Liability at the Workplace - Assignment Example

LIABILITY AT THE WORKPLACE STUDENT NAME TUTOR NAME COURSE TITL DATE What are the legal issues Raised? The case scenario presented is a typical example of injuries that can occur within the workplace as well as the kinds of potential suits that can be instituted against an institution. The main issues under consideration are; i. Whether the bank had a duty to ensure that their premises was safe for all customers including keeping the floor dry? ii. Whether I had a duty of telling the client about the existence of the brochure? iii. Whether Sam and the Bank are liable for misleading the client on information about the provision of financial services? iv. If liability is ascertained, are there any defenses that can be raised to reduce the apportionment of damages or liability? In the first instance the most appropriate case to be filed by the client would be the tort of negligence. This would suffice on the question whether the Global Banking Corporation was negligent in the way they took care of their customers at their Adelaide Branch. A tort is defined as “a civil wrong rather than a breach of a contractual obligation and the courts do normally award damages in this case”1. In the case of Donogue v Stevenson2, the test for determining whether there was breach of duty of care was set; that there must be a duty of care owed and that the plaintiff breached that duty and that the plaintiff suffered damage due to that breach. The breach of duty of care in this case would be two fold whether the employee was negligent by failing to disclose all the information relating to the financial services and was the bank a party to the injury incurred by the client while running out of the bank. In this regard for the bank to be liable for payment in terms of damages for injury suffered by the plaintiff occasioned by the fall the main issue would be was there a duty of care. It would be considered whether there was a link between the fall and the fault of the Bank. The main element in the workplace would be the determination of whether the bank would have reasonably foreseen that a customer would suffer loss or damage as a result of leaving water on the floor. The test is objective, and the main issues to ask is was the defendant in a controlling position and had knowledge or legally aware of the position. In the case of Paris v Stepney Borough Council3 it was stated that the standard of care that must be established and observed must be that of which an ordinary and prudent person would observe. In my opinion there is no way the bank could have prevented the client from running to the bank, however they could have kept the floor dry, since many customers walk by. It is essential that the bank must ensure that the floors are dry because of the likelihood of a customer being injured through a fall. The other question is whether there was any real likelihood of occurrence? In the case Bolton v Stone [1951] AC 850 it was stated that to determine liability there ought to be a reasonable chance of occurrence and in this case if the water remained on the floor other customers would be hurt. Further there is a causal link between the injury suffered by the customer as per Chappel v Hart4, “that were it not for the fault then the damage ought not to have incurred , but if one can say that even without the breach it still would have occurred then there can be no damage”. Therefore were it not for the banks negligence in failing to ensure that the floor was risk free then regardless of the client running outside he would not have injured himself. In the workplace the employees have a duty to be competent and handle their work with due care, skill and judgment. In the case of Pacific Acceptance Corporation Ltd v Forsyth5 that if a person purports to have a skill the standard of care must be increased. The case cited above was on the basis that there were fraudulent and irregular features in the loan and the customer was not warned adequately by the employee. In this case, there exists a duty of care by Sam to the customer on the basis that he ought to be informed on the risks involved in making the investment that he seeks from the bank. The bank also has a duty to disclose all material information to a client before a client attests to a contract. Section 46 of the Work Health and Safety Act 2012 of provides that there is a duty for all duty holders to consult in respect of any matter that is reasonably practicable. It is therefore material that the manager ought to have consulted without unanimously deciding that the brochure ought not to be given because of the high cost of printing paper. In law where there is a duty there is a remedy and therefore the existence of a duty leads to indeterminate liability. (Jaensch v Coffey6. Occupier liability is a tort that gives rise to an implied duty of care owed by an occupier of a building to persons who come within it with or without permission who suffer personal injury during the course of their visit7. In the case of Australian Safeway Stores Pty Ltd v Zalzuna8 it was held that liability is on the occupier to ensure that the premises is safe and that the defendant (bank) was in control, negligent and that the duty of care was breached. Vicarious liability is s tort where an employer may be vicariously liable for negligent act of an employee done within the course of their employment (Starks v RSM Security Pty Ltd [2004]). In this case if the customer would suffer financial loss through the advice of the employee then the employer would be liable if the employee acted at the instruction of the employer in the interest of the business as stated in Stevens v Brodribb Sawmilling Co Pty Ltd (1986). The liability for any tort of negligence in this case, the bank would be liable for all acts of the employee that were done in the interest of the business and within the employee’s duty. What are the possible defences that can lessen liability? Contributory Negligence Contributory negligence is a defence used by a defendant in a negligence case to show that the plaintiff failed to take reasonable care for his or her own safety within the workplace. In the case of Liftronic Pty Limited v Unver (2001) 179 ALR 321 it was stated that where contributory negligence is proved the standard of care applicable is lower than that applied in negligence (Williams 1998). In the case of Baker v Willoughby [1970] the main tests are that the plaintiff failed to take reasonable care for their safety or the safety of their property and this caused the resulting injury or damage. In seeking to rely on contributory negligence as stated in the case of Joslyn v Berryman it is an objective test in the determination of whether the risk of injury or injury could have been avoided by the customer. The onus of proof however would shift to the defendants to prove on a balance of probabilities that the plaintiffs conduct amounts to a failure of taking care of themselves. Voluntary Assumption of Risk The defence of voluntary assumption of risk (volenti non fit injuria) is used when the plaintiff knew of the risk but nonetheless accepted the risk9. In my opinion the customer having ran out of the Bank, he knew there was risk of falling regardless of whether there was water on the floor. The test used to qualify the defence is whether there was an obvious risk and whether he knew the nature extent to manner of occurrence (Kelly v Carroll )10 The main items to be proved for the defence to work are that the plaintiff had perceived the danger, that the plaintiff must have fully appreciated the danger and that the plaintiff voluntarily accepted the risk. In this regard as long as the bank can prove the set tests for voluntary assumption of risk then they would not be liable for any loss or damage suffered by them. Exclusion Clauses (Waiver) If for instance if within the Bank there was sign of do not run, then the clause or sign would exclude liability including that of negligence against the bank as stated in Lee Gowan v Graham Windsor11. However, if one relies on exclusion clauses as a defence then he must prove on a balance of probabilities that the plaintiff was adequately informed and knew of the existence of the exclusion clause. Bibliography Glofcheski, R, ‘Plaintiff’s Illegality as a Bar to Recovery of Personal Injury Damages’19 Law Society (1999) 6. Jaffey, A. J. E., ‘Volenti Non Fit Injuria’ CLJ (1985)87. Tan, K. (1995), ‘Volenti Non Fit Injuria: An Alternative Framework’ 3 Tort Law Review (1995) 208. G. Williams, Joint Torts and Contributory Negligence (1951), 353-4 J.G. Fleming, The Law of Torts, (9th edn 1998), 466 Johnstone, R. , Occupational Health and Safety Law and Policy: Text and Materials, (Lawbook Co., 2004). Workplace Safety Act 2012 , SA Read More