Tort Law: Negligence, Nuisance, Trespass and Occupiers Liability - Report Example

Media Report Analysis Name Professor Course No. Date Word Count 1,794 1. Identify areas of law addressed in the media report, and explain how they are relevant to the matters outlined in the media report. Taxation Law Taxation law played a prominent role in the media report because it involved the Australian Taxation Office, which had caused the issuance of a freezing order against the owners of the unfinished mansion. The tax liabilities of the Oswals gave the ATO, under taxation law, the authority to apply for a freezing order, and because of this, the Oswals are prevented from dealing in their property. Perhaps to run away from their huge tax liabilities, they have indicated the intent not to return to the country and just live abroad. Procedural Law Procedural law, particularly the Federal Rules Court 2011, is also an area of law that is indirectly touched by the media report. This is because it is only the court that could have issued the freezing order against the Oswals upon the application of the Commissioner of the ATO. A freezing order, also called the Manreva injunction, is defined as “an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets” (Rule 7.2(2), Federal Court Rules 2011). The danger that the court, and ATO in this case, seeks to remove is the flight of the parties with tax liabilities from the country. Tort Law: Negligence, Nuisance, Trespass and Occupier’s Liability Tort law was also implicated in the media report. A tort is defined as a civil wrong, as opposed to being a criminal wrong or crime, which may provoke a civil action compensable by damages. There are several types of tort, which includes negligence, trespass and nuisance. The tort of negligence occurs when the failure of a party to take reasonable care cause injury or harm on another (Latimer 225). In the media report, the potential to cause harm or injury to the youngsters is high because the mansion is left in such a state of disarray with many pieces of unused materials lying around that can cause possible danger to those who enter its premises. In addition, private nuisance is also implicated in the media story. There is nuisance when a party interferes with the right of the other party to the peaceful use of his land or property. This interference can come in the form of noise (EDOWA 2002). The media report mentioned that the people in the neighbouring houses of the mansion were disturbed several times with loud noise coming from the mansion when teen-agers used it for their wild parties. Trespass occurs when someone directly, intentionally or negligently and without the permission of the owner of a property, interferes, in any way, with that property. This seems to be case in the media report, where teen-agers, children and other persons entered the premises of the mansion without permission to hold their parties, to play or to simply linger in the premises. Under s 5 of the Occupier’s Liability Act 1985, a codified tort law, an occupier of premises or a party who is occupying or has control of that premises has a duty of care, in varying degrees, towards persons who enter that property, whether such person has been invited or not. This rule is implicated in the media report when it mentioned the state of disarray and disrepair of the mansion frequented often by young people and children. Insurance Law Insurance law embraces regulations and rules that govern the insurance industry and insurance contracts. Parties enter into insurance contracts to cover losses brought about by risks they take. The media report cited the local council as saying it was hoping ATO has sufficient insurance for third-party injuries because of the potential injury that the mansion’s state of disrepair would cause to many trespassers of its premises. Constitutional Law Constitutional law establishes and limits, amongst others, the powers of the government. Section 51 of the Australian Constitution allows the government to subject a property to eminent domain – the power to take private property for public use. The power of the government to impose eminent domain was touched by the media report when it cited the interviews of people who suggested that the government take over the property and use it for the good of the public. 2. Demonstrate how the law functions in these various ways, by reference to specific examples within the media report and the areas of law identified in question 1. • Ensures reasonable predictability in daily life One of the functions of the law in society is to make people feel safe in their homes, their neighbourhood, in the roads and in public places. Predictability makes people feel secure and this encourages the growth of businesses and the economy. The laws on negligence, trespass, nuisance, and occupier’s liability ensure people that they can expect relative safety wherever they go because there are laws that obligate certain people to observe duty of care in the conduct of their activities. These laws give parents of teen-agers and children who frequent the mansion a sense of security that that their children will be free from injury and harm. • Encourages and discourages certain conduct Taxation law ensures that people pay their taxes religiously and that the government has constant source of revenues to sustain and maintain its operations, such as in the delivery of basic services. The power of the government, under taxation law, to impose penalties on violators discourages most people from violating the law. In the media report, the Oswals were forced to flee from Australia and live abroad abandoning their multi-million property. They were not able to dispose it because the government froze it for their failure to settle their tax liabilities. Others who are thinking of evading their taxes will think twice knowing that they will lose power over their assets in the event the government flexes its power against them. • Grants rights and powers to individuals and groups of people The law exists to provide mechanism to redress grievances. The law on nuisance, for example, allows people to assert their right to be happy and peaceful within their homes. They know that if others intrude on their rights, they can resort to the strong arm of the law to stop others from infringing on this privacy and peace. The people in the neighbouring area of the mansion, for example, have expressed disgust over loud parties that disturbed them even in the wee hours of the morning. The law allows them to assert their right by calling on the police to stop loud and wild parties or petition the court to close the property from trespassers who disturb their peace. • Imposes obligations on individuals / organisations to meet their legal responsibility Some laws impose the duty of care on certain individuals, who have been identified to be engaged in activities that can affect a large segment of society or when many people or innocent people rely upon them to ensure their safety and security. The Occupier’s Liability Act ensures that whoever has control over the unfinished mansion, which may fall in the hands of ATO, will have the responsibility of ensuring that it is safe from people who frequent the place. • Allows for the enforcement of recognised rights and duties Laws, such as that on trespass, give the property owner the right to exclude people from his property. His right over his property is, therefore, enforceable as against others. In the media report, the Oswals can enforce their right over their property by calling on police authorities to keep strangers out of the property and when trespassers persist can resort to court action to enforce their right and sue for damage to their property, if applicable. • Provides remedies when an injustice has been done When a party upon whom the law has obligated to observe the duty of care, did not meet that obligation, the party injured as a consequence of that neglect can go to court and sue for \damages. In the media report, if the state of disrepair and disarray of the mansion causes any injury or harm to anyone, the latter can go to court to sue the party who has control over the property. 3. By reference to the legal issues contained in the chosen media report, explain why it was important for the relevant party/parties to know the law in the circumstances? How did, or could, the party/parties have applied the law to their advantage? It is important for the parties to know the relevant laws because it provides an opportunity for them to know and understand their respective rights. The neighbours, for example, need to know that they have the right to sleep soundly at night free from the disturbance coming from loud noise. If they had known this, they would not have hesitated in calling police assistance to drive away teen-agers who entered the mansion as if it were a public place. The Oswals should also know that under the law, they have obligations and rights over their property. It is their obligation to keep the mansion safe even from trespassers and their right to keep trespassers out of it. They should have known that their failure to observe their obligation under the law open them to certain liabilities. On the other hand, ATO should have known that in the absence of the Oswals, who are not intending to return to the country, obliges them to take over the management of the property. They should be aware that a duty of care is imposed on the party who has control of the property under the Occupier’s Liability Act. and since the Oswals do not intend to return to the country, it is upon them to keep the mansion and its premises safe. On the other hand, parents have the right to know that their children are safe. They have the right to ask the owners to keep the mansion tightly sealed to keep their children safe. 4. How do the media influence public perceptions about the law and its administration? How might public pressure impact legislators and judges in establishing the law? The power of the media to influence the perception of the public has always been known. The power of the media is not confined alone to its possession of the platform to inform the public, but also in its ability to choose what to inform the public of. These factors, therefore, give media the power to shape public debate and to steer the public’s focus of attention. Research show, however, that this is not an absolute power, but is more nuanced, especially now that the internet is taking the world by storm (Priest 2011, 151). Nonetheless, many people still watch television, read newspapers and listen to radios. Thus, if the media decides to pick up a specific topic in law and administration, the public are exposed not only to the subject, but also to the way media presents it to them, and probably eventually accepting or adopting media’s own view of the subject as gospel truth. Media has, thus, the power to gather public support, in a subtle way, for a specific political cause. Once the public is hooked to the idea that a certain stand is the ‘right’ stand, the public can, in turn, pressure legislators and the judges to take a certain stand through demonstrations, lobbying, and other similar activities. References Federal Court Rules Latimer, Paul. Australian Business Law 2012. CCH Australia Limited. McDonald, Kim. 2014. “Call to monitor party mansion.” The West Australian. January 8. Occupiers' Liability Act 1985. Priest, Susana Hong. Nanotechnology and the Public: Risk Perception and Risk Communication. CRC Press, Sep 12, 2011 Read More