination of contract. In this case, Pam should maintain confidentiality of the recipe without the employer’s consent. Under the Australian law, even though the principal or employer has limited or remote control over an independent contractor, in situations where the contract expressly states certain directions that should be followed, violating them would surmount to breach of contract. The Australian law recognizes an employment or independent contract as an agreement law that will enforce as it contains elements of exchange and agreement. In the context where an express contract defines the terms of engagement, the law in various jurisdictions demands that the workers concerned be treated as employees. For instance, in New South Wales, schedule 1 of the Industrial Relations Act 1996 (NSW) categorizes persons to be deemed as employees for the purposes of the Act. In addition, in Queensland, section 275 of the Industrial Relations Act 1999 (Qld) permits the State’s Industrial Relations Commission the mandate to declare ‘a class of persons who perform work in an industry under a contract for services’ to be employees8.’

  1. Explain the type of evidence you would seek to decide if Pam is an employee or independent contractor. (5 marks)

In determining whether Pam is an employee of an independent contractor, several types of evidence can be examined. Independent Contractors Act 2006 (Cth) s 5(1) recognizes that work may be exchanges in return for remuneration under a contract of employment or in situations where the provider of service is recognized as an independent contractor. First, the relationship is determined by the type of contract that exists between them. In the present scenario, the contract specifies that Pam works as an independent contractor. In archetypical situations however, several elements can be considered in determining an independent contractor. This include whether the payment is done after completion of task. Second, whether Pam bears liability for her work and insurance. Third, whether she sets her own work hours. The degree to which she is integrated into the alleged employer’s business, as was demonstrated in the case Stevens v Brodribb Sawmilling Co Pty Ltd9 and Hollis v Vabu Pty Ltd10. Next, whether she has no paid leave and lastly, whether she uses her own tools and equipment.

  1. Why is it important to know if someone is an employee or an independent contractor? (2 marks)

The contract of employment is a foundation upon which the terms and conditions are established. In this case, it can be used to determine whether certain awards, employment-related legislations and enterprise agreements apply to an individual. In which case, the law will provide different advantages or protections to an employee as owed by an employer that does not apply to an independent contractor11.

To conclude, Pam can be stopped from starting her own bakery at close proximity to the bakery where she had previously worked. Her contract expressly stated she would not work as a baker in the Adelaide metro region “for next 5 years upon the ending of this contract.”

References

Books and Articles

Gibson, A & Fraser, D 2013, Business Law, Sydney, Pearson Education Australia, Chapter 8, Chapter 9 pp 199—216, Chapters 11

Harpwood, V 2000, Principles of Tort Law, Cavendish Publishers: Newport

Kaufman, V 2010, » Protection of Independent Contractors Under Workchoices And The Fair Work Act: Improvement Or Continuity?» University of Melbourne: Melbourne, viewed 14 August 2012, http://www.law.unimelb.edu.au/files/dmfile/Student_Working_Paper_21.pdf

Newnham, H. (2000). «When is a teacher or school liable in negligence?» Australian Journal of Teacher Education, 25(1), pp.1-55

Tham, J 2004, The Scope of Australian Labour Law and the Regulatory Challenges Posed by Self and Casual Employment, viewed 14 August 2013, http://www.jil.go.jp/english/events_and_information/documents/clls04_tham2.pdf

Yule, J 2008 “Negligent investigation by police : can a duty of care be found using the existing negligence principles in Australia?” Journal of Australasian Law Teachers Association, 1. pp. 379-389.

Yule, J 2011, Defences In Medical Negligence: To What Extent Has Tort Law reform In Australia Limited The Liability Of Health Professionals?. Viewed 14 August 2013 <http://www.alta.edu.au/resources/PDFs/JALTA/2011/Defences%20in%20Medical%20Negligence_Yule.pdf>

Case Laws

Donoghue v Stevenson [1932] AC 562

Hollis v Vabu Pty Ltd (2001) 75 ALJR 1356

Richards v. State of Victoria (1969) VR 136 at 138

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

1 Gibson, A & Fraser, D 2013, Business Law, Sydney, Pearson Education Australia, Chapter 8, Chapter 9 pp 199—216, Chapters 11

2 Donoghue v Stevenson [1932] AC 562

3 Harpwood, V 2000, Principles of Tort Law, Cavendish Publishers: Newport

4
Richards v. State of Victoria (1969) VR 136 at 138

5 Newnham, H. (2000). «When is a teacher or school liable in negligence?» Australian Journal of Teacher Education, 25(1), pp.1-55

6 Yule, J 2011, Defences In Medical Negligence: To What Extent Has Tort Law reform In Australia Limited The Liability Of Health Professionals?. Viewed 14 August 2013 <http://www.alta.edu.au/resources/PDFs/JALTA/2011/Defences%20in%20Medical%20Negligence_Yule.pdf>

7 Kaufman, V 2010, » Protection of Independent Contractors Under Workchoices And The Fair Work Act: Improvement Or Continuity?» University of Melbourne: Melbourne, viewed 14 August 2012, http://www.law.unimelb.edu.au/files/dmfile/Student_Working_Paper_21.pdf

8 Kaufman, V 2010, » Protection of Independent Contractors Under Workchoices And The Fair Work Act: Improvement Or Continuity?» University of Melbourne: Melbourne, viewed 14 August 2012, http://www.law.unimelb.edu.au/files/dmfile/Student_Working_Paper_21.pdf

9
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

10
Hollis v Vabu Pty Ltd (2001) 75 ALJR 1356

11 Gibson A and Fraser D 2011, Business Law, 5th Edition, Sydney, Pearson Education Australia, Chapter 35