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RSK80004 Introduction To Risk And Due Diligence
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RSK80004 Introduction To Risk And Due Diligence
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Course Code: RSK80004
University: Swinburne University Of Technology
MyAssignmentHelp.com is not sponsored or endorsed by this college or university
Country: Australia
Question:
Give an Opinion as to Whether or not the Employer in the following example would be considered Negligent in providing a “safe place and/or system of work”.
A workman, Castro, injured his back resulting in a permanent disability when he slipped and fell while carrying a very heavy oxygen bottle (about 146 lbs) which he needed to use on site some 20 or 30 yards away. Castro had not been working as a member of a team and had been moving the oxygen on site without assistance during a period of two weeks he had been working there. Because of the nature of the site, it was impracticable to use a trolley to move the bottle. He was carrying the bottle across his arms, which were held in front of his body when he slipped and fell on his back, the bottle falling with him, and to one side of his body. The defendant stated the bottle was too heavy for a man to carry and that there were other workers on site who could have provided assistance.
Answer:Summary of the case
The case study involves a work man who is permanently disabled after an accident in the workplace. The man by the name Castro is injured in the process of working in the company. Castro carried a heavy oxygen bottle and slipped on the site. The site by nature is impractical to use a trolley to carry the oxygen bottle. Castro is involved in an accident that caused him permanent disability.
Analysis
Castro is the plaintiff on the case while Transfield (Qld) Pty Ltd is the defendant. The Company is being accused of negligence. The Company has the duty of care of it employees of ensuring the working conditions are safe. The company has neglected on the responsibility of duty of case of providing a safety working environment. This shows that the company bleached it duty to care for it employees. This negligence by the company has caused Castro permanent disability.
In this essay, I will use common law criteria to provide assessment of whether defendant is guilty of negligence. It will involve arguments for and against the guilt of negligence of the defendant.
Arguments for the argument for guilty of the defendant in this case will be assessed on the scope of common law as foreseeability, causation, preventability and reasonableness
Foreseeability
Castro had been moving the heavy oxygen bottle for two weeks while holding it on the front of his body. This indicates that the bottle was held in contact with Castrol’s body. The site by nature was impassable by trolley. The site location and distance explained in the case was not made passable by the employer. It shows that Castro was daring to go ahead and carry the oxygen bottle for the work to be done. Castro risked his life to ensure work progresses. The oxygen bottle was very heavy (146 lbs) to be carried by one person. The site also had other workers who could have assisted Castro to carry the bottle. The foreseability of this case is that it common knowledge to understand that such heavy load should be carried by several workers to reduce the risk of falling on an individual worker. Also the company should have used wide or common knowledge to prepare the site to be passable before starting to work on the project. Therefore, it can be said that the company failed in this case to be foreseeable of likelihood of a hazard happening in the site.
Causation
The cause of negligence in this case is based on the unsafe condition that was prevailing in the site of the workplace. The site was by nature impassable by trolleys thereby indicating that there was negligence to improve the site. The company did not make efforts to ensure that safety and healthy work place was provided to the employees. The company was aware that the Oxygen bottle was heavy to be carried by one worker in the site and did not request other employees to offer help. This shows that if the company would have taken precaution measures Castro would not have been injured by the oxygen bottle to get permanent disabled. The negligence of the company efforts in the site led to unsafe matter. Therefore, the company fails this test of causation of unsafe matter as result of negligence.
Preventability
The heavy oxygen bottle that injured Castro would otherwise be carried by several workers or another hydraulic machine. Castro carrying the bottle on front with his hands was risk taking that could be prevented or reduced by having several workers in the site help Castro. This would have prevented the severity of the accident. Also carrying the bottle as a team would reduce the chances of the accident happening. Another alternative to carrying the oxygen bottle would be using machines that would prevent handling by human body. This would prevent slipping and the accident that happened in the site. Lastly, the company would have stopped Castro from carrying the oxygen bottle until the safety measures are put in place. These conditions would have been made possible by making the site passable or having shared responsibility to carry the oxygen bottle. The company hierarchy of control should have been keen in formulating and implementing policies that would make the workplace safer for workers. This would have prevented the occurrences of the accident that caused Castro disability.
Reasonableness
This criterion of common law analyzes the balance between the balance of significance of risk and the efforts required to reduce it reasonably (Yip and Goh, 2017). Stopping the progress of the work could have reduced the occurrence of the accident since Castro would not have carried the oxygen bottle. Second, requiring other workers in the team to assist in the carrying of the oxygen bottle would also have reduced the risk significantly. Third, the company would have purchased or hired a machine to handle the oxygen bottle in the site. Fourth, the company would be involved in the preparation of the site to ensure that it was safe for working. This would involve making the site passable before starting working. Lastly, the company would have warned or made it known of the risky situation that is in existence in the site. This would have cautioned worker in the site about the hazards in the site. These reasons show alternatives that would have prevailed to prevent or reduce the accident that involved Castrol making him permanently disabled. Adopting these measures would mean that the company should have done or incurred the following; first, the company would have delayed the progress of the project awaiting preparation and modification of the site location to guarantee safety to workers. Second, the company would have to incur expenses in purchasing or hiring a machine to handle the oxygen bottle. Third, the company should have increased it supervisory role to ensuring that periodic assessment is carried out on the safety of the site and workers worked as teams to avoid or reduce risk from excessive pressure. The company could also have incurred expenses to put on safety signs in the workplace. Therefore, the company should have implemented either of these factors before to significantly reduce the risks that are associated with the task. This criterion show that the balance of significant reducing the risk was not reasonably considered. Individual workers in the workplace remained susceptible to hazards present in the site.
Argument Against
The argument against the defendant is aimed at disapproving the guilty of negligence of the defendant. It the company being proven innocent on the case of Castrol being injured to become permanently disabled after an accident in the workplace. The will involve a four common law criteria for an argument against the defendant.
Foreseeability
This entails the knowing of the occurrence of the incidence that injured Castrol. The prior events in the workplace indicate that Castrol had carried the same heavy oxygen bottle for two weeks without any help from his colleagues. This shows that the Castrol had carried the oxygen bottle severally before the incident occurred. From the case study, there are no complaining from either Castrol or worke mates about the working condition. This shows that despite the conditions being impassable it was bearable and the employees kept on working. There is no expert advice that is recorded on the regarding the condition of the work place where the incident occurred. From this analysis, there is no indication of foreseen risk in the work place. Employees were working for two weeks before the accident occurred. Castrol himself did not complain about the condition that he was facing while carrying the heavy oxygen bottle. Therefore, it can be said that the foreseeability of the hazard was cannot be supported by evidence.
Causation
Castrol slipped and fell while carrying the oxygen bottle. This indicates that the accident occurred to Castrol not as a result of negligence of the defendant but as an accident where the oxygen bottle fell on him. Therefore it was unseen accident that happened and not as a result of unsafe matter based on negligence of defendant. In addition, the plaintiff did not take any measure to reduce the occurrence of the risk while carrying the heavy oxygen bottle.
Preventability
This criterion involves alternative things that the plaintiff would have done to avoid the occurrence of the accident (Zhou, 2012). First, Castrol would have chosen not to carry the oxygen bottle if it was heavy for him. This would necessitate the company exploiting other meaning of carrying the oxygen bottle. Second, Castrol would have requested assistance from other employees in the team for assistance. This would mean that he would have been assisted to carry the heavy oxygen bottle. In this case, the heavy bottle would not have fallen on him causing the damage that it caused. Lastly, Castrol would have requested for advice from the supervisor on how to handle the heavy oxygen bottle in impractical passable site. This would have stimulated options for handling the heavy bottle. This would also stimulate need for formulating and implementing safety policies in the site. This would have generally improved the safety of the site. Therefore it can be said the alternatives in Castrol safety were numerous hence the plaintiff due care was neglected.
Reasonableness
The company needed to get a machine to handle the oxygen machine if the site was impractically impassable by trolley. This implies that the avoiding the risk would cost the company the amount of either purchasing or hiring a machine (Gregory, n.d.). Second, the company supervision should have mobilized the team to handle the task as a group rather than as an individual. This would ensure that efforts are shared and no particular time that a task can cause harm to an individual. Third, the company could also have prepared the area that was the site for the project. This would have included leveling and adding signs where there is high risk of accident occurrence. Also, the company could also have restricted Castrol from carrying the heavy oxygen by having site policies that restrict individuals from lifting weights behold certain mass. Putting in place these measure would mean that the company would have invested on risk and uncertainty assessment and other expenses that would have reduced the occurrence of the accident. The company would have lost work worth two weeks that Castrol put on progress by risking his life. The company saved expenses on risk management. The reasons in this criterion do not outweigh significance of the risk.
Conclusion
From the analysis of Castrol Vs Transfield (Qld) Pty Ltd indicate that the company (defendant) did not observe due diligence in relation to risks in the workplace. Therefore the employers have a duty of care to provide a safe and healthy working environment for employees. Also employees have a role to play in ensuring that they only work in safe, low risky and healthy environment.
References
Cumming, D. and Zambelli, S. (2016). Due Diligence and Investee Performance. Financial Management, 23(2), pp.211-253.
Gregory, D. (n.d.). Unsafe Workplaces, Injured Employees, and the Bizarre Bifurcation of Section 7 of the National Labor Relations Act. SSRN Electronic Journal.
NETTLE, G. (2005). ETHICS – THE ADVERSARIAL SYSTEM AND BUSINESS PRACTICE*. Deakin Law Review, 10(1), p.67.
Supplemental Material for Adversarial Allegiance: The Devil Is in the Evidence Details, Not Just on the Witness Stand. (2016). Law and Human Behavior.
Yip, M. and Goh, Y. (2017). Convergence between Australian common law and English common law. Common Law World Review, 46(1), pp.61-68.
Zhou, Y. (2012). Existential Level of Engineering Law and Its Characteristics. JOURNAL OF ENGINEERING STUDIES, 3(4), pp.375-383.
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