Tort Law, Australian Conciliation and Arbitration Commission - Assignment Example

Tort Law Name of the student Course: Guide professor: Date submitted 1. Introduction The Gleeson CJ’s judgment in the case of Kennedy cleaning services Pty Ltd v Petkoska was based on the personal injury in the course of employment. The courts used to give judgments based on the occurrence of injury in the past. In this case section (9) of the workers compensation act 1951 has been examined according to the context whether the employment can be held responsible for the injury or not. 1The definitions and contexts of the words disease, injury and lesion were taken into consideration to define the damage caused to the employee and the entitlement of him/her in the case of incapability to work. The courts have taken into consideration the reasoning in the Zickar v MGH plastic industries Pty Ltd and dismissed the appeal of the employer and upheld the entitlement of the respondent2. In this case along with the entitlement of the employee for the compensation the extent of the responsibility of the employer to give compensation other than regular benefits has been discussed. This overrode the section 7(1) of the workers compensation act (1951) in discussing the responsibility of employer and entitlement of the employee. The result was that the court found the area and the context the employer to disclaim the responsibility of paying compensation. 3 2. Back Ground Mrs Vesela petkosks, the respondent in this case has been employed by Kennedy cleaning services Pty Ltd who can be termed as appellant. On September 1992 the respondent suffered a brain stroke during the course of employment. This resulted in incapacitation of her to work. Her claim has been declined and she brought the case to magistrates court in Canberra. 3. Relevant Facts Thee important of the relevant facts in the case are that the respondent was unable to communicate at the time of hearing of the case. As a result the sole evidence in the magistrates court comprised of her husband’s deposition. His evidence has been received without objection. The further evidence and facts observed in this case are the results from the medical reports.4 The results and the causes for them are examined legally to decide the purview of the section (9) of the worker’s compensation act (1951). The entitlement of the respondent was decided on the basis of the medical evidence that is in line with the sections of the workers compensation act. It was observed that the compensation is for incapacity and thus the judges contemplated on the extent the employment were responsible for the injury. The onus on the respondent was to show that the incapacity resulted due to work involved in the employment.5 This prompted the chair to decide on the cause that caused the injury or the work in the employment of the respondent has aggravated it. The responsibility of the respondent is according to the section 7(1) of the workers compensation act and she is supposed to prove the responsibility of the employer to pay the compensation for the injury. 6There is another section in the form of the s 9(1) that decides the basis for the compensation. This section deals with the contracting or suffering an aggravation or acceleration of any disease that is a result of the work involved in the employment as a contributing factor. To decide on the extent of the responsibility of the employer and entitlement of the employee to get the compensation.7 The description of the pathological events is studied by the chair according to the medical reports of the patient. The condition of the patient that is termed as stroke took into consideration even the prior conditions and the employment of her that might have contribution for injury, lesion or chronic disease that has been resulted in the stroke at the work place provided by appellant. 8 4. Reasoning The reason that is developed by the appellant though dismissed by all the courts brought into discussion the congenital issues of the respondent and the prior employment that might have been caused the injury. The courts also observed the reasoning with legality provided in the workers compensation act (1984) but rejected the claims as the appellant is unable to prove the congenital causes for the stroke or the prior employment than with the appellant that might have initiated the process of injury. 9 This cannot be proved by the medical reports of the respondent or the reasoning put forth by the appellant. The courts dismissed all the reasoning of the appellant and entitled the employee to the compensation from her employer. 10 5. Logic involved The logic involved in the reasoning of the appellant is that the employer cannot be responsible for the congenital nature of the employees and the weakness of the employee due to the previous employment. There is no section that deals with the evidences regarding congenital defects of the employee and the diseases that are initiated with the previous employment. If so they cannot overwrite the rights of the employee that can make the employee qualify for the compensation under section 7(1) and section 9(1) workers compensation act. 11 Part 2 1. Introduction In general the common law jurisdictions did not consider the actions of wrongful life seriously. The disability of the plaintiff born due to medical negligence needs to be analyzed. The pain and suffering regarding physical and financial costs due to disabilities can be explored. In the case of Harriton and Stephens is a part of the efforts of the cases that made the high court consider the wrongful life context. In this case the plaintiff’s disabilities are made responsible for the mother’s exposure to rubella during pregnancy. The problems during pregnancy, the blood clotting disorder were pointed out by plaintiffs as the negligence of the doctors taking care of.12 The claim of the plaintiff’s is that the prior information of the disabilities of the child could have prompted them for an abortion. This according to them is able to relieve from the pains and costs of finance for the newly born disabled children and to them. The parents argued that they could have avoided the births of the disabilities if the doctors are more careful and informative about the child in the course of pregnancy. These claims placed the case category in the wrongful life. The judgment was given by 6:1 majority. 13 The minority judgment is of Justice Kirby who dissented the wrongful life judgments of the majority judges and held doctor responsible for the birth of the plaintiffs. Remaining judges held that the wrongful life is not a valid cause of action on the doctor in this case. The majority judgment talked about the comparison of the suffered damage with the non existent life of them if the so called doctor’s care has been taken. As the existent suffering cannot be compared to the nonexistent avoidance of suffering the majority of judges have rejected the claim under wrongful life to take action. The negligence occurred cannot be proved legally according to the majority of the judges. 14 2. Background The parties in the case Harviton contended that the wrongful life cases are incorrectly decided. According to them the medical negligence should be a part of the tort act and the compensation should be given according to the plaintiff whose disabled birth can be avoided by the doctors. According to the common law in UK, Canada, US states the wrongful birth can be decided on the actions of the parents but not on the actions of the doctors.15 Though the parents claimed that the information from the doctors could have refrained them from giving birth to the child the consideration of the case under wrongful life did not allow the parents to get compensation from doctors as the majority judges felt that the case is not having enough criteria to be considered under the wrongful life category. 16 3. Reasoning The case concentrated on a set of facts to allow the determination of the threshold issues regarding the preliminary hearing. The reasoning lies in the placement of the case in a particular category. The placement of the case under a category decides the extent of recovery in the form of damages and compensation. Though the correct category cannot be decided, the placement of the case under the wrongful life category decided the negative outcome for the parents of the plaintiffs. 17 In the majority judgment in which Crennan J was a part held that the doctor’s alleged duty of care to the child should not be recognized. As that duty is incompatible, with the doctor’s existing duty. The category the case placed did not recognize the avoidance of the birth as the duty of the doctor to avoid the pain and suffering to the parents. The wrongful life category recognizes the doctor’s duty as the care offered to the mother to deliver the child without any serious consequences for the life and health of the mother. The majority judgment in which Crennan J is a part did not recognize the doctor’s duty towards child and observed the argument of the parents as incoherent. If the case is to dealt under ordinary tort principles, the comparison is needed. That comparison is not possible as the parents of the plaintiffs are comparing the existing life to non existent birth. They are claiming the existent loss to the life to the non existent gain of avoidance of birth. 18 4. Logic involved The logic involved in the case according to the majority judgment is the impossible comparison and duty of care according to the minority judgment of the Kirby. Crennan raised the policy concerns about the risk of a parent being sued by the child for wrongful life and he felt that this devalues the lives of the disabled. If the logic is regarding the damages the principle applied to wrongful life needs impossible comparison between existence and non existence. 19 According to Kirby J the wrongful life actins can succeed on ordinary principles of negligence, which was not accepted by majority of the judges as a breach of care and causation of the damage. In this case Kirby J observed the doctor’s alleged duty of care is within the established duty owed by persons like defendant. 20This enables the court to take reasons that can prevent prenatal injuries to a person. He contended that though the foetus hs no legal rights until birth the doctors treating the mother have the legal responsibility for the damages of the patients. The doctors should offer reasonable care and skill in providing medical advice. 21 References 1. Melbourne university, Melbourne university law review, 2006, Melbourne University, ,electronic, 27-8-07, http://www.austlii.edu.au/au/journals/MULR/2006/31.html#Heading89 2. Alice Grey, 2007, Harriton v Stephens: Life, Logic and Legal Fictions, law.usyd, ,electronic, 27-8-07, http://www.law.usyd.edu.au/slr/slr28_3/Grey.pdf 3. Melissa A. Waters∗ 2002, Foreign Authority” Through a Narrow Lens: Interpretive Incorporation of Treaties, law.uga.edu, , electronic, 27-8-07, http://www.law.uga.edu/intl/waters.pdf 4. Callinan J, 2000, Kennedy Cleaning Services Pty Ltd v. Petkoska, Autralian government, ,electronic, 27-8-07, http://law.ato.gov.au/atolaw/view.htm?DocID=JUD%2F200CLR286%2F00005 5. AIRC, 1999, Workplace Relations Act 1996, Australian Industrial relations commission, ,electronic, 27-8-07, http://72.14.235.104/search?q=cache:1fxlEqnPMXcJ:www.airc.gov.au/updatedawards/AP799020.rtf+entitlement+of+the+employee+for+the+compensation+the+extent+of+the+responsibility+of+the+employer+to+give+compensation+other+than+regular+benefits+has+been+discussed.+This+overrode+the+section+7(1)+of+the+workers+compensation+act+(1951)+in&hl=en&ct=clnk&cd=1&gl=in 6. Australian safety and compensation council, 2007, Psychological Injury Claims, ,Australian Government, ,electronic, 27-8-07, http://www.ascc.gov.au/NR/rdonlyres/6C3352C9-7A50-421C-AA40-8B6F9DC10FFF/0/PsychInjuryClaimsReport.pdf 7.Gleeson CJ, Kirby J, GleesnKennedy Cleaning Services Pty Ltd v. Petkoska, Australian Government, ,electronic, 27-2-07, http://law.ato.gov.au/atolaw/view.htm?DocID=JUD%2F200CLR286%2F00002 8. wagenet, 2007, IN THE AUSTRALIAN CONCILIATION AND ARBITRATION COMMISSION Australian government, ,electronic, 27-8-07, http://www.wagenet.gov.au/WageNet/Search/View.asp?docid=22817&query=&quickview=Y&page=whole 9. BETH FOERSTER, 2003, Wprker’s Compensation, -OUTLINE, community.washburnlaw.edu, ,electronic, 27-8-07, http://72.14.235.104/search?q=cache:k-dNpLwIwQsJ:community.washburnlaw.edu/aalsa/outlines/workcomp-foerster-1.doc+The+responsibility+of+the+respondent+is+according+to+the+section+7(1)+of+the+workers+compensation+act+and+she+is+supposed+to+prove+the+responsibility+of+the+employer+to+pay+the+compensation+for+the+injury&hl=en&ct=clnk&cd=2&gl=in 10. 10. JONATHAN HALL 2004, BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION, awcc, ,electronic, 27-8-07, http://www.awcc.state.ar.us/opinions/alj/2005/gi/hall_jonathan_f408540_20050125.pdf 11. Attorneys at law, 1995, Appeal of Donna L. Hurst, SUPREME COURT OF NEW HAMPSHIRE, ,electronic, 27-8-07, http://www.e-atty.net/cases.html#hurst 12. Attorneys at law, 1996, Appeal of Mark S. Griffin, Supreme court of New Hampshire, ,electronic, 27-8-07, http://www.e-atty.net/cases.html#griffin 13. legal and IT, 2006, Tort law and case notes, legalandit.ca, ,electronic, 28-7-07, http://www.legalandlit.ca/summaries/first/torts/torts_hutchinson_f03_1.doc 14. . Sydney law review, 2006, TORTS AND DAMAGES: POLICY & FUTURE DIRECTIONS, Australian Government, ,electronic, 28-8-07, http://www.law.usyd.edu.au/slr/docs_pdfs/editions/slr_v27_n3.pdf 15. outlines.law.uvic.ca, 2007, The Negligence Action, outlines.law.uvic,ca, ,electronic, 28-8-07, http://outlines.law.uvic.ca/courses/torts/torts_9900_outline_carolanne.htm 16. 4lawschool.com, 2007, Tort Law, 4lawschool.com, ,electronic, 28-8-07, http://www.4lawschool.com/outlines/bank/torts.htm 17. Deakin Law Review, 2007, The Birth Torts: Damages For Wrongful Birth And Wrongful Life, Deakin Law review, ,electronic , 28-8-07, http://search.austlii.edu.au/au/journals/DeakinLRev/2005/16.html 18. vardanega Roberts, 2007, Professional Negligence in Australia Review, Vardanega Roberts, ,electronic, 28-8-07, http://vrtest2.dyndns.org/cases/ProfNeg.php 19. Daniel More, 2003, The Boundaries of Negligence, Berkeley electronic press, ,electronic, 28-8-07, http://www.bepress.com/til/default/vol4/iss1/art6/ 20. Rob Davis, 2002, INQUIRY TO REVIEW THE LAW OF NEGLIGENCE, APLA Legal and Policy Submission, electronic, 28-8-07, http://revofneg.treasury.gov.au/content/subs/042Plaintiff.pdf Read More