Foundation Law Analysis - Assignment Example

? Foundation Law No: Roll No: Foundation Law Under the definition of English law, injury inflicted upon a body, mind or emotions of a person other than the property falls under the ambit of Personal Injury. The term of personal injury is frequently used in the law suits filed under the law of tort. The law suit filed under the law of tort indicates that the cause of action attributes to negligence or carelessness of another person. Personal injury cases can be filed in a competent court of law under the garb of defamation law or law of tort as the case may be1. The compensation claimed in major cases are a) road accidents b) accidents at work place c) accidents due to ill equipped / ill planned safety and security measures d) gadget deficient to meet accident eventualities e) accidents at home f) accidents during holidays. In order to broaden the base of personal injury, we may include medical and dental injuries under the purview of personal injury. The chronic diseases found in the work force at industrial work places are termed as industrial diseases2. In case of non-responsible attitude of one party towards another party, if proved, is a ripe case to claim monetary compensation from the party at fault through the competent court of law. In western countries claim of compensation that relates to personal injury is a complex issue. Usually the solicitor charge in terms of percentage according to the volume of compensation claim at the end of the case provided it is awarded. Since the compensation under medical malpractices is rampant in the western countries, therefore it is necessary for a claimant to engage a counsel of repute to plead his or her case in a competent court of law3. In the given scenario, Matthew, who is the warehouse operator is the claimant while the defendant is the pharmaceutical company, which has to follow certain employment rules and regulations under employment law. English employment law is applicable here as it is the employer’s responsibility to handle situations related to the employees at the workplaces. The English law does not provide an indefinite period of time to the claimant of compensation under personal injury. In the English territorial jurisdiction, an individual can claim compensation within a period of three years from the date of its occurrence. Therefore, under the law in vogue, court proceedings should be commenced within the given time limit. Otherwise the claimant might lose the opportunity to seek relief from the court of competent jurisdiction. The only exception is that if a person met with an accident under the age of 18 years, he or she may have the opportunity to claim compensation before the maturity of 21 years through court proceedings. The court has the discretion to waive the time limit if convinced. Another remedy available to ignorant person is that if he or she comes to know that he or she may claim compensation of personal injury under the law. In that situation claimant may file compensation within a period of three years which starts from when he or she comes to know that they are entitled for compensation under personal injury4. The key element is determining the veracity of negligence of the coworker that caused compensation to the claimant. No doubt that the claimant has suffered in both ways a) physically and b) economically. Therefore, both losses (disability of Mathew to perform duty / inability to pay off liabilities) are to be taken into consideration while deciding the case of compensation. It was held by the competent court of law in the case of Lunney and Oliphant (2008) that law of tort merits restoration of victim to its original physical status prior to the incident. It is the court to decide the amount of compensation keeping in mind the level of damages that occurred due to incident / accident. In the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, it was held that the defendant can be liable for foreseeable consequences. Further, contributory element should also be taken into account. Moreover, Mathew contributed in his personal injuries by not wearing the helmet. The claim amount of compensation depends on the severity of injury. However, severe injuries in which an individual got his or her bones broken, imputation of limbs, in brain haemorrhage may claim highest degree of compensation taking into account the scope of pain and suffering that he or she met5. Under the law an affected individual apart from normal compensation under personal injuries may also claim sizeable compensation provided the severity of injuries deprived him from doing anything for the rest of the life. Take the example of a cricketer or a hockey player who got his wrist or knee fractured to that level which prevents him from participating any more in the game, may claim compensation over and above the normal claim of compensation. In legal term that sort of claim may be termed as “loss of amenity”. The claim against loss of amenity attributes to miserable pain and agony. In similar cases where an individual becomes disabled from doing any job in near future or in remote future may claim compensation over and above the normal award. Under the law it is categorized as loss of congenial employment6. It is commonly observed that the ratio of accidents at work place is more than the ratio of road accidents. In few cases, we found that affected worker failed to lodge claim for compensation with the fear that they have to face the consequences at the hands of the employer if they bring the firm to the task under the law. The general view is that the mentioned fear is baseless since all the employees have the equal opportunity to claim compensation under the employer’s liability insurance scheme. He or she may file suit in the competent court of law as and when sensing any sort of discrimination from the employer in the respect7. It is incumbent upon the injured to report the incident of road accident or accidents at work place to the competent authority in order to make a point of reference for the claim of compensation in future. No matter how the accident is bigger or minor. It should always be recorded with the concerned officials. The law requires for the companies who have 10 head counts to enrol themselves with an appropriate authority under the employer’s liability insurance that enables employees to claim compensation in case of any accident that falls under the category of personal injury. However, under the law of the land more serious injuries can be lodged with the Centre of Health and Safety Executive Scheme8. Under the UK employment law, if an injured person absent from his or her work due to his or her injuries can have the statutory sick pay that spreads up to 28 weeks or less as the case may be. It is the responsibility of the employer to ensure that safety, security and health cover plan of an employee is in place. If an employer failed to perform the cited responsibilities, he or she may face the wrath of criminal and civil prosecution. Further, the employee may have the sound ground to claim compensation under the personal injury (ies)9. Compensation claim can be lodged provided it relates to negligence of employer in terms of a) in secure premise to work b) absence of written working procedure c) gadgets placed are not in good working condition and supervision d) inefficient staff to man the working environment10. The employer should ensure that the working condition for the employees are ideal and the equipment in his or her use free of defects to accomplish the assigned task as per the requirement of the employer. The government officials should ensure that whether the employer provided their worker good environment along with efficient tools that needed for doing the job. Let us take the example of an employee who has to lift the items. In the mentioned scenario, it is the responsibility of the employer and the employee to comply with the rules, regulations and procedures so as to avoid any untoward or ugly incident come to surface11. The cleanliness at work place or in the office is necessary to provide healthy environment to the employee of an organisation to discharge their duties efficiently. If the floor of the work place left with wet floor and the place presenting picture of dumping yard of files and cables then the efficiency of the employee is questionable. Here not only the employers but the employees are equally responsible of making the workplace safe, secure and healthy12. In case of severe or serious injuries the employer is responsible for reporting the incident to the concerned official. That sort of incidents consist of a) death b) chronic disease c) grievous injuries d) leakage of chemical e) leakage of gas from gas installation f) any other injury or injuries that kept an employee away from the job for more than 3 days13. The best practice to accident at work place is to strictly follow the safety and security measures given by the employer. As far as the responsibility of the employer is concerned to eliminate or reduce the risk at work place, the employer has to fulfil its legal obligation so as avoid action against him under criminal or civil law. The employer cannot be absolved from appointing first aiders and placement of electronic installations to cope with the worst situation at work place14. If a worker or staff member felt that the injuries inflicted upon him are due to negligence or carelessness of another worker or staff member, he or she can sue the party at fault to claim compensation in line with the severity of the injuries. It would be in the fitness of things if aggrieved party engage a solicitor who has the competency to seek compensation from the competent jurisdiction in favour of his or her client. However, limitation period for such claim is not more than 3 years. However, in exceptional cases, as identified above, this period can be waived by the judge of the competent court15. Conclusion If we examine the case of Matthew, a warehouse operator of a pharmaceutical company namely Medx Limited, we come to the conclusion that the said gentleman can have the benefit on two counts a) “Employer’s Liability Insurance Scheme” and “Statutory Sick Pay” under the law since the accident was occurred due to fault of a co-worker who did not stack the pallets on a wooden plank properly. It is undeniable fact that Mathew contributed to his personal injuries for not wearing the safety helmet at the time of incident. The situation of Matthew is solvable under employment law and he can claim for personal injury as the employers are responsible for paying for any damages of the employees injured at the workplace. The claim will be against the employer and Matthew is the claimant while the employer is the defendant. The claim will be on the ground of employer’s accountability in terms of provision of due facilities to the employees in case of personal injury at work. Word Count: 1832. Bibliography A Davies (ed), Workplace Law Handbook 2011: Employment Law and Human Resources, Workplace Law Group, London, 2011. Cathy J Okrent, Torts and Personal Injury Law, Cengage Learning, New York, 2009. FL Memo Ltd, Employment 2006: law and practice, human resources, FL Memo, London, 2006. J Holland & S Burnett, Employment Law: Legal Practice Course Guides, Oxford University Press, Oxford, 2008. S Taylor & A Emir, Employment Law: An Introduction, Oxford University Press, Oxford, 2009. V Harpwood, Medicine, Malpractice, Misapprehensions, Routledge, London, 2008. Read More