ATMC BUS203 BUSINESS LAW AND ETHICS
QUESTION
Jack is a builder who works on a building site in Maroochydore. Jack is a bit lazy and one day, in a hurry to leave early from work, he forgets to erect barriers around that part of the building site that adjoins the street.
Colleen, a mother of three, has parked her car near the building site. After a full day of shopping at the sales, she returns to her car carrying parcels in her arms that obscure her vision. She does not see that building material has spread out on the street from the building site and she trips, falling heavily and breaking her leg. A passer-by calls for an ambulance. The ambulance arrives and takes Colleen to hospital.
Colleen is in hospital for six weeks and unable to work at her full- time job as a Child Care worker. After leaving hospital she had to attend a physiotherapist for exercises to strengthen her leg, which cost $120.00 per session. Colleen does not have private health cover. She has had to attend twice a week for the past 12 weeks. She has also been back to work only part-time as her leg becomes too sore if she is on her feet for more than 4 hours per day. Collen’s mother has been helping her at home with the children.
Colleen comes to you for advice. She wishes to sue Jack in negligence.
Answer the following questions:
- Did Jack owe Colleen a legally recognisable duty of care at the time of the incident? (15 marks)
- If Jack owed Colleen a duty of care, did he breach that duty of care? (20 marks)
- Could Colleen prove the element of damage in an action in negligence against Jack? (10 marks)
- What defence, if any, could Jack raise against Colleen? How would proof of a defence affect Colleen’s claim? (15 marks)
- What remedy could Colleen claim against Jack? (5 Marks)
Business Law and Ethics: Duty of Care
The case has noted Jack working as a builder who might be charged with breach of duty of care. According to the case, Colleen broke her legs due to his negligence. One day, Jack couldn’t erect barriers in the part of the building that connected with the street. Later, Colleen had to take vacations from his full-time job, and she could be joining the job as part-time after many days. She had to join physiotherapist lessons that cost her $120 per session. Now, Colleen is going to sue Jack for negligence, and it seems that she has a strong case. The following contains advice for her.
1-Did Jack owe Colleen a legally recognizable duty of care at the time of the incident?
It is first essential for Colleen to know whether Jack owes her a legally recognizable duty of care at the time of the incident. The answer to this question can make or break for the intention of Colleen. First, it is useful to consult about the duty of care. If it establishes that Jack had to provide the duty of care, it makes Colleen’s case strong.
The law of torts can help Colleen here that she can prove a recognizable duty of care at this point. There is the issue of negligence in performing duty on the part of Jack. The legal principle of duty of care states that a person should work rationally and cautiously. Everyone should act for the benefit of society and others. It does not mean that he has to do some welfare work or any philanthropist activities. It means that the actions of a person should not cause harm to another person. Proper caution on the part of a person is essential. For instance, a manufacturer of a product should guide the customer about using the product. It can include precautions about the side effects of the product. In case, the customer gets injured or harmed after using the product, and there is no guidance, it can cause negligence in the duty of care. However, the manufacturer might not be liable for any harm if the customer uses the product for a purpose other than written on it (Banich, 2012).
In the given case, Colleen can sue Jack on the grounds of duty of care. He had an obligation to erect barriers around the part of the building that connects it to the street. He had the duty of care here because his job could cause benefit or harm to others. One might say that it was not his job to protect others, but it cannot be proved under legal principles. Legal principles of duty of care mention categorically that a person cannot cause harm to others because of his actions. Here, he had the responsibility of doing the right being at the job. He omitted an activity that resulted in the spread of building material on the street. It was negligence, and his action makes him responsible under the recognizable duty of care (Lubben and Darnell, 2006).
2-If Jack owed Colleen a duty of care, did he breach that duty of care?
It is established at the above that Jack owes Colleen as he neglected the duty of care. Once it is established, now it is evident that he did breach that duty of care. For evidence, legal principles of duty of care can guide Colleen, who is seeking advice here. Here, courts may seek arguments from Colleen to prove Jack has breached the duty of care.
It is the most significant part of the case because it is beyond saying that Jack owes Colleen. Here some legal principles should be in the knowledge of Colleen. The first and fundamental question can be regarding the foreseeability of harm. The court would ensure to confirm that Jack could foresee the damage. It is a fundamental part of the case because he would be liable in the case when he could foresee the harm. Another legal principle vital here is the deviance from the standard. Even if Jack could not foresee harm, he should be aware of deviance from the standard. It is obvious that standard practice keeps a person safe from injury and harm. Another legal principle that can be before the court would be to confirm that the defendant could select suitable or viable alternatives. These legal principles note that the defendant must know the repercussions of his actions because they can cause harm or benefit for others. It means that a person could only be held responsible and personally liable if his actions are essential to this extent (Velasco, 2015).
Here, Jack was at his routine job that included the erection of barriers. These barriers made the street safe from unnecessary material. Jack must know the purpose of these barriers. There was building material in large volumes on the building site. Building material consists of different components of small and large sizes. The erection of the barrier was aimed at material not to spread. It was also the part of the standard that Jack had to perform this task. He violated the standard too.
Moreover, he could not adopt an alternative course of action that could show his carefulness. Government regulations and legal principles call for taking stringent and careful measures to keep the building site safe. There are special protection requirements for workers and prudent standards for keeping equipment and materials in order. It was not the case that was followed by Jack (Loi, 2010).
The above legal principles and Jack’s response make substantial evidence to confirm that he breached the duty of care. He neglected and let things got worse to cause harm to the passer-by. It was, unfortunately, Colleen alone who had to face severe outcomes of negligence and lack of observation of duty of care from Jack. There is no justification for him as he had breached the duty of care.
3-Could Colleen prove the element of damage in action in negligence against Jack?
Colleen could prove the element of damage in action in negligence against Jack. The case falls under the category of low likelihood and high seriousness of the harm. This legal principle is worth understanding because it would help Colleen take guidance in her claim. The principles state that the severity of the injury can make the defendant liable personally. The harm caused to Colleen indeed had a low likelihood, but the seriousness of harm was high. It might be possible that any other person could not break her legs due to the spreading of building material. However, it happened, and it caused severe harm to the applicant. Therefore, she can prove the element of damage. The likelihood of harm could also be higher here because the spreading of building material must cause disruptions and harm. It was likely that any passer-by could face injury due to spreading the material. But it was low in likelihood. However, now the seriousness of harm makes him liable for taking actions to meet requirements for Colleen (Harding-Farrenberg and Donovan, 2013).
So, the advice for Colleen is that she can prove the element of damage. There is negligence on the part of Jack, and he neglected an action of high seriousness. The building site falls under his responsibility, and he could not fulfill the obligation. The duty of care and negligence is related to legal principles. Neglect makes the duty of care severer because adhering to standard practice could not cause the issues. However, the severity of negligence may vary as it is in this case. It has high serious and low likelihood, but the case for damages is strong. Jack will have to pay damages because Colleen has paid enough for his carelessness and negligence. The case of “The Wagon Mound No. 2, 1967” could be given to support Colleen’s claim (Walter, 2012).
4-What defense, if any, could Jack raise against Colleen? How would proof of a defense affect Colleen’s claim?
Jack could raise the argument that the likelihood of harm was low. A low probability of injury could make him safe because the court can get him free of charge of negligence. It is a valid argument on the part of Jack because it could be one of the few options to get free. A low likelihood of occurrence of any harm is a wise stance because a person could not predict such actions. It was the mistake of Jack, and he can insist on considering it a mistake merely. It was not a deviance from standard practice or duty of care. Moreover, this argument also brings it closer to the argument of foreseeability (Loi, 2010).
Jack could defend his position by considering that the harm was not foreseeable. Colleen broke her leg, and any person could have foreseen such a level of harm. The injury might be of different forms ranging from low level to high level. Breaking one’s legs falls under the category of high-level injury because of severe consequences, and one cannot foresee it. The court can acquit the defendant on these grounds. It is a substantial possibility that the court would make him free of charge only because of a lack of foreseeability. An employee is unable to consider every possibility and consequence of his actions because it might not be part of his job description (Palmer, 2012).
Another defense that can be raised by Colleen is a lack of carefulness of Colleen. She broke her leg because she did not take precautionary measures. She should have been careful in her actions and walked in the street. It was a severe case that caused her such loss. There was not any other incident of the same consequences that makes the case person specific. So, Jack might say that he admits his mistake, but it is a subjective case related to Colleen only. He could inform the court about the ground situation to present proof that Colleen could have avoided fate (Harding-Farrenberg and Donovan, 2013).
The defense by Jack could affect Colleen’s claims, though, and there was little chance of it. He could establish foreseeability legal principles that could benefit him. He could also state that he did not move away from standard practice. As a result, the court cannot offer damages to Colleen because it was her mistake not to be able to avoid the harm. It can be considered a person-specific and subjective case that should be resolved in this way. He might say that there is no relationship between him and the injured one because it was only by mistake (Lubben and Darnell, 2006).
5-What remedy could Colleen claim against Jack?
The above discussion has substantial proof that Colleen can win a remedy against Jack. He practiced in negligence, and it caused harm to Colleen. The remedy available to Colleen is in three forms. First, she claims to have compensatory damages because he lost his earnings. She had to take time off from his permanent job. She could not go to work and had to choose a part-time job status. Therefore, she can claim compensatory damages to make the difference. She is also facing medical expenses, and compensatory damages should include them too. Medical and other expenses could include incurred and future expenses for her treatment. The third claim makes greater scope for damages under which she can claim for recovering money from the loss of enjoyment and felt pain and suffering (Velasco, 2015).
Conclusion:
The advice for Colleen concludes that she should go to claim damages from Jack because hse had substantial evidence and proof to establish a breach of duty of care. Jack committed negligence, and it caused her to suffer a lot. She had to take time off from her job and had to incur medical expenses. She had to suffer pain and grief. Therefore, she should knock on the door of the court with full confidence because legal principles would support her case. The advice recommends filing the case for claiming damages against Jack.
References
Banich, T.G. (2012) ‘Graham-Leach-Bliley Act Imposed Duty of Care to Protect Customer’s Confidential Personal Information but Did Not Impose Duty of Confidentiality’, The Banking Law Journal, vol. 129, no. 5, pp. 472-499.
Harding-Farrenberg, R. and Donovan, K. (2013) ‘Case Note: Duty of Care, Rating Agencies and the ‘Grotesquely Complicated’ Rembrandt: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5)’, Business Law International, vol. 14, no. 2, pp. 185-195,103.
Loi, K.C. (2010) ‘Mortgagees Exercising Power of Sale: Nonfeasance, Privilege, Trusteeship and Duty of Care’, The Journal of Business Law, no. 7, pp. 576-598.
Lubben, S.J. and Darnell, A.J. (2006) ‘DELAWARE’S DUTY OF CARE’, Delaware Journal of Corporate Law, vol. 31, no. 2, pp. 589-630.
Palmer, K. (2012) ‘Local authority liability in New Zealand for defective homes’, International Journal of Law in the Built Environment, vol. 4, no. 3, pp. 203-216.
Velasco, J. (2015) ‘A Defense of the Corporate Law Duty of Care’, Journal of Corporation Law, vol. 40, no. 3, pp. 647-703.
Walter, S. (2012) ‘A Fracking “Nuisance”‘, Environmental Policy and Law, vol. 42, no. 4/5, pp. 268-273.
