Construction Law and Torts Issues - Assignment Example

Construction Law and Torts Name Professor Class University City Date of submission 1. (a) (I). What is class action A class action commonly known as multi-district litigation or mass tort litigation is a procedural lawsuit that gives permission to one or more plaintiffs, with similar injuries caused by the same company or defective products, to sue the defendant as a group (Morabito, 2009, 115). In this particular case, the class action is basically as result of corporate negligence. Notably, a class action is a procedure that is generally used where the plaintiffs are not in a position to pursue legal redress on their own as a result of the relatively minor injuries. However, the plaintiffs can come together to sue the defendant through consolidation of their evidence, attorneys, other aspects of the litigation as well as witnesses in way that the value of their claim adds up. Similarly, it always becomes impossible or even impractical for the plaintiffs to file individual lawsuits especially where the number of the individuals affected by the corporate negligence or misconduct is high. In that case, a representative plaintiff also referred to as the lead plaintiff is chosen by the group after filing the lawsuit when the action to sue the defendant as a class is permitted. Class action is of great importance since it helps to consolidate and dispose of hundreds of claims at one go that are basically impractical for individual litigation, making the process much more efficient (Morabito, 2009, 123). The amount of recovery obtained if the class of the plaintiffs wins is divided among the plaintiffs when the court finds the defendant liable for the plaintiff’s injuries. While the class action subject matter can widely vary, there are two factors that are ever present for every class action (Morabito, 2009, 125). The first one is based on the fact that the disputing issues are common to all the class members. The second factor is based on the fact that it is impracticable to bring all the persons affected before the court due to their large number. Conversely, the design of class action lawsuits is such that they are to advance various important goals of public policy. In addition, the main goal of class action is to enable individuals, especially those with severe injuries, to get full compensation for the injustices committed to them by powerful, multi-billion dollar institutions and corporations. In simple terms, this means that small claimants are able to find a legal remedy against those companies and individuals that command the status quo. Furthermore, class actions have become very important in the age of mass marketing and mass production since an opportunity is given to individuals to take on multi-national institutions and corporations especially where the cost of litigation would otherwise have been prohibitive (Morabito, 2009, 131). Therefore, for the purposes of allowing individuals an opportunity to group together and be equally matched against corporate defendants, the class becomes a de facto corporation. Ideally, without the risk of inconsistent decisions by the courts and the costs of thousands of separate lawsuits, a class action helps to provide an effective remedy for the group. (II). What relevance do class actions have in engineers planning to avoid claims? Class action have a role to play as far as engineering is concerned especially where there is need to protect various individuals against claims that might sometimes results to enormous costs (John and Michael, 2015). Class action is in itself a cure for corporate misconduct and therefore stands as a very critical legal procedure that guides engineers against unnecessary claims that may arise from negligence which amounts to their misconduct in general terms. Ideally, a vast majority of the corporate officials in the engineering sector and other sectors of the economy in Australia would want to do everything within their power to avoid being involved in the litigation of class action securities. Therefore, out of the fear of facing the plaintiffs’ bar of security class action, it becomes relevant for the engineers to invest a lot of efforts in trying to avoid actions or things that might attract such attention in their service delivery. To that end, the existence of the litigation of class action has a deterrent effect on the engineers whose main effort is to avoid any sort of troubles (John and Michael, 2015). Henceforth, for the purposes of facilitating an effective operation of service delivery, engineers ensure that they have developed a well-policed system of regulation. (b). Identify the person or groups of people referred to in the case that could have claim damages at law against SPI charged with carrying out inspection of the UAM power line. The class action lawsuit filed against AusNet services, the largest energy company in Victoria, for the damage was on behalf of the state government and other government departments and agencies that had public property destroyed or damaged by the black Saturday bushfires in the Murrindindi Shire (Supreme Court of Victoria, 2014). The damage also stretched to Marysville primary school and police station. Forty lives were claimed by the fire leaving seventy-three people injured and five hundred and thirty-eight homes destroyed around Buxton, Marysville and Taggerty. The other government agencies and departments that the class action was launched on behalf of by the state government were the VicRoads, County Fire Authority, Parks Victoria, Alexandra District Hospital, State Emergency Services, the Department of Environment, Water, Land and Planning and the Director of Housing (Supreme Court of Victoria, 2014). In addition to this, the residents of Murrindindi brought a class action against SPI a move that saw the state government being added as a co-defendant. 2. What is the basis of attributing any liability to SPI for the damage arising from the fire. What part of the liability should fall to the maintenance contractor charged with carrying out a periodic inspection of the UAM power line. The liability attributed to SPI for the damage of life and property arising from the Kilmore East Kinglake Bushfire was based on the construction, design, inspection and maintenance of its electricity distribution assets like poles and wires at Murrindindi (Supreme Court of Victoria, 2014). Furthermore, the liability was based on the supervision and training of inspectors in relation to the reconnection of electricity and its patrol of the Murrindindi assets on Black Saturday following a power failure. UAM contributed towards the attribution of SPI’s liability through its alleged negligence in the supervision and training of its inspectors and the inspection of the Murrindindi assets. In addition, it is alleged that SPI also known as AusNet, was liable as a principal for the omission and acts of its agent, UAM and in nuisance under a derivative liability, it was also liable for breach of its statutory duty (John and Michael, 2015). Similarly, the liability to SPI was due to alleged failure of the state parties to provide enough warnings of the Murrindindi fire. The liability was based on the basis that SPI’s system of inspection were not adequate and towards the failure of UAM in carrying out an inspection of the Pentadeen Spur with due care and skill in February 2008. A further alternative allegation of SPI was based on the fact that it had neglected UAM by reducing the frequency of inspecting its top wooden pole assets from a three-year basis to a five-year basis in 2000 and 10 year-basis for its concrete poles (John and Michael, 2015). According to the plaintiff, SPI was particularly negligent because it opted to make the changes without considering an efficient risk assessment of the effects that the change had as far as the safety of the pole top assets is concerned particularly the conductors (Supreme Court of Victoria, 2014). However, out of all the liability claims, those that were particularly advanced towards the maintenance contractor AusNet or rather SPI were based on negligent inspection of the Pentadeen Spur line. The plaintiff contended that the UAM’s very last inspection in February 2008 negligently performed by the maintenance contractor (Supreme Court of Victoria, 2014). To that end, the use of proper and due care required that the maintenance contractor was to basically use binoculars that are image stabilised that were provided to him in order to conduct from at least two positions, a methodical scrutiny of the pole top assembly. According to the plaintiff’s summary of the liability claim, the maintenance contractor should have made an identification and report matters pertaining to the issue of negligent inspection such as the following (Supreme Court of Victoria, 2014). Foremost, the fact that a strand of conductor that was adjacent to the helical wrap on pole 39 had immediately broken. Second, that part of the wood of pole 9 had significantly split and thus extending to the strain assembly bolt pole from the pole top down. These and other significant matters according to the plaintiff’s contention should have been reported by the maintenance contractor yet they were never reported. If such issues were reported, an immediate inspection would have been closely pursued by UAM and the poles would have then been replaced. 3. In a case where there is a legal liability, what are the limits imposed and the recovery in respect to the various classes of person to whom the damage was caused. Where the court gives legal liability such that the defendants are liable to the plaintiffs, the amount each person is to recover is not easily determined. The amount recovered by individuals claiming for personal injury is first assessed interms of the actual losses they suffer after which the amount they are to recover is calculated as 80% of the finally assessed value (Barker, 2012, 112). In addition, the money contributed by the state is also channelled to the individuals claiming personal injury. On the other hand, the individuals claiming property damage and economic loss are rewarded by the left over from the personal injury claims. Nonetheless, the amount that they are to recover is determined based on a formula that assesses various losses such as the property and loss of fences. This particular formula tends to address, as opposed to non-home buildings, the valuation of homes (Barker, 2012, 114). Second, the valuation of fences and that of domestic chattels and ordinary home contents as opposed to collectibles as well as normal livestock as opposed to bloodstock. Furthermore, it also addresses issues that pertains to the valuation of trees and gardens that emerges from the exchange of various expert opinions. Last, it addresses the income losses by self-employed persons or employees due to time off work to attend to disruptions from the fire or damage to business assets. The limitations imposed on the legal liability are largely attributed to the requirements of negligence (Barker, 2012, 122). Ideally, it is not possible to absolutely determine most cases of negligence because they tend to depend on some limits or factors. Foremost, there is need for a legal duty to use or perform reasonable care (Barker, 2012, 123). Second, there should be a failure to exercise that duty. Third, a loss or an injury must be suffered by the plaintiff. Last in this list, the proximate cause of the loss or injury must be the negligent. Conversely, since the Aitkin’s formulation in Donoghue versus Stevenson, the extent that liability has for negligent acts has significantly increased (Barker, 2012, 125). However, the High Court of Australia have recently limited the scope of liability. To that end, there has to be an accord of the level of responsibility with social and economic realities. Where negligence is associate with failure to take precautions against an accident in which the cost of its precautions is exceeded by the cost of the accident, then it makes sense for no precautions to be required against accidents that occur seldom that the benefit of preventing the accident approaches zero (Barker, 2012, 127). Hence, there is an implication of foreseeability when estimating the benefits of accident prevention. There seems to be no practical formula used by the high court of Australia in determining liability. However, the court in most cases uses the Shirt Calculus from the 1990 HVA 12 Wyong Shire Council versus Shirt case. The formula is limiting because it assumes that the tribunal of the fact has to first make a consideration as to whether there is any possibility for a reasonable man in the position of the defendant to foresee the involvement of a risk of injury to the plaintiff or a class of persons through his conduct (Barker, 2012, 133). Similarly, while making a finding of negligence, it is important to consider the concept of foreseeability which is an essential condition pertaining to the existence of a legal liability. This concept is relevant to the scope and existence of a duty care, remoteness of damage and breach of duty. Relating to Tame versus South Wales case, in the context of duty of care, it may not be necessary to have foreseen the precise sequence of activities that lead to the injury of Mrs Turano. However, the High Court of Australia in it formulation of duty care on broad foreseeability considerations is based on the fact that it was foreseeable by Sydney Water that a risk of injury to road users was involved by laying a water main in a bed of sand at particular location (Barker, 2012, 135). Therefore, the limitation here is due to the fact that it is requirement to first make a correct determination of the fundamental issues of whether there was existence of a duty care before a consideration of foreseeability is made in the context of remoteness of damage and what conduct constituted the breach. In addition, there must be an objective determination as to whether a relevant duty was owed while considering the necessary and reasonable response that would have been foreseeable to any risk that is perceived (Barker, 2012, 137). 4. (I) Having regard to the problems experienced, what procedures would you put into place to limit exposure to the claim of negligence with reference to the principles of law applied in the case and use of examples mentioned in the cases. Liability against the tort of negligence as seen in the case of the Kilmore East-Kinglake bushfire arises where there is a breach of a duty to take care that ends up causing damage to the plaintiff (McGlone and Amanda, 2009, 118). The claim for negligence in this case ensues when AusNet completely fails to exercise ordinary care that would have instead avoided injury to persons and their property. For such a claim, the plaintiff must make a full establishment of duty of care and its breach, causal connection and actual harm. In order to limit exposure to the claim of negligence in this case, I would ensure that I focus on the four elements of negligence highlighted above. Foremost, I would challenge the plaintiff’s status such as licensee v invitee and the corresponding duty of care (McGlone and Amanda, 2009, 120). Second, I would assert that its action as in line with the requisite standard of care. Third, I would ensure that I successfully attack the casual link between omission and act and injury or harm. Fourth, I would create a platform in which the plaintiff is questioned as to whether he suffered any actual loss. In addition to this, I would ensure that there is an efficient mechanism in which there is fully substantiated fact that the injured party also contributed to negligence so as to prevent jurisdictions that allow escape full liability by an otherwise negligent party (McGlone and Amanda, 2009, 125). As opposed to the Kilmore East-Kinglake bushfire case in which the court failed to factor in comparative vs contributory negligence, these procedures would have ensured that a relative degree of fault between the defendant and the plaintiff is taken into account. Therefore, this would have ensured that the damage award was accordingly adjusted. (II) Does compliance with current standards bar successful claims for negligence. The current standards have not done much to bar successful claims for negligence as opposed to the standards that were earlier formed in the early industrial revolution. As the society changes, the standards also change with more value being placed on persons and their property hence making claims for torts a very successful legal procedure (McGlone and Amanda, 2009, 127). For instance, the common laws within the eighteenth and nineteenth century had a limited relationship in the recognition for a duty of care between. This implied that there was no remedy at law if the plaintiff’s case did not fall within those relationships and thus making it very hard to achieve successful claims. However, this has been changing progressively after the case 1932 AC 562 of Stevenson vs Donoghue in which the law of negligence has been gradually expanding. To that end, Australian parliament has currently made some legal changes to the law of negligence such that the reasonable person test to risk of injury to a person has now been replaced by Lord Atkin’s three step act of reasonability and foreseeability (McGlone and Amanda, 2009, 129). The current standards are basically attributed to the fact that there is no negligence on that part of person when he fails to take precautions against a risk of harm. Such standards hold unless, there is some aspect of foreseeability in the risk, the risk being significant, and where a reasonable person in the circumstances would have taken these precautions in the person’s position. Similarly, the Australian courts considers whether the risk is foreseeable and the reasonability of the actions of the defendant interms of the burden imposed by covering the risk, the cost and the social and public utility of the conduct of the defendant. Therefore, a breach of the standards is established if the defendant fails to meet the required standard of care. Therefore, the changes made in the current standards of the law of negligence in Australia has increased the possibility of successfully claiming for negligence by the plaintiff’s as compared to the ancient standards (McGlone and Amanda, 2009, 134). To that end, the current standards have paved way for negligent acts which may allow recovery of damages by plaintiff for pure economic loss such that where there is no property damage and personal injury that is directly caused to the plaintiff and his property. Nonetheless, the plaintiff still stands a chance to claim remedy for the destruction of property belonging to another in which he completely has no legal interest. In a nutshell, as the Australian society changes, the law moves on as it ambles along behind the societal changes (McGlone and Amanda, 2009, 137). The law of torts especially on the part of negligence expands subject to the restrictions places upon it by the parliament in order to represent the society at its full capacity. Henceforth, it has been through such expansions and changes to represent society that have made efforts of the current standards to bar successful claim for negligence null and void. Bibliography Barker, Kit. The Law of Torts in Australia. South Melbourne: Oxford University Press, 2012. John E., and Michael L. "Class Actions in Australia - 2014 In Review - Litigation, Mediation & Arbitration - Australia." Articles on Australia - Litigation, Mediation & Arbitration Including Law, Accountancy, Management Consultancy Issues. Last modified January 30, 2015. http://www.mondaq.com/australia/x/370098/Personal+Injury/Class+Actions+In+Australia+2014+In+Review. McGlone, Frances, and Amanda Stickley. Australian Torts Law. Chatswood, N.S.W.: LexisNexis Butterworths, 2009. Morabito, V. An Empirical Study of Australia's Class Action Regimes: First Report, Class Action Facts and Figures. Melbourne? Monash University, 2009. Supreme Court of Victoria. "410 Gone." Australasian Legal Information Institute (AustLII). Last modified December 23, 2014. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2014/663.html?stem=0&synonyms=0&query=title%28Matthews%20and%. Read More