...Law Society of Western Australia – Personal Injury Law Update 8 October 2013 BULLYING AND PSYCHIATRIC INJURY; RECENT AND PROPOSED DEVELOPMENTS IN THE LAW Geoffrey R Hancy B.Juris(Hons), LLB(Hons), B.Ec(UWA), LLM(Melb) geoff@hancy.net www.hancy.net Introduction 1 My paper covers: 1.1 Amendments to the Fair Work Act 2009 (Cth) to allow the Fair Work Commission (FWC) to deal with bullying claims; 1.2 Recent court decisions on claims for damages for psychiatric illness; 1.3 The nature of a recognisable psychiatric illness. Fair Work Act 2009 (Cth) 2 On 28 June 2013 the Fair Work Act 2009 (Cth) was amended to incorporate, among other changes, express provisions addressing bullying in the workplace. 3 These provisions will come into operation on 1 January 2014. They are found in a new Part 6-4 B – Workers’ Bullied at Work (sections 789FA to 789FL). Bullying 4 A worker is bullied at work if one or more individuals repeatedly behave unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety: s789FD. Reasonable management action carried out in a reasonable manner is not bullying: s789FD. Not to be copied without the express permission of the author -2- Criteria for and orders that can be made 5 If the Fair Work Commission is satisfied that : 5.1 The worker has been bullied at work; and 5.2 There is a risk the worker will...
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...Torts Assignment PART 1 1) Does Autumn Bay High owe a duty of care to Persephone and Aphrodite? Consider the common law as well as any impact that the Civil Liability Act 2002 (NSW) may have on the common law. The main considerations that have to be taken into account when deciding whether Autumn Bay High owed a duty of care to Persephone and Aphrodite are the reasonable foreseeability of nervous shock and whether their duty of care was non-delegable. Under the Civil Liability Act 2002 (NSW) “the defendant owes a duty of care to the plaintiff if they ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognized psychiatric illness if reasonable care were not taken”. It has been established through Tame v New South Wales & Annetts v Australian Stations Pty Limited[1] that reasonable foreseeability of mental harm is a precondition of the existence of a duty of care. Taking the provisions of the Civil Liability Act 2002 (NSW) into account, the fact that the school is taking its students on a ski trip already establishes a general duty of care. It is reasonably foreseeable that such an activity poses the possibility of serious injuries if adequate supervision is not provided. In addition to this, it is not fanciful or far-fetched that witnessing a horrific physical injury to a fellow student can cause sudden shock and consequential mental harm to a person. While Aphrodite witnesses the actual accident, and sees...
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...Legal liability is the liability of a party imposed by a court for its actions or, in some cases, inactions, and for which the courts will award pecuniary damages as a form of redress. Negligence is the failure to exercise the required amount of care to prevent injury to others. For example, if you cause an accident that injures someone or damages their vehicle because you were driving at an unsafe speed, then you could be sued for negligence. In some cases, the law imposes absolute liability (aka strict liability) on specific parties without regard to fault, and, therefore, obviates the need to prove fault in court. For instance, manufacturers are held strictly liable for defective products that they manufacture. Sometimes, the law designates other parties as being responsible, whether they are or not. Imputed negligence results in vicarious liability, where the principal is responsible for the acts of his agents. For example, employers have vicarious liability for the actions of their employees Most cases of negligence cannot be determined absolutely, for it depends on many factors. The main measure used to determine whether an act was negligent is to consider what a reasonably prudent person would do, given the age and knowledge of the tortfeasor, and other relevant factors. Requirements for liability in the law of negligence Before a court will award damages, the presumed negligence must satisfy 4 requirements: 1. there must be a legal duty to perform or to use reasonable...
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...Q1 THE ELEMENTS OF A VALID CONTRACT A contract may be defined as an agreement which legally binds the parties. The contracting parties need to meet a number of requirements that are prescribed by the law of contract. These requirements must be met before the agreement creates rights and duties that may be enforceable at law. These requirements are referred to as the elements of a valid contract and consist of the following: Offer A contract is formed when an offer by one party is accepted by the other party. For example, Y offers to make and sell homemade cakes to X for sell in the local shop, and just before any agreement is reached on price, size or quantities X decides not to continue. At this stage, there is no legally binding contract between Y and X because there is no definite offer for X to accept until the essential terms of the bargain have been decided. An offer is not made for just a specific person. It may be made to a one or more, or to the whole country. Acceptance Acceptance occurs when the party answering the offer agrees to the offer, It can be verbal or in writing. Acceptance must be unequivocal and communicated to the offeror it’s not effective until this has been done. There are two requirements to satisfy for valid acceptance to occur: * The offeree must agree to accept the terms of the offer * This information must be communicated to the offeror. Consideration According to pollock "Consideration is the price for which...
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... A) The first lawsuit that Sebastian can bring against Poorich supermarket would be tort of negligence. The general principle of tort of negligence is, a person through his act or omission causes damage or injury to another person in situations where it was foreseeable. In the case of Sebastian, the manager of the Poorich supermarket owes Sebastian and his two sons a duty of care as a customer. The concept of duty of care generally known as the ‘neighbour’s principle’ is effectively established in the case of Donoghue v Stevenson. The legal principle of Donoghue v Stevenson is, in order for the plaintiff to sue in negligence he has to prove the four vital points which are, the defendant owes a duty of care to the plaintiff and the defendant did not take proper care which resulted in damage or injury to the plaintiff. Hence, in this case the manager of the supermarket breached his duty by negligently accusing Sebastian in front of a public for stealing and also labelling Sebastian as a cheat and liar without having any accurate evidence. Therefore, my recommendation would be that Sebastian may file a law suit against the Poorich supermarket for the negligence of the manager in handling the matter which is reasonably foreseeable that it caused Sebastian embarrassment and emotional distress. The second lawsuit that can be brought against the supermarket, would be trespass to a person. The three types of trespass to a person is battery, assault and false imprisonment. In...
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...Tort Law Assignment 2010/11 By Louis Rohr Student ID 10716461 1st year BCL Title: My Analyses on the Duty of Care in Irish Tort Law Tort law covers a wide range of wrongs committed by one person against another. Tort law covers those wrongs that arise because of a breach of a duty imposed by law, as opposed to duties imposed by contract. The first steps towards the modern doctrine of negligence was explained in Heven and Pender. Lord Esher discussed why a duty of care might be owed by one party not to injury another. First, that there must be duty of care owed. Secondly, that there is a breach of this duty. Third, that there must be loss or damage suffered. Fourth, that there is causal link established between the breach of duty and the loss or damage suffered. Later more fundamental elements were needed to prove negligence. Indermaur v Dames is a leading common law case outlining the duty of care involving invitees and invitors. An invitee is a person who’s invited by the occupier (owner or tenant) and provides a material advantage, such as shops, bars etc. When an invitee enters an occupiers land he is expected to take reasonable care on his part to prevent damage from unusual danger for which he knows or ought to know. Where there is neglect, the question is whether or not they took reasonable care or was there contributory negligence? From here, the common law developed other rules to ultimately determine liability for buildings and include inter alia, elevators...
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...licenses that are required for the job. * Job description should also include the essential and nonessential job functions. * If there is any legal discrimination required for the job they should be included in the job description. | * Job advertisements * When advertising wording is the biggest obstacle that needs to be addressed. * Try to use words like salesperson instead of salesman or energetic instead of young. * In job advertising the main objective is to promote your available position while showing an equal opportunity employer | * Job applications and interviews * Avoid unlawful questions by asking questions that are job-related. * Develop a standard set of questions that can be used in every interview. * Questions that pertain to experience or skills required | * Interviewing protocol * When starting an interview give the applicant some info on the job duties, hours, pay range, benefits, and career opportunities. * While interviewing avoid discussing sex, religion, politics, age, ethnicity, birthplace, or personal finance. These topics portray bad manners and some are illegal to discuss with an applicant. | * Testing * Testing is usually done pre-employment such as aptitude, honesty, medical and drug testing. * Testing is usually performed in...
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... | |Lecturer(s) |John Owen |Internal Verifier |Jonathan Cartmell | | |Michael Evans | | | | |Anuja Prashar | | | |Sources of information |Course notes. | | |Business Law Learning Media Ltd, London | | |LSST Connect...
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...people age 16 and older, and 6.9 percent had an employment disability (census.gov). When youth leave facilities were they have been groomed and ultimately institutionalized, they are stuck without skills that will help them obtain employment and be able to compete in today’s society. The research in this paper will explore the laws that protect those with disabilities and how they may be improved to provide them with equal employment opportunities. These youth put so much of their self-worth into having a job but are often discriminated against. Getting up and being involved in a working society puts forth an image of belonging as so many times in their past they have been shunned aside and made to feel inferior by those most important to them. Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability (eeoc.gov). The negative portrayal of those with mental disabilities is what habitually causes them not to obtain employment. Employers fear the unknown, they seem to only know what they’ve heard about the disabilities and are reluctant to hire. Americans with Disabilities Act...
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...COMPILATION OF CASE LAWS LAW OF TORT 1. DONOGHUE V. STEVENSON (1932) AC 562 On the evening of Sunday 26 August 1928, Mrs May Donoghue, boarded a tram in Glasgow for the thirty minute journey to Paisley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minghella, and May's friend ordered and paid for a pear and ice and an iced drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. May drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. On doing so, it was claimed that the remains of a snail in a state of decomposition plopped out of the bottle into the tumbler. May later complained of stomach pain, and her doctor diagnosed her as having gastroenteritis. She also claimed to have suffered emotional distress as a result of the incident. On 9th April 1929, Donoghue brought an action against David Stevenson, aerated water manufacturer Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defender. May had not ordered or paid for the drink herself, so there was no contractual relationship between May and the café owner. Tort law at this time did not allow for May to sue the café owner. There was a contractual relationship between him...
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...4 Negligence: duty of care Learning objectives At the end of this chapter you should be able to: • have an overview of the history of negligence; • describe the function of duty of care in negligence; • appreciate the way duty of care has been defined and developed; and • apply the principles of duty of care in the areas of omissions and liability of public bodies. 04-Bermin-Chap04.indd 42 2/6/2008 7:39:32 PM 4.1 Introduction Negligence began to be recognised as a tort in its own right around the beginning of the nineteenth century. Before that time, the dominating action for personal injury was the writ of trespass. Trespass was initially concerned only with direct acts, however, during the nineteenth century the focus shifted to the distinction between intentional wrongs (trespass) and the unintentional (negligence). As we have seen, negligence was originally described in terms of a duty imposed by law and thus it will be seen that duty is one of the three key elements of negligence today. Negligence evolved as a means of loss-shifting at a time when there was little or no insurance or state welfare provision. The industrial revolution in the nineteenth century brought with it increased risks of injury to those working in factories, mines, quarries, and other dangerous situations. The development of railway transportation and mass production dramatically increased the potential for many people to be affected by the faulty conduct of strangers, at the same time...
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...version has been developed to ensure compliance with Victorian law and to incorporate helpful contact information. Consultation with Victoria’s community services peak bodies and relevant government departments informed its adaptation. Please note: if your organisation provides homecare services you should also refer to the Victorian Home Care Industry Occupational Health and Safety Guide that specifically covers home maintenance, meals on wheels, respite, attendant care and personal care. COMMUNITY SERVICES OHS INFORMATION PACK Community services workers play a vital role in caring for our people and helping to maintain a quality of life expected in Australian society, often in challenging and confronting circumstances. The Victorian community services sector employs more than 60,000 people and many volunteers who are committed to providing services that enhance the physical, mental and social wellbeing of individuals. Community services work can be very rewarding, but it can also present challenges in delivering outcomes in a way that balances the rights of clients with the safety and wellbeing of employees. Nobody wants to be injured or otherwise harmed at work, but community services workers are often required to provide care or make decisions in an environment that can be hazardous. In Victoria in the past year there were more than 1,200 claims in the community services sector. Work related injury or illness sustained by employees were mostly due to manual handling, slips...
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...Always discuss coincidence (Thabo Meli, Royall) and BRD (prosecution, differs for offence and defence) Chapter 5 – Homicide: Murder and Involuntary Manslaughter 5.1 Patterns of homicide 423 Study by A.Wallace. 1968-81 * -relationship of victim to offender. * -homicide is a crime that is socially, historically and culturally determined. * -homicide comprises a variety of offenders and victims in different social settings. * -Homicide in NSW is largely interpersonal in nature, rather than instrumental or ideological. * -Majority of interpersonal killings involved intimates. * -Homicide patterns reflect cultural norms. * -homicide is spontaneous rather than premeditated crime. * -Homicide offenders exhibit a wide range of moral culpability. 5.3 Murder S18 Crimes Act (1900) NSW S 18. (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him, of a crime punishable by penal servitude for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. S 18 (2)(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall...
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...OF THE LITERATURE A - AN ADMINISTRATIVE NIGHTMARE, Deel, (1991) 1. A hidden type of abuse: a school leadership issue, Mitchell ( 2010) 2. Ethical or unethical? The Code of ethics of Georgia: a code to be followed. B. FAMILY RESPONSIBILITY 1. Physical child abuse: a cultural problem 2. Physical abuse vs. Discipline C - CHAPTER SUMMARY III- METHODS AND METHODOLOGY Method Sample selection Participants Instrument Implications for School Counselors and parents Results and Limitations IV- REFERENCES Child abuse in the U.S.A I – INTRODUCTION Introduction It has been said that children are our greatest natural resource. As such, children deserve care and protection to keep them from harm. This care currently includes thousands of professionals representing diverse disciplines such as medicine, law, social work, public health and education. Such diverse representation dedicated to this concern is indicative of the complexity of the problem of child maltreatment. Since the publication of The Battered Child in 1962 (Kempe et al), child maltreatment has been "on the radar" of these professionals who have endeavored tirelessly to research the causes of maltreatment and to initiate methods and systems by which children can be protected. Child abuse is more than bruises and broken bones. While physical abuse might be the most visible sign, other types of abuse, such as emotional abuse or child neglect, also leave deep, long lasting scars. Some signs of child abuse...
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... • Literal Rule There are three (3) principles of law that can be applied to interpret the law, where the Literal rule can be applied and if absurdity exist either the Golden or the Mischief rule can be used. The Literal rule considers the law as what it says where the natural meaning of the words are used for interpretation; this can be depicted in the case Regina v Barrymore where the defendant was charged with the offence of wounding with the intent to murder, however the learned magistrate of St John’s Magistrate’s court committed the defendant to stand trial on a charge of wounding with intent to do grievous bodily harm. The court however had no power to commit the defendant for any offence other than the offence with which he had been charged. • Golden Rule The Golden rule is an extension of the literal rule, giving either narrow or wide meaning to the law; the Narrow meaning can be exemplified in the case of Marilyn Spenser v the Attorney General (AG), where the appellants, members of the Executive of the Committee of the Hallelujah Square Tabernacle church submitted to the Attorney General (AG) articles of incorporation of the church as a religious non- profit organization. However, the AG rejected the request stating that a nonprofit company must be a commercial enterprise which is to be carried out without financial gain to its members. Wide Meaning on the other hand is used to give law a wider meaning, such as in the case of William Chaitam and Winston...
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