construction contract low
Mo7amed
Lawoftorts-NegligenceandNuisancepptx20191.pptxLaw of torts ( wrongs)
Source of law.
The common law and statutory law
An additional way you could summarise the building contracts clauses
A reminder of the Supervisor in AS2124-1992.
AS 2124. clauses.
8.1 discrepancies.
23. Honestly
Must comply with the supervisors directions.
30.3
33
34
40
46.2
47.
Note as defined in 44.2 (e) a substantial breach is “ failing to comply with the direction of the Superintendent under Clause 30.3, in breach of clause 23”
Question 4.
One of the basic requirements of any person is that they achieve the standard of care in the conduct of the personal and profession life that a reasonable person would in those circumstances.
Another requirement is that when doing activities on a property that there is no creation of a nuisance as defined in the law of tort.
By question is-
1. Discuss and explain the elements of the tort of negligence and nuisance.
2. Discuss the principals of negligence as they are applied in the OH & S legislation.
3. Review AS 2124 and discuss where the doctrines of negligence and nuisance are referred to.
Torts
Negligence.
Negligent misstatement.
Nuisance.
Defamation.
Occupiers Liability.
Trespass.
“Occupational Health and Safety Legislation”.
See p 125. “ There is no definable body principles… .
Negligence and Nuisance.
Check the standard form contracts for provisions that that embody these terms.
Extract from textbook p.134
“A tort may be described as a civil wrong. It may also be said to be a liability arising from a breach of a legally recognised duty owed to people generally. There is no definite body of principles which apply to all Torts as there is with the law of contract. It is therefore more convenient to consider the different Torts and the rules which apply under separate categories”.
Extract from textbook page 135
“The law of torts is generally found in the common law. There are, however, statutes that impose liability, for example Occupational Health & Safety legislation, and others, such as the defamation acts which regulate entitlements.
All states and territories now have legislation that to varying degrees limits the circumstances in which a person may be liable in negligence and that person’s liability to pay damages.”
See Wrongs Act 1958 (Vic) for the raft of statutory reforms which limit when there is a duty of care, when there is a breach of the duty of care and when and what damages are payable
A mistake on the part of the builder could give rise to civil actions in negligence and prosecution in OH&S
The same act may be both a tort and a crime, in which case the “tortfeasor” is liable to be prosecuted criminally by the police and to be sued separately in a tort action for damages. The most common of such cases are those arising from motor accidents. In the construction context accidents on building sites often lead to a prosecution of the contractor for a breach of workplace health and safety laws and separate proceedings in tort by the employee injured as a result of the employer’s negligence which caused the accident.
Extract from the textbook page 137
“Negligence is the tort which has the greatest impact upon construction activities. From being generally regarded as merely an element in fixing liability, it has become the main independent basis of liability in the law of torts. Moreover, negligence remains an element for liability in other torts such as nuisance.
The term may also form part of an element in a cause of action in breach of contract, to describe a breach of an implied duty or implied level of competence in the execution of the contractual duties
Growth of negligence.
“Perhaps the greatest common-law development in the last 80 years has been in the area of legal duties owed by an individual in the liability of an individual for her or his negligent acts which cause injury or loss to others. An immense body of case law has been created by judicial decisions extending and refining the principles which apply in the area of law called negligence.
The legislative intervention in all states and territories under so-called tort law reform of proportionate liability introduced over the last decade has modified those common law rights to a significant degree”.
See the textbook page 25.
Also see textbook page 166 footnote 168
Also see textbook page 169 for the impact upon commercial arbitration.
There are lots of examples of negligence that can lead to a civil lawsuit. For example:
Property owners who let steps to their house crumble and leave a railing unrepaired could be considered negligent if they invites friends over to their house and their friends trip on the railing and steps and hurt themselves.
A restaurant owner who mops the slippery floor and doesn't put up a "Wet Floor" sign could be considered negligent.
A store that knows things get really out-of-control on Black Friday and who hosts a big sales event, encouraging a mob scene with no security, could be considered negligent.
A doctor who operates on the wrong patient or on the wrong body part because he or she misreads the chart could be considered negligent.
A company that releases a dangerous drug without fully testing the medication and identifying all of the side effects can be considered negligent.
A driver who runs a stop sign and who drives well over the legal speed limit can be considered negligent.
A person who owns a dog that he knows is dangerous and who takes the dog to the park where the dog bites a small child could be considered negligent.
An employer who fails to follow OSHA guidelines and other workplace safety rules can be considered negligent (although not necessarily subject to a lawsuit because of workers' compensation rules).
A lawyer who doesn't really know how to prosecute a case but who takes the case anyway and doesn't adequately represent the client can be considered to be liable for professional negligence.
See p. 137 of the PTB
The scope of tortious liability, particularly in the tort of negligence, continues to extend to areas where previously no duty was thought to exist. The decision of the High Court in Bryan v Maloney, in which the builder of a dwelling house was found to be liable in negligence to a subsequent purchaser, represents a high watermark in the expansion of the categories of tortious liability. The decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd13 placed substantial limitations upon such a cause of action.14 The most recent decision of the High Court in Brookfield Multiplex Ltd v Owners Corp Strata Plan 6128815 in effect precludes recovery by subsequent purchasers of non-residential property.
Elements of Negligence. Cause of Action
1 The existence of a duty to care.
2. A breach of that duty of care.
3. A breach that caused damage.
a) The damage was caused by the breach.
b) The damage is not too remote but proximate.
WRONGS ACT 1958 - SECT 48
General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(3) For the purposes of subsection (1)(b)—
Concise answer to part of question duty of care
1. Introduction.
The tort of the law of negligence is comprised of three elements duty of care, breach of duty of care and damages.
2. Duty of care.
a) The establishment of negligence.
The landmark case which established negligence as a cause of action in Britain was Donoghue v Stevenson (citation). This persuasive authority was established as precedent in the Australian court hierarchy in Grant v Australian Knitting Mills ( citation).
b) At common law on all circumstances gives rise to a duty of care.
While there has been considerable and significant growth in the law of negligence not all cases of harm give rise to a duty of care. See Sullivan v Moody (citation). See attachment 1.
c) There is considerable list of precedent cases establishing a duty of care
With the growth of negligence there are considerable precedent cases where facts had given rise to a duty of care. See Modbury Triangle Shopping Centre Pty Ltd v Anzil (citation). See attachment 2.
{ provide a list of precedent cases where there is recognised duty of care}
d) Some fact situations come before the court a novel.
In the Caltex Refineries Pty Ltd V Stavar ( citation) the Court of Appeal of the Supreme Court of New South Wales established criteria used to determine if there was a duty of care novel case. See attachment 3.
While the list is not an exhaustive list and not all of the list needs to be present to establish a duty of care list that was set out in the Caltex Refineries case is (list the criteria)
Some of the more important considerations are the vulnerability of the plaintiff and the reliance of the plaintiff on the defendant.
3 Some of the reforms coming out of the Ipp report.
a) Section 48 of the Wrongs Act 1958 summarises the common law principles duty of care. See attachment 4
b) The Wrong Act 1958 removed liability for negligent acts caused by good Samaritans and volunteers. See section 31B and section 37. See attachment 5
Breach of duty of care
3. The various factors to consider how a reasonable person would respond to risk.
a) The probability of risk of injury- add case or cases
b) The gravity of the harm- add case or cases
c) The burden of eliminating the risk-add case or cases
d) The utility of the defendant’s conduct-add case or cases
4. Some relevant statutory tests.
a) Standard of care professionals. Refer to the relevant act and section
b) The exception to the peer professional test.
c) The duty to warn.
d) Where the defendant is under the influence of intoxication or preforming an illegal act.
a) to c)- Refer to the relevant act and sections.
HOW YOU NEED TO DECIDE WHAT CASES AND SECTIONS AND JOURNAL ARTICLE YOU ARE GOING TO ATTACH.
CASE LAW –HEADNOTES ( HIGHLIGHT THE IMPORT PART OF THE RATIO DECIDENDI IN THE HEADNOTE AND WITH SOME CASES GO TO THE JUDGEMENT AND HIGHLIGHT AN IMPORTANT PART.
18
Elements of private nuisance
1. There are 2 types of private nuisance.
a) Where there is an escape of material or things which caused damage to another person’s land or property on that land.
b) Where there is substantial or un-reasonable interference with the enjoyment of another person’s land or property.
See pp. 149 and 150 of the PTB
The tort of private nuisance protects the right of a person to the use or enjoyment of land and property which that person owns or occupies or in which that person has an interest. There are two types of private nuisance.
The first type occurs when a person allows the escape of materials or things such as water, trees or even pieces of masonry, onto the land of another, which causes material damage to that land or property on that land. A plaintiff’s cause of action is made out on proof of material damage to property that the plaintiff owns or occupies or in which the plaintiff has an interest, and proof that the damage was reasonably foreseeable.
The second type occurs where there is a substantial or unreasonable interference with the enjoyment by another of their land or other property onhat land through excessive noise, vibrations, dust or smells. Whether the interference is unreasonable is a question of degree: a continuing interference with the enjoyment may be unreasonable, even if that interference is slight; likewise, an isolated deliberate act or an irregular unintended occurrence may give rise to an action for private nuisance, if that interference is considerable: see Halsey v Esso Petroleum Co Ltd;88 and Owners of Strata Plan 4085 v Mallone.89
Nuisance caused by escape of materials or things.
The mental element is reasonable foreseeability.
“with a nuisance occasion material damage to the plaintiff’s property, the reasonableness of the use of the defendant’s property and the actual consequences of the defendant’s actions are important considerations.”
See textbook page 149
Nuisance where there is substantial or unreasonable interference with the enjoyment of another’s land
For our purposes I think we can accept that the mental element for substantial or unreasonable interference with enjoyment is negligence.
That is that there is a duty of care not to cause nuisance that the contractor
Who is under a duty of care in the building industry
1. Principal.
2. The contractor-see AS 2142-1992 clauses 15 to 16. Also look at ABIC and PC contracts.
3. Experts.
4. Sub contractors.
5. Local authority- for advice.
As 2124 Risk
Reference to negligence and nuisance.
Clauses .
15
16
17
18
See AS 2124-1992
15. Protection of people and property.
Insofar as compliance with the requirements of the contract permits, the contractor shall
(a) provide all things and take all measures necessary to protect people and property
(c) prevent nuisance and unreasonable noise and disturbance
16. (2) If loss or damage… occurs to anything while the contractor is responsible for its care the contractor shall at the contractor’s own costs promptly make good the loss or damage.
See AS 2124-1992
16.3 Accepted risks are –
(a) any negligent act or omission of the principal, the superintendent or the employees consultants or agents of the principal
See the indemnity provisions of the contract.
See the insurance provisions of the contract.
ABIC MW -2008 Risk
D 1,2 and 3.
R 9.
PC -1 1998 Risk
5.1
5.2
Duty of care
1. Established categories ( precedent cases)
2. Salient features test.
1. Duty of care. PRECEDENT CASES- Ratio decidendi
See the precedent cases. pp. 69 and 70 TB. Vickery and Flood
See Modbury’s Case and the statement of Gleeson J at p. 71 of the TB
1. Most negligence cases there is no argument that there is a duty of care.
2. AND the nature of the duty is also well understood
If the relationship comes within an established category, the plaintiff does not have to prove the existence of a duty of care… .
There is no doubt a builder is under a duty of care.
31
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Some of the people who in construction will a duty of care?
1. The builder.
2. Persons granting the permit and giving advice regarding the permit.
3. Persons providing technical information and such technical information may through the tender process be or not be part of the contract.
4. Principal.
5. Employees.
6. Subcontractors.
7. Anybody who comes on-site
Salient features test.
Caltex Refineries ( Qld) Pty Ltd V Stavar [2009] NSWCA 258 “is an example of a recent novel case where the plaintiff was required to prove duty of care. While it is established law that an employer owes a duty of care to its employees in this case the court had to consider whether Caltex (a major industrial user of asbestos) a duty of care to the wife of a Caltex employee stop the wife had contracted mesothelioma from contact with the specialists when handling her husband’s contaminated clothes.
2. Duty of Care where there is no precedent case law
If a case is ‘novel’ (i.e. no precedent exists), the court considers the ‘salient’ (important) features of the parties’ relationship to decide if it imposes a duty of care - see Sullivan v Moody
Two significant features are:
The defendant’s ability to control the situation and whatever caused the harm. See Modbury Triangle Shopping Centre v Anzil and Roads and Traffic Authority v. Dederer (p. 73)
The vulnerability of the plaintiff. Were they unable to protect themselves from the consequences?
Also see p 72 TB.
34
Copyright ©2012 Pearson Australia (a division of Pearson Australia Group Pty Ltd) – 9781442537859/Vickery/Australian Business Law/7e
Duty of Care of Builder to a Subsequent purchaser.
“The scope of tortious liability, particularly in the tort of negligence, continues to extend to areas where previously no duty was believed to exist. The decision of the High Court in Bryan v Maloney (1995), in which the builder of a dwelling house was found to be liable in negligence to a subsequent purchaser, represents a high watermark in the expansion of the categories of tortious liability. The more recent decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) place substantial limitations upon such a cause of action”.
See the textbook page 137
Duty of Care of Builder to a Subsequent purchaser.
The decision in Woolcock Street Investments Pty Ltd v CDG Pty Ltd13 placed substantial limitations upon such a cause of action.14 The most recent decision of the High Court in Brookfield Multiplex Ltd v Owners Corp Strata Plan 6128815 in effect precludes recovery by subsequent purchasers of non-residential property.
See p 137 of the PTB
Duty of Care of Builder to a Subsequent purchaser.
The common law is that there is no duty of care owed to subsequent purchasers og commercial properties. ( reasoning is legal reasoning but mostly policy reasoning to draw a line on the duty of care)
BUT domestic home owners who are subsequent purchasers are protected by the common law and the Domestic Building Contracts Act
See section 8 and 9 and 10.
Domestic but not commercial
The reasons for the High Court in one case negligence another not is discussed in the textbook on page 140.
“The basis for differentiating between residential and commercial property purchasers is in part based on policy considerations and the fact that the latter are seen as being able to protect themselves and are thus not vulnerable to actions of those who designed or constructed the building”.
Later limits on the extent of duty to care to subsequent purchasers of domestic buildings
Another significant aspect of Bryan, as noted in Roberts, was that the defects in the relevant dwelling were latent. It has, conversely, been found that no duty of care is owed to a subsequent purchaser in respect of defects that are not latent or that are not structural: see, for example, Woollahra Municipal Council v Sved;37 Zumpano v Montagnese;38 and now Brookfield Multiplex v Owners Corporation SP 61288.39
Similar principles apply in respect of the liability of sub-contractors and consultants to third parties in tort for pure economic loss: see, respectively, [8.290] and [11.160].
SEE p. 141 of the PTB
Salient Features test part 1
See Allsop P in Caltex Refineries P/L v Stavar
(a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant;
44
Copyright ©2012 Pearson Australia (a division of Pearson Australia Group Pty Ltd) – 9781442537859/Vickery/Australian Business Law/7e
Salient features test part2.
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law
45
Copyright ©2012 Pearson Australia (a division of Pearson Australia Group Pty Ltd) – 9781442537859/Vickery/Australian Business Law/7e
Salient Features Test
1. Vulnerability of the plaintiff.
2. The control that the defendants has over the situation.
3. The assumption of responsibility taken by the defendant.
4. The reliance of the D on the P.
5. The foreseeability of harm to the D by the P’s conduct
Breach of Duty of Care
Take account of -
a.Skills of a person in that industry.
b. The level of skill of existing codes.
c. Practice of Peers in that industry.
Then consider-
a. Possibility of harm.
b. Gravity of harm.
c. Cost of taking precautions.
d. Social utility (need/benefit) of the action.
Establishing the breach.
“The duty of building professionals is to guard against probabilities, not possibilities. However, where there is a greater risk, the standard will be higher and the duty may require that reasonable possibilities could also be considered. The combined effect of the magnitude of the foreseeable risk of injury, loss or damage occurring and the gravity of the consequence of such risk are relevant in determining whether there is been a breach of duty.
In addition to considering the magnitude of the risk of harm the degree of probability of its occurrence, the court also take into account the expense, difficulty and inconvenience to the defendant of taking alleviating action and any other conflicting responsibilities the defendant may have when assessing whether there has been a breach of duty”.
See the textbook page 143
The factors of possibility of harm, gravity of harm, cost of taking precautions will on balance set the standard of care -high, medium or low.
It is then for the court or in some cases the jury to determine if the defendants actions meet that standard.
If they do not meet the standard then it is breach of duty of care. If they meet the standard there is no breach of duty of care.
Harm.
1. Satisfy the causation test.
2. Satisfy the remoteness/proximity test.
Occupational health and safety laws/tort of negligence
“In the construction context accidents on building sites often lead to a prosecution of the contractor for breach of Occupational Health & Safety laws and separate proceedings in tort by the employee injured as a result of the employer’s negligence which caused the accident”.
See the textbook page 126.Ed 3 but not in Ed 4
The same act will also constitute a breach of the contract between the principal and the contractor
Occupational Health and Safety Act
The, Occupational Health and Safety Act 2004 ("the Act) is the main piece of legislation providing Victorian workers with rights in occupational health and safety.
Some good links
https://www.worksafe.vic.gov.au/occupational-health-and-safety-act-and-regulations
https://www.worksafe.vic.gov.au/occupational-health-and-safety-your-legal-duties
There is not much on OH&S in the textbook.
A good source is
https://www.ohsbok.org.au/wp-content/uploads/2019/07/9.2-WHS-Law-in-Australia-2014-1.pdf
Negligence- civil law OH&S -criminal law
Injury in the workplace may lead to a civil action for compensation for harm, the result of which may be an award of money to the injured worker, and, in completely separate court proceedings, to a criminal prosecution conducted by an inspector (or the regulator itself) and a penalty imposed on the responsible party. Civil law plays an indirect role in improving safety in the workplace through the obligations it imposes on employers and others to take reasonable care for the safety of workers, and through the impact of damages awards that may result when these obligations are breached (see Foster, 2012, part 2, chapters 3-6, 11). Criminal law addresses the issue more directly by seeking to prevent accidents happening through penalising the creation of risks to safety.
https://www.ohsbok.org.au/wp-content/uploads/2019/07/9.2-WHS-Law-in-Australia-2014-1.pdf
Negligence- civil law OH&S -criminal law
The phrase ‘duty of care’ has become one commonly used in OHS law. It is useful to put it in context before examining how it appears under the legislation. Deriving from civil law, a duty of care is a legal duty to take care for the safety of another person. Its importance stems from the landmark decision of the UK House of Lords in Donoghue v Stevenson [1932]: Lord Atkin used the phrase ‘duty of care’ to describe the obligation he saw arising from a number of previous cases to “take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” (p. 580). In due course, the concept became the first of three major elements that had to be established by a plaintiff to make out a civil action in the tort of negligence (the other two being ‘breach of duty’ and ‘causation’).
OH&S legislation uses the negligence concepts of duty of care and standard of care
When criminal obligations were imposed on those in charge of workplaces to look out for the safety of other workplace participants, it was natural to transfer this phrase used for many years in civil litigation ( principle of negligence) to the criminal statutes.
In many cases a breach of the civil duty of care would also be seen as a criminal offence under the OHS laws.
In the negligence the standard of care has four criteria that are weighed to determine the level of the care required in all the circumstances
What is reasonably practicable must be identified in relation to the particular circumstances existing at the particular time. This must be done by assessing all relevant matters to determine what is reasonably able to be done. Matters that must be weighed up include: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk see OHS Act 2004 (Vic), s 20.
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 20
The concept of ensuring health and safety
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a) To eliminate risks to health and safety so far as is reasonably practicable; and
(b) If it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) The likelihood of the hazard or risk concerned eventuating;
(b) The degree of harm that would result if the hazard or risk eventuated;
(c) What the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) The availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) The cost of eliminating or reducing the hazard or risk.
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 20
A,b,d, and e in section 20 are the same criteria as in negligence.
See slide 53
And section 48 (2) of the Wrongs Act
WRONGS ACT 1958 - SECT 48
General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
The Occupational Health and Safety Act, 2004
The Occupational Health and Safety Act, 2004 ("the Act) is the main piece of legislation providing Victorian workers with rights in occupational health and safety. The introduction of its predecessor in Victoria in 1985 was the result of many years of hard work on the part of the union movement.
The Act clearly sets out the duties of employers and workers, involvement of workers and consultation , the resolution of issues, protection for both workers and their representatives, the role and function of inspectors, and more.
Fines over fatal fall increased from $450k to $1.5m
.
Background
The incident occurred in late May 2011 at a building site at Southbank, Melbourne where construction company Frankipile was performing piling work for a developer/builder. Relevantly, Frankipile had brought to the site a pile drilling machine known as a Fundex 3500.
Frankipile requested Vibro-Pile to provide a worker to operate the Fundex machine. Vibro-Pile arranged for Mr WT, an experienced Fundex operator, to perform the work. Mr WT was told by the Frankipile supervisor that the company's employees would work to WT’s directions. On 28 May 2011, a section of a piling rig being operated by Mr WT collapsed. Mr S, an employee of Frankipile , was attached by fall protection devices to the top of the section that collapsed. He fell about 40 metres, and sustained extensive injuries from which he died at the scene. Frankipile and Vibro-Pile were prosecuted by the Victorian WorkCover Authority after an investigation revealed the collapse was caused by a failure to insert particular bolts when erecting the piling rig. Following a 17-day trial in the County Court, Frankipile and Vibro-Pile were each convicted of two offences under section 21 of the Occupational Health and Safety Act 2004 (Vic). Frankipile was fined $350,000 and Vibro-Pile was fined $100,000. Vibro-Pile sought leave to appeal against both conviction and sentence. Meanwhile, the Director of Public Prosceutions (DPP) appealed against each of the sentences on the ground of manifest inadequacy. In March this year, the Supreme Court of Victoria – Court of Appeal (Maxwell P, Redlich and Whelan JJA) refused Vibro-Pile’s applications but allowed both appeals by the DPP. The Court of Appeal resentenced the companies, ordering that each pay a revised fine of $750,000.
http ://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2016/55.html
DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 (24 March 2016)
| Charge on Indictment | Defendant | Offence | Maximum | Sentence |
| 1 | Frankipile | Sections 21(1), (2)(a) | $1.075 million(9000 penalty units)[8] | Aggregate fine of $350,000 |
| 2 | Frankipile | Sections 21(1), (2)(e) | As above | |
| 3 | Vibro-Pile | Sections 21(1), (2)(a) | As above | Aggregate fine of $100,000 |
| 4 | Vibro-Pile | Sections 21(1), (2)(e) | As above |
:
5 The companies were sentenced as follows ( charges are in paragraphs 17 of the judgement)
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 20
The concept of ensuring health and safety
(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a) To eliminate risks to health and safety so far as is reasonably practicable; and
(b) If it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a) The likelihood of the hazard or risk concerned eventuating;
(b) The degree of harm that would result if the hazard or risk eventuated;
(c) What the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d) The availability and suitability of ways to eliminate or reduce the hazard or risk;
(e) The cost of eliminating or reducing the hazard or risk.
Prosecution
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 26
Duties of persons who manage or control workplaces (1) A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2) The duties of a person under subsection (1) apply only in relation to matters over which the person has management or control.
(3) An offence against subsection (1) is an indictable offence.
Note to s. 26(3) amended by No. 68/2009 s. 97(Sch. item 90.5).
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009 ).
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 21
Duties of employers to employees (1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following—
(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
(3) For the purposes of subsections (1) and (2)—
(a) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b) the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
(4) An offence against subsection (1) is an indictable offence.
Note to s. 21(4) amended by No. 68/2009 s. 97(Sch. item 90.1).
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 23
Duties of employers to other persons (1) An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2) An offence against subsection (1) is an indictable offence.
Note to s. 23(2) amended by No. 68/2009 s. 97(Sch. item 90.2).
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009 ).
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 26
Duties of persons who manage or control workplaces (1) A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2) The duties of a person under subsection (1) apply only in relation to matters over which the person has management or control.
(3) An offence against subsection (1) is an indictable offence.
Note to s. 26(3) amended by No. 68/2009 s. 97(Sch. item 90.5).
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009 ).
OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 32
Duty not to recklessly endanger persons at workplaces A person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence and liable to—
(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding 1800 penalty units, or both; and
S. 32(b) amended by No. 41/2016 s. 5.
(b) in the case of a body corporate, a fine not exceeding 20 000 penalty units.
Note to s. 32 amended by No. 68/2009 s. 97(Sch. item 90.11).
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009 ).
OCCUPATIONAL HEALTH AND SAFETY
Division 2--Main duties of employers
21. Duties of employers to employees
22. Duties of employers to monitor health and conditions etc.
23. Duties of employers to other persons
Division 3--Duties of self-employed persons
24. Duties of self-employed persons to other persons
Division 4--Duties of employees 25. Duties of employees
Division 5--Duties of other persons
26. Duties of persons who manage or control workplaces
27. Duties of designers of plant
28. Duties of designers of buildings or structures
29. Duties of manufacturers of plant or substances
30. Duties of suppliers of plant or substances
31. Duties of persons installing, erecting or commissioning plant
32. Duty not to recklessly endanger persons at workplaces
Division 6--Other matters
33. Single charge for multiple contraventions of certain duties
34. Civil liability not affected by this Part
WRONGS ACT 1958 - SECT 24AI Proportionate liability for apportionable claims
(1) In any proceeding involving an apportionable claim—
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant's responsibility for the loss or damage; and
(b) judgment must not be given against the defendant for more than that amount in relation to that claim.
(2) If the proceeding involves both an apportionable claim and a claim that is not an apportionable claim—
(a) liability for the apportionable claim is to be determined in accordance with this Part; and
(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.
(3) In apportioning responsibility between defendants in the proceeding the court must not have regard to the comparative responsibility of any person who is not a party to the proceeding unless the person is not a party to the proceeding because the person is dead or, if the person is a corporation, the corporation has been wound-up.
S. 24AJ inserted by No. 60/2003 s. 3.
An employee injured can sue in negligence or under the OH&S legislation.
You can claim for more than just time off work and treatment expenses - you may also be able to claim for superannuation benefits (after 52 weeks) or compensation if you have become permanently disabled
Note the threshold test for negligence of no recovery for injuries that are 5% reduction of capacity ( serious injury) do not apply to OH&S claims
Check list for OH&S
1. Criminal not civil law.
a) The prosecution have the burden of proof.
b) The onus of proof is beyond reasonable doubt.
2. OH&S establishes a duty of care = precedent cases in negligence.
3. The criteria for standard of care are similar to that used in the common law in negligence and as declared in section 48(2) of the Wrongs Act.
4. The employer as well as being prosecuted by the State is liable under the Act to have compensation to the employee.
5. OH&S requirement are indirectly included in the commercial standard form contracts.
As2124-1992
As 2124-1992
ABIC MW -2008
See A2/1 h and particularily A2/3 a and b.
PC -1 1998
See clause 8.17, particularily 8.17 (b)
The direct and indirect reference to OH&S legislation
YOU SHOULD ATTACH THE RELEVANT CLAUSES.
There could be other references to OH&S legislation in the standard form commercial contracts that I have missed.
Nuisance.
Building works effecting adjoining properties
1. Public Nuisance. ( interference with publicly owned/crown land)
2. Private Nuisance-two types
i) where actual damage to the adjoining land. OR
ii) substantial or unreasonable interference with the enjoyment of adjoining land.
Types of Nuisance
1. The mental element ( intentional or unreasonableness)of the defendant is usually relevant?
2. See p 137 “ and proof that the damage was reasonably foreseeable”.
3. Unreasonable interference p 138
4. P. 138 “ Though others affected by the nuisance may sue in negligence on the same facts.
5. In my opinion think that an adjoining land owner would sue in both causes of action-negligence and nuisance.
Mental element in a Nuisance Cause of Action
An obstruction to
1 The exercise of a public right.
2. That is available to all of the public.
3. General rule only the Crown can take action.
E.g.. Construction work that
endangers health,
safety or comfort of the
public.
Public Nuisance
Where there is actual damage to the land or property.
1. Escape of material or things.
2. Can reasonably foresee damage if the material or things escape.
3. Actual damage to the land or property on the land
See p. 149 of the PTB
Private Nuisance
Where there is no actual damage but there is a substantial or unreasonable interference with the enjoyment of the adjoining land.
1. Substantial interference with enjoyment.
2. If not substantial the interference needs to be unreasonable.
Best to take the mental element as negligence.
Private Nuisance.
Factors to take into account-
1. The type of neighbourhood.
2. Use of properties the surrounding properties.
3. Duration of the interference
4. Time of day of the interference.
5. Frequency of the interference.
6. The degree of the
interference.
See pp 150 and 152
Unreasonable interference
1. Owner of the land if they suffer.
2. The occupier of the land if they suffer.
3. A person with an interest if they suffer.
4. A person who is not 1 to 3 could on the same fact take an action
in neglence.
Who can take action
The action in nuisance needs to be taken in a timely manner or the plaintiff will be taken to have adopted the nuisance.
Time runs from when the owner knows or ought to know of the existence of the nuisance.
Defence to a cause of action in nuisance.
Injunction. A discretionary remedy. Test ” balance of convenience”
And or damages
Remedies
Link to case reports
http://rmit.libguides.com/c.php?g=335979&p=2261051
Richmond City Council v Scantelbury
Court:
Supreme Court of Victoria, Not Available
Judges:
Kaye J
Judgment Date:
8/12/1988
Jurisdiction:
Australia (Victoria)
Citations:
, 6 BCL 286
Legal Representatives:
G. H. Golvan and G. G. McArthur for the applicant. WF Lally for the respondents.
Classification:
HEADNOTE
SUPREME COURT OF VICTORIA
CITY OF RICHMOND v SCANTELBURY
15-17 November,
8 December 1988
Tort — Nuisance — Conditions of liability — Creator of nuisance — Strict liability — Continuation of nuisance created by another — Actual or presumed knowledge — Foreseeability of damage — Abatement — Liability for encroaching trees.
(1) The conditions necessary for liability for damage caused by nuisance depend upon whether the defendant was the creator of the nuisance, or whether the nuisance for which it is sought to make him liable was inherited by him or created on his land by an intruder.
(2) The general rule is that a defendant is liable for nuisance if he or a person for whose conduct he is liable created the nuisance. Thus, as the creator of a nuisance from which damage is suffered or threatened, the defendant may be strictly liable.
(3) An occupier of land is liable for the continuance of a nuisance created by a third party provided that he knew or ought to have known of its existence.
(4) Knowledge of the nuisance, whether actual or presumed, does not by itself render an occupier liable for damage created by it. Arising out of such knowledge, there is a duty borne by the occupier to take steps to eliminate the risk of damage from the nuisance which is reasonably foreseeable. To be foreseeable, the risk of damage must be a real as opposed to a mere theoretical risk in relation to which a reasonable person, in the position of the defendant and in the circumstances, would have considered that positive action is necessary to eliminate the nuisance.
(5) A person injured by a nuisance who takes steps to abate the nuisance is unable to recover the costs of the abatement as damages, but he may be able to recover damages for any harm suffered before the abatement. As the act of abating a nuisance has the effect of removing it, the claimant is not thereafter entitled to damages for nuisance. Torette House Pty Ltd v Berkman (1940) 62 CLR 637; Sedleigh-Denfield v O'Callaghan [1940] AC 880; Traian v Ware [1957] VR 200; Morgan v Khyatt [1964]1 WLR 475; Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617; Cartright v McLaine and Long Pty Ltd (1979) 143 CLR 549; Leakey v National Trust for Places of Historic Interest or National Beauty [1980] QB 485; Solloway v Hampshire County Council [1981] 79 LGR. 449; Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 and Young v Wheeler (1987) Aust. Torts Rep 68,966, referred to.
Order nisi
Richmond City Council v Scantelbury
Megaw LJ in Leakey v National Trust, at 524, said of the duty of a defendant:
"The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is the probable cost of such works? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant's duty of care requires, or required, him to do anything, and, if so, what."
Dunn LJ in Solloway's Case, at 457, after citing this paragraph from the judgment of Megaw LJ, added: "In considering whether there is a breach of duty, the extent of the risk and the foreseeable consequences of it have to be balanced against the practicable measures to be taken to minimise the damage and its consequences."
Richmond City Council v Scantelbury
Knowledge of the nuisance, whether actual or presumed, does not by itself render an occupier liable for damage created by it. Arising out of such knowledge, there is a duty borne by the occupier to take steps to eliminate the risk of damage from the nuisance which is reasonably foreseeable. That the doctrine of foreseeability of the risk of damage extends to nuisance was recognised by the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Py (The Wagon Mound (No 2)) [1967] 1 AC 617. In the judgment of the Board delivered by Lord Reid, at 639, it was said: "It is quite true that negligence is not an essential element in nuisance. Nuisance is a term used to cover a wide variety of tortious acts or omissions and in many negligence in the narrow sense is not essential. An occupier may incur liability for the emission of noxious fumes or noise although he has used the utmost care in building and using his premises. The amount of fumes or noise which he can lawfully emit is a question of degree and he or his advisers may have miscalculated what can be justified. Or he may deliberately obstruct the highway adjoining his premises to a greater degree than is permissible, hoping that no one will object. On the other hand the emission of fumes or noise or the obstruction of the adjoining highway may often be the result of pure negligence on his part: there are many cases (e.g. Dollman v Hillman [1941] 1 All ER 355, CA.) where precisely the same facts will establish liability both in nuisance and in negligence. And although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, eg in cases like Sedleigh-Denfield v O'Callaghan [1940] AC 880; 56 TLR 887; [1940] 3 All ER 349 the fault is in failing to abate the nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour."
This extract is from Brooking.
“Nuisances of this kind generally arise from something coming from the defendant's land73 such as noise74 vibration75 dust76 sediment from soil erosion,77 noxious smuts and pollution,78 smoke79 and offensive odours and stenches.80
19.19 Courts will look to balance the right of the plaintiff to enjoyment of property with the right of the defendant to undertake the activity in question. In assessing whether the activity is unreasonable or not, a court may consider factors such as severity and type or nature of activity,81 duration and time,82 location,83 motive,84 and precautions taken by the defendant to minimise any interference having regard to practicality and cost in all the circumstances.85”
Compare the first paragraph on p 138 of Bailey and Bell. P.138 CONSTRUCTION LAW IN AUSTRALIA
“The second type occurs where there is a substantial or unreasonable interference with the enjoyment by another of their land or other property on that land through excessive noise, vibrations, dust or smells”.
Comparison
Brooking has more examples of interference.
Brooking case authorities for the examples of interference.
Moves the answer from a pass to a HD !
Nuisance.
1. There is public a private nuisance.
2. Public nuisance is when there is an interference to members of the public in exercising a public right, e.g. such as interference with the public highway. See Kent v Johnson (1973) 2 ACTR 1
The plaintiff is usually the government in the case of public nuisance.
3. the tort of private nuisance is the right person to use or enjoy their land so that there is no incursion
a) materials or things such as water trees or pieces of masonry onto land or
b) there is no substantial or unreasonable interference of their hand with excessive noise vibrations dust or smells.
4. The considerations that make up for determination of whether the interference is substantial or reasonable
a) is interference light or substantial
b) is interference isolated or a continuing one
c) what is the nature of the neighbourhood and the use of surrounding properties
d) time day
e) the frequency
f) and other relevant considerations.
See Baxter V Camden London BC [No 2] [ 2001] QB 1
In Baxter v Camden LBC (No 2) ([2001] Q.B. 1, CA (Eng)) the council had converted a house into three flats (one flat on each floor). The work had been done in accordance with the building standards of the time but these standards did not require the installation of adequate sound insulation between the floors. The tenant of the middle floor complained of the noise from the flats above and below her. These noises were occasioned by the ordinary use of the flats but the lack of sound insulation meant that they could be heard clearly and were a source of great stress to the tenant. She brought proceedings in nuisance against the council.
These failed because the noises were the result of the ordinary use of residential premises and this could not amount to a nuisance. ‘Ordinary use may only give rise to a nuisance if it is unusual or unreasonable having regard to the purpose for which the premises were constructed.’ (per Tuckey L.J. at 12).
In Baxter v Camden LBC (No 2) ([2001] Q.B. 1, CA (Eng)) the council had converted a house into three flats (one flat on each floor). The work had been done in accordance with the building standards of the time but these standards did not require the installation of adequate sound insulation between the floors. The tenant of the middle floor complained of the noise from the flats above and below her. These noises were occasioned by the ordinary use of the flats but the lack of sound insulation meant that they could be heard clearly and were a source of great stress to the tenant. She brought proceedings in nuisance against the council.
These failed because the noises were the result of the ordinary use of residential premises and this could not amount to a nuisance. ‘Ordinary use may only give rise to a nuisance if it is unusual or unreasonable having regard to the purpose for which the premises were constructed.’ (per Tuckey L.J. at 12).
Tuckey L.J. provided this general statement of the law of nuisance:
‘The essence of the tort is undue interference with the use or enjoyment of land and the right of the plaintiff not to be interfered with. In striking this balance in the case of noise nuisance, and other nuisances of this type, the court will obviously have to consider the locality, age and physical characteristics of the premises in question. Occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises.’ (at 10).
this
http://www.e-lawresources.co.uk/cases/London-Borough-of-Southwark-v-Mills.php
London Borough of Southwark v Mills, Baxter v LB Camden [1999] 3 WLR 939 House of Lords
Mills & Baxter were tenants in council properties owned by the defendants. Their complaints related to the lack of soundproofing in the flats which meant they could hear the day to day activities of their neighbours such as walking across the floor, using the toilet, watching television. They brought actions in nuisance against the Council.
Held:
There was no nuisance. Nuisance is based on the concept of reasonable user. The use of the flats was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The council could not therefore be liable for authorising a nuisance that did not exist.
p. 152 of the textbook
The courts, however, have adopted a pragmatic approach to demolition and building works. The contractor will be under a duty to take proper precautions to avoid undue inconvenience to neighbours. Where no steps are taken to limit the interference with a neighbour’s property, the contractor will be liable for the nuisance, though not necessarily for the total consequences of the nuisance caused by the building work. Liability would extend only to that part attributable to the failure to take proper precautions, see Andreae v Selfridge & Company Limited [1938] Ch 1
The second type occurs where there is a substantial or unreasonable interference with the enjoyment by another of their land or other property on that land through excessive noise, vibrations, dust or smells. Whether the interference is unreasonable is a question of degree: a continuing interference with the enjoyment may be unreasonable, even if that interference is slight; likewise, an isolated deliberate act or an irregular unintended occurrence may give rise to an action for private nuisance, if that interference is considerable: see Halsey v Esso Petroleum Co Ltd;88 and Owners of Strata Plan 4085 v Mallone.89
Jacobs J “ It is not a public nuisance to increase traffic upon a highway. Every member of the public has the right to use the highway as such. The act of one user in so doing does not in law injure any other user, nor is the creation of an attraction by an owner of land so that the number of users is increased a wrongful act. User of a highway as such is never an obstruction. There is an obstruction when a person uses a highway otherwise than for passage and an attraction of a crowd which congregates and ceases to use the highway for passage may by causing such a congregation result in a public nuisance for which the attractor may be liable. The cases to this effect which were relied on by the judge at first instance are not in my opinion applicable to a case where the attractor does no more than increase the number of persons using the highway for the purposes of passage. (at p174)”
JOHNSON v. KENT [1975] HCA 4; (1975) 132 CLR 164
3. Review AS 2124 and discuss where the doctrines of negligence and nuisance are referred to
1. Clause 12.1 could use the standard of the reasonable man –standard of care a reasonable man would take.
2. Clause 15 (a) could be the standard of negligence.
3. Clause 15 (c) probably deals with the tort of nuisance. Clearly that would be what the principal would argue.
4. Clause 16 deals with negligence.( particular when you look at 16.2 and 16.3 (a)
5. Clause 17.
6. Clause 20
7. Clause 30
8. clause 30
There are more but discussion of 8 causes is enough.
You have done contract interpretation oin the former lecture.
There are many journal articles on negligence and the building contractor.
When drafting a caise of action against a builder the statement of claim will claim breach of contract and negligence
