Duty of Care Using Case Law - Assignment Example

TORTS LAW Name: A Report Submitted by (You) Institution Course Date: TORTS LAW Duty of care using case law Duty of care is the responsibility to oneself, fellow workers and everyone else in the workplace. Duty of care is violated is a worker decides to behave in an unreasonable manner when faced with a situation (Quality lifestyle alliance, Inc, p. 1). Duty of care can be violated either through failure to act or through an action that is contrary to the law. Duty of care extends to all those who design and construct buildings, those who control the workplace and those who manufacture and supply plant. It is owed in law by one individual to another (Commission for Occupational safety and Health, 2005, p. 1). Duty of care aims at preventing people from being killed, contracting a disease or being injured because of activities taking place at work including using equipment or plant. The claimant should show a duty of care supported by law, which the defendant has violated. An individual can be held liable through the breach of duty. There are several people who have a general duty of care according to the law (Commission for Occupational safety and Health, 2005, p. 5). They include employees, employers, constructors or designers of buildings or structures, persons employed by a contractor, those in control of workplaces or access to workplace egresses, designers or manufacturers of substances or plant to be used in workplaces and corporate bodies who engage employees under labor relations that are covered with the act. Duty of care can be enforced by operation law between persons who do not have current, direct relationships, but will finally become related as defined by case law. There is no requirement that duty of care be defined by law. This is despite the fact it will develop through common law. Tests for duty of care include the fact that it must be fair, reasonable and just to impose liability, harm has to be a reasonably foreseeable result of the defendant’s behavior and there has to be a relationship of proximity between the claimant and the defendant (Harpwood, 2000, p. 40). Even though, a relationship may exist, the scope of duty must depend on the circumstances that led to the case. There are several factors that influence the judges that may be imposed either on the claimant or on the defendant. The factors or considerations include moral considerations, loss allocation, practical considerations that may include forward planning for manufacturers. Whether the duty imposition could create inconsistencies with other areas of the law; the idea that no duty should be owed to members of an indeterminate class of possible claimants; the reluctance of the judiciary to create new common law duties, respective constitutional roles of the judiciary and parliament, and whether the imposition of duty will encourage people to be more careful in their actions (Harpwood, 2000, p. 35). In order to comply with the duty of care employers could consult, with employees, to consider systems of work that reduce workplace risks. Information and training should be provided so that employees know how to handle risks. Question 2 This is a letter aimed at providing you with counsel on how you can achieve success in suing the ABC Constructions Ltd. What you need to recognize is that this is a case of reasonable foreseeability. This is so because the employer had seen the forthcoming danger. This led to his instruction to stop the practice and instead opt to use a different machine. It is also a case of causation because the employer did not ensure that the alternative machine was available for work. This resulted in the continued use of the practice. The employer has a duty to take realistic care to avoid exposing workers to risks and injuries that are unnecessary (Stewart, 2011, p. 283). As for you, a relationship of proximity will have to be established. This will enable the determination of whether the risk of injury was realistically foreseeable or not. Reasonable foreseeability test in the common law of Australia runs from the reasoning made by Lord Reid for the Privy Council in Wagon Mound No 2. The reasoning ensured that a test was always done to determine how foreseeable that possibility of injury needed to be (Position Paper, 2002, p. 13). The circumstance in which you as the claimant were in is the fact that the risk of injury was foreseeable and could have been reduced or eliminated. The elimination could have been in the form of provision of a new machine or an alternative practice that would have reduced the risk of injury. The new machine would then lead to the elimination of practice that finally led to injuries incurred (Position Paper, 2002, p. 15). A major element in the establishment of a claim in negligence is the proof that the damage was caused by the defendant’s fault. A causal link however, has to be established between the injury and the defendant’s actions (Position Paper, 2002, p. 20). Therefore, you need to proof that there is a link between the injury and the actions of your employer. This could be easy for you since your employer always knew that it was hazardous to persist with the practice. There has to be a consideration of the magnitude of the injury and the degree of the possibility of its occurrence, along with the difficulty, expense and inconveniences of taking action and responsibilities that the defendant may have (Stewart, 2011, p. 283). You are a worker of the corporation and the injury you suffered means that you are entitled to workers’ compensation. The breach of his duty of care by the employer clearly states, which is the reason, why he could not provide a safe workplace. It could also mean that he is liable for negligence of his own workers (Stewart, 2011, p. 283). You, however, have an obligation to substantiate that you are an employee of the company. This means that you have to provide your letter of employment or contract letter. This will help provide a link between you and the construction company. Question 3 Tremain v. Pike provides an example that restricts recoverable damage. A farmer allows rats to infest his land, which causes one of his farm hands to catch a disease. The claimant lost the case though on grounds that he was supposed to foresee the danger of coming in contact with rat’s urine (Tunc and David, 1983, p. 72). Duty of care is not the issue here; otherwise, it would have been, for the judge, to discover. Causation and remoteness of the damage A person cannot be held liable for any harm for failure of the claimant to take care in order to prevent injuries. The extent of the liability of the defendant is determined by the set boundaries by the judges. The argument that can be made on behalf and in favor of the claimant is the remoteness of the injury. The injuries caused were also because of the defendant who allowed rats to infest his farm. What the defendant should have done was to seek ways to eliminate the rodents. The elimination would have ensured a safe workplace for the claimant and hence no injuries would have been encountered. Remoteness rules deal with two kinds of situation. The first is where the harm caused to the claimant by the defendant is of an unexpected or an unforeseeable nature. The rule here is that the defendant may be held liable for harm caused by the tort. This is despite the fact that the harm may have come from unforeseeable causes or is unforeseeably severe (Cane, 1997, p. 176). The court held that the farm worker’s disease was of an unforeseeable kind. The classification of injuries into types does not mean that problems will arise. It is still imperative to note that the requirement of reasonable foreseeability may relieve the defendant of liability of harm, which was caused by the claimant’s tort. If the damage was not too remote from the defendant’s act, the defendant is not held liable for the injuries. This will however require the determination of whether there had been any previous injury that resulted from the acts of the defendant. The claimant will therefore be required to provide such evidence if any (Position Paper, 2002, p. 20). The evidence will help boost the case and provide more chances for the claimant to be compensated. Causation has two aspects the first being the factual aspect and the second being the legal aspect. The factual aspect concerns whether the conduct of negligence played a bigger part in bringing harm to the claimant. A set limit has to be placed on the degree of the harm that could render the defendant liable for injuries. This, is in spite of, the fact that there is no apparent cut that helps establish the end of causation and the beginning of remoteness. It is always the responsibility of employers to provide a safe working environment. The farm worker should sue the employer on such grounds. The employer should eliminate factors that deter the usual working conditions. What he should have done is counteract the increasing number of rodents and also eliminate the existing. The claimant did not expect the disease because it occurred unexpectedly. This is so because if he knew that he would contact a disease, he would have been more careful. Another case will be that of Mount Isa Mines v Pusey. This is a case of mental harm or injury. A foreman at a mine developed a disease due to depression. The depression resulted from the help he tried to give his two colleagues who were short-circuited. The common law of duty of care requires the mine to prevent such shocks. Theoretical basis was reasonable foreseeability. According to common law, there is no difference between cases of psychiatric injury and cases of physical injury (Mendelson, 2005, p. 5). In both cases, a reasonable foresight of the harm will probably determine the presence of a duty of care. The common law does not and should not limit the liability for damages for psychiatric injury. This is especially for cases where injury or harm is caused by sudden shock like in the case of Pusey (Mendelson, 2005, p. 6). Pusey’s case was sudden as he went into depression only after witnessing the occurrence that led to the passing away of his colleagues. Such other cases include where the claimant has immediate aftermath or perceived distressing phenomenon. The claimant should be entitled to worker’s compensation since the depression occurred while working for the company. References List Cane, P. (1997). The Anatomy of Tort Law. Oxford, United Kingdom: Hart Publishing. Commission for Occupational safety and Health. (2005). Guidance Note: General duty of care in western Australian workplaces. http://www.commerce.wa.gov.au/worksafe/PDF/Guidance_notes/general_duty_of_care.pdf. Harpwood, V. (2000). Principles of Tort Law. New York: Routledge. Mendelson, D. (2005). Modern Australian law of mental harm: parochialism triumphant, Journal of law and medicine, vol. 13, no. 2, pp. 164-172. Position Paper. (2002). Draft Civil Liability Amendment (Personal responsibility) Bill 2002. http://www.lawlink.nsw.gov.au/report/lpd_reports.nsf/files/report.pdf/$FILE/report.pdf. Quality lifestyle alliance, Inc. The worker’s duty of care. http://www.qla.org.au/PDFforms/Procedures/Duty%20of%20Care%20Procedure%20Mar07.pdf. Stewart, A. (2011). Stewart’s Guide to Employment Law. Falls Church, VA : Federation Press. Tunc, A and David, R. (1983). International encyclopedia of comparative law, volume 11, Part 1, Boston: Martinus Nijhoff Publishers. Read More