The University of Newcastle
LEGL6004: Law for Workplace Health & Safety 2018
Due Date: 16 November 2018 (5PM)
Answer each of the following 9 questions. The word limit for this assignment is 2,250 words.
N.B. This is a maximum word count. Any words beyond the word limit will not be assessed. The word count does not include footnotes. A bibliography is not required. It is up to you to determine how many of your 2,250 words you use in answering each question.
1. Fingal is an employee of Pome Processing Pty Ltd in Sandgate, NSW. His primary duty is the sorting and grading of various pome fruits on a slow moving conveyor system. Donnan is the owner and manager of Pome Processing Pty Ltd. He arranges for Tadhg, an independent contractor, to ensure all machinery at the worksite is safe and in good working condition. The conveyor belt is supported by rollers. As the conveyor system is quite old, workers are instructed to grease the rollers which support the conveyor belt whenever the warning lights are switched off. This indicates that the conveyor belt has completely stopped moving. One day, Fingal is sorting fruit when he notices the rollers are in need of a good greasing. Once the warning lights are switched off, he reaches under the conveyer belt and gets to work. Without any warning, the belt suddenly begins to move again and Fingal’s arm is caught between the belt and a roller. His skin is torn off from his wrist to his elbow, and he sustains a broken arm. Is Fingal likely to succeed in a negligence action against Pome Processing Pty Ltd?
2. Fingal’s lawyer advises him that he can also bring an action for Breach of Statutory Duty on the grounds that Pome Processing Pty Ltd has failed to comply with its duties under the Work Health and Safety Act 2011 (NSW). Is Fingal’s lawyer correct?
3. Fingal takes time off work whilst his arm recovers. He is unable to stop thinking about the incident which led to his injury, and is diagnosed with a recognised psychological injury. Fingal is unable to return to work, even after his arm has healed. Is Fingal likely to succeed in a negligence action against Pome Processing Pty Ltd in relation to this injury?
4. Cinead is also on site on the day of Fingal’s injury and suffers nervous shock upon witnessing Fingal’s arm become caught in the conveyer belt. Cinead is clinically prone to suffering mental harm. Will Cinead succeed in a negligence action against Pome Processing Pty Ltd?
5. Athdara packs fruit into boxes and delivers these to supermarkets around the Newcastle area for Pome Processing Pty Ltd. Athdara has signed a contract which describes her as an independent contractor. She has not, to date, received any specific instruction from Pome
Processing Pty Ltd about how to carry out her duties. She is required to
wear a Pome Processing uniform and does not work for any other fruit processing company. During her first week on the job, Athdara received a booklet titled ‘Expectations of Pome Processing Employees’. One day, Athdara decides to see how many boxes of fruit she can stack on top of each other. She manages to stack the boxes 2.5 meters high, and as she is admiring her work, the stack of boxes falls on top of Padraig, an employee of Pome Processing Pty Ltd. He is crushed under the weight of the boxes and sustains six broken ribs and a spinal fracture. Athdara is temporarily suspended. On what basis can Padraig bring an action in negligence against Pome Processing Pty Ltd in relation to Athdara’s conduct? In answering this question, you may assume the elements of negligence are established.
6. Can Padraig recover damages for his pain and suffering? What about for his loss of weekly earnings?
7. It is soon revealed that Padraig has an unknown microbial condition that is irritated when he is crushed by the fruit boxes. As a result, his entire leg needs to be amputated. Pome Processing Pty Ltd argues that it cannot be held liable for damage resulting from Padraig’s unknown condition. Is this correct?
8. Pome Processing Pty Ltd often runs tours of the factory for interested members of the public. Individuals on the tour are provided with a variety of free fruit samples. One afternoon, an elderly gentlemen touring the factory drops his half-eaten pear onto the floor. Beitidh, an employee of Pome Processing Pty Ltd, slips on the pear and falls onto the conveyor belt. Her foot becomes caught in a pinch point where the conveyor belt comes together, and four of her toes are instantly amputated. Pome Processing Pty Ltd argues that causation cannot be established. Is Pome Processing Pty Ltd likely to succeed in relation to this argument?
9. During the course of the trial, it is revealed that Beitidh had been running when she slipped on the pear and fell into the conveyer belt. Running in the factory is strictly prohibited by Pome Processing Pty Ltd, and all staff have received comprehensive training which makes this clear. Is a court likely to find that Beitidh contributed to her own injury?
Assignments must be submitted to Turnitin in Microsoft Word format or using similar word processing software (not as a PDF document). Since you will not be submitting a paper copy of your assignment, in lieu of the usual assignment cover sheet you should ensure your paper has a title page which includes the word count, and the academic integrity declaration which is set out below. You should read the declaration carefully and ensure you understand what you are declaring before including it on the title page of your assignment.
I declare that this assessment item is my own work unless otherwise acknowledged and is in accordance with the University’s academic integrity policy available from the Policy Library on the web at https://www.newcastle.edu.au/about-uon/governance-andleadership/policy-library/document?RecordNumber=D09_1899P
I certify that this assessment item has not been submitted previously for academic credit in this or any other course. I certify that I have not given a copy or have shown a copy of this assessment item to another student enrolled in the course.
I acknowledge that the assessor of this assignment may, for the purpose of assessing this assignment:
• Reproduce this assessment item and provide a copy to another member of the Faculty; and/or
• Communicate a copy of this assessment item to a plagiarism checking service (which may then retain a copy of the item on its database for the purpose of future plagiarism checking). • Submit the assessment item to other forms of plagiarism checking.
You can expect to do well in the assignment if you: (i) demonstrate you have developed detailed knowledge and critical understanding of the body of law which governs common law actions for workplace injuries, including contemporary developments in relation to this body of law; (ii) construct logical and persuasive arguments about how the law relevant to those issues (including cases and legislation) might apply to given fact scenarios; (iii) in the process of setting out these arguments, demonstrate skills in statutory interpretation and an ability to identify relevant facts and connect these with similarities and/or differences with the facts in applicable case law to suggest how key legal issues might be determined; (iv) demonstrate an understanding of the factors a client would need to weigh in determining whether or not to pursue legal action in relation to given fact scenarios; and (v) write clearly and concisely and structure your answers in a logical way.