Interpreting and Applying Legislation - Assignment Example

Task interpreting and applying legislation Part A answers Question1. The health and safety in employmentact 1992 section 6 highlights the employer’s duties to employees. The practicable steps include ensuring a safety-working environment. The employer should outline procedures that will help in dealing with emergencies in the work place. Additionally the plant used should be designed in a way that minimizes risk of exposure to the employees. The employers should also make sure that workers are safe by employing necessary procedures in accordance to the health and safety employment act. The hazards occur due to careless disposals and conduct in and around their working places. The employees’ health and safety should be a priority for every employee in the work place (Hubbard, Thomas & Varnham, 2012). Question2. The health and safety act section 19B requires employers to provide workers with necessary tools to improve their safety standards in the work place. The employees’ should not oppose the employer’s measures to provide a secure work environment. The employer has a responsibility of ensuring that the measures do not infringe the rights of their employees. Question3. A hazard refers to any activity, event, phenomenon, situation, event, process or arrangement that has potential of causing an accident. It can also refer to a situation in which an individual’s action or behaviors have a potential to cause harm. Employers have a responsibility of identifying hazards in the place of work and making sure that there are necessary measures to eliminate or isolate the hazards. Question4. The health and safety is essential since it outlines the health and safety standards that should be adopted in the workplace so that accidents are minimal. The act also explains the rights and responsibilities of the employer and the employee as a way to minimize conflicts among or between the parties. Question5. Understanding the purpose of health and safety in employment act is critical because it explains the intentions of the legislators in the drafting of the law. It also helps in understanding the meaning of the legal interpretation of the law. Understanding the provisions of the act educates the employers and employees of their rights and responsibilities. This helps in reducing conflict among the parties. Question6. Significant hazards are those factors that increase the level of risk exposure to the employees. Occurrences of risk are likely to pose a danger to the lives of the employees. Section 8 of health and safety in employment act 1992 requires that significant hazards be eliminated if possible. Those significant hazards that cannot be eliminated should be isolated. Question7. Serious harms are present in part four of health and safety act. Some of the serious harms include trauma injuries and serious fire burns. They are serious harms because they affect an individual’s well being and one takes time to recover from them. Significant hazards should be isolated. Any employer who violates the provisions on significant hazards is liable to legal consequences (Sealy & Hooley, 2008). Question8. Serious harms and illnesses affect an individual’s health and, therefore, should be treated at the earliest time. The employer has a responsibility of making sure that the injured employees receive the best medical care. Part four of the act requires employers to bear the expenses incurred for treatment of the employees injured in the place of work. Every employer has a responsibility of ensuring that the workers in their organization receive proper medical care. The employees should be provided with medical insurance policies so that they do not suffer when seeking treatment (Hubbard, Thomas & Varnham, 2012). Part B Explanation to Chookie on health and safety facilities as provided for by the Act. The employers are to provide facilities and benefits to employees for the services they provide. The employers are to provide workers compensation, social security funds, insurance covers, and housing plus safety equipments. The safety facilities that any organization should have include fire extinguishers, first aid kits that aid in providing medical assistance in case of emergencies. Organizations should have fire assembly points and health units. Task 2: case analysis Memo part A 1. The parties to the case are H who is the plaintiff and K, T and NZI who are the defendants. 2. The facts to the case are that K owns the land and has engaged a contractor T to clear and burn gorse on his land. It happens that the fire spreads without the knowledge of K and T and destroys part of the fence that they share with Mr. H. K takes a month to repair the damage done to the fence and in the process 30 deer escaped, and only twenty-four recaptured. Five hinds and a stag do not return home; there was a conclusion that they were missing. Mr. H demands compensation for the loss of his Deer. Mr. F also demands a compensation for the grass eaten by the deer. NZI is the insurance company that insured K and hence liable for making compensations for damages caused by K. 3. The case referred to by the tribunal is that of Ryland v. Fletcher. The legal principle behind the case is that of strict liability. The principle holds that any person who uses his land in an unnatural way is strictly liable for any damage caused by his or her action. K’s use of land is not natural since he was burning gorse. The burning of gorse posed a danger to the fence and property of the neighbor H. The tribunal determined that K was personally liable to the loss incurred by H. 4. The tribunal found K to be responsible for the loss suffered by H because the fire that spread from his compound destroyed part of the fence. The tribunal also established that K took a long time to repair the damages on the fence. The deer escaped because there was no fence; therefore, K should take responsibility. If K had mended the damaged fence, H would not have incurred any loses. 5. The tribunal decided that K through the insurance company should compensate H for losses incurred. The tribunal awarded H $4500 for the loss incurred. The stag was at $2500 while the five hinds were at $2000. The tribunal, however, dismissed the claims to compensate Mr. H with $ 825 because K was not responsible for the loss incurred. 6. The tribunal ordered NZI to compensate H the sum awarded on or before 11 December 2009. Additionally, the tribunal dismissed the claims to compensate F for the grass loss. Memo part B Common law refers to a branch of England law established by the courts based on the customs and usages by the English people. They came into being from the general customs of the country. The Doctrine of precedents The doctrine of judicial precedent is a legal rule requiring judges to refer to earlier cases, heard and determined by other judges. The judge should establish material facts where similar cases should form the basis of legal decision. There are various types of precedents namely binding precedents, persuasive precedents, original precedents and declaratory precedents (Gerbic and Miller, 2010). Binding presidents are judgments made by higher courts and are binding to the lower courts. Declaratory precedents do not create any obligation for judges to make decisions based on previous decisions. Original precedents are new legal judgments made for the first time. Declaratory precedents do not need the creation of new legal rules but applies existing legal principles. Judicial precedents have contributed to the growth of the judiciary because the rulings are consistent. Stare Decisis doctrine has also enhanced certainty, flexibility and practicality in the courts. The doctrine like any other has its share of setbacks that include promotion of rigidity and subjectivity. It is also in criticism for making the justice system appear complex as the rulings have to be looked for before making decisions hence delaying justice (Hubbard, Thomas & Varnham, 2012). In the case of H v K & T & NZI, the tribunal referred to the decision and interpretations made in the case of Ryland v Fletcher, which developed the doctrine of strict liability. When reading and applying case law, Charlie should identify the material facts subject to the case law and check on the legal interpretation of the facts by the judges. The material facts can be then compared with the facts underlying his case. I would advise him to hire a lawyer to help him interpret the law correctly. B) Liability of Chookie Chow if fire escaped from the bonfire and caused damage to the adjoined firm Chookie Chow will have responsibility for any damage that will occur in case bonfire escaped to the neighboring premises. Setting up of bonfire is an unnatural use of land and poses a danger to the property of the neighbors. The doctrine of strict liability as in the case of Ryland v Fletcher will apply, and Chow will have to compensate the neighbors. Chookie chow should obtain an insurance cover for the risks so that he does not suffer financial loss in case an uncertain event occurs. He should seek for a first-class fire insurance policy to protect his own property and that of the neighbors. Task 3: Negligence ILAC question The summary of incidence is a test on the understanding of the legal principles underling the tort of negligence. From the case, it is evident that Buddy Smith, who is an employee of Chookie Chow, acted carelessly that he hit the electric pole. Because of his actions, he had damaged the hairdressing salon; an adjoining production plant has made a loss; a woman has slipped over the spilled raw chicken. Issues There are a number of issues arising in the case. The issues are whether Chookie Chow’s negligence makes him liable to the loss suffered by the adjoining production factory. Secondly, there is the question on whether Chookie is liable for breaking a woman’s leg. The other issue is whether Chookie is liable for the destruction of the hair salon. There is the question on whether Charlie’s family should be compensated because he passed on in the line of duty. The law For a case on negligence to be succeeded, the plaintiff must prove that the defendant had a legal duty of care (Sealy & Hooley, 2008). He or she must prove that the defendant had breached the duty of care and that the plaintiff has suffered a loss due to the breach of the duty of care. Additionally, the law states that every person has a duty of care to the neighbors as in the case of Donoghue v Stevenson. In case of contributory negligence, the defendant and the plaintiff will share the loss incurred proportionately. Each party should be responsible to their actions. The law also explains the issue of ‘Res ipsa loquitor’ which means that actions speak for themselves. The ‘Res ipsa loquitor’ relieves the plaintiff the legal duty of proving negligence on the part of the defendant. The law also protects the plaintiff from being liable to people that he or she does not owe any legal duty of care. The plaintiff is only liable for actions that he or she should have reasonably anticipated that they would cause harm to other people. The reference case is that of Bourhill v young in which the judge ruled that the defendant had no duty of care to the plaintiff. Application In applying the legal principles in the tort of negligence, it is evident that Chookie can be sued for negligence by the production factory because he owed them a legal duty of care as neighbors. Charlie ought to have known that hitting the electric pole would interfere with the electricity supply and cause loses to the factory. The production company will be liable for compensation from Chookie Chow with the $200,000 incurred losses (Hubbard, Thomas & Varnham, 2012). Chookie chow is liable to the damage caused to the salon because Charlie’s actions contributed to the fire that damaged the salon. The owner of the salon is partly liable because she was careless of the connections of the gas. The policy of contributory negligence will apply in this case since both the defendant and the plaintiff are liable (Hubbard, Thomas & Varnham, 2012). Chookie Chow has no responsibility in compensating Mabel for breaking her leg. Charlie owed her no duty of care since her injuries could not be anticipated. The argument in Mabel’s case relates the decision in Bourhill v young in which the judge ruled that the defendant had no obligation to whatever happened to the plaintiff. Conclusion It is evident that Chookie Chow will have to incur costs in order to compensate the production plant. Chookie will compensate the salon for the damages caused but will have no obligation for Mrs. Mabel. The organization should, therefore, file a claim with the insurance company so that the affected parties receive compensation. Charlie’s family should not receive compensation because the cause of the accident was out of negligence and thus the organization had no responsibility. The insurance company should compensate the victims to enable them recover from the effects of the accident (Sealy & Hooley, 2008). References Gerbic, P. & Miller, L. (2010). Understanding Commercial Law (7th ed.) Wellington: LexisNexis. Hubbard, J., Thomas, C. & Varnham, S. (2012). Principles of Law for New Zealand Business Students (4th ed.) Auckland: Pearson. Legislation.govt.nz Employment relations act 2000. Retrieved from http://www.legislation.govt.nz Sealy, L. S., & Hooley, R. (2008). Commercial law: Text, cases and materials. Oxford: Oxford University Press. Zeller, B. (1999). International commercial law for business. Leichhardt, N.S.W: Federation Press. Read More