RSK80004 Common Law Case Study Introduction to Risk and Due Diligence Assessment and Tutor Proposal

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RSK80004 Common Law Case Study Introduction to Risk and Due Diligence

Assessment No: 1

RSK80004|Introduction to Risk and Due Diligence

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RSK80004 Common Law Case Study Introduction to Risk and Due Diligence

ASSIGNMENT 1: Common Law Case Study


Task

Consider one of the two following cases, preferably the one closest to your industry or major interest. Apply the four common law criteria (Questions) and provide an assessment of whether you believe the defendant would be found guilty of negligence. Please explain your reasoning under each criterion. Each of these cases is complex, so try to present arguments for and against under each of the criteria.

 

If there are different possible defendants to the selected action, consider them all and discuss why you believe a particular party may be enjoined to the action ahead of others. The Australian adversarial judicial and common law system should be used, not the inquisitorial European type system.

The assignment should be a maximum of 2000 words. Assessment will be based on the logic of your argument, not the number of words. You may or may not come to the same conclusion as the court/s as the limited information below will require you to make assumptions about the circumstances of the event. However, any such assumptions should be clearly stated/presented.

 

CASE 1

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”.

This is a real case DIRECTOR OF PUBLIC PROSECUTIONS v Evergreen Civil Pty Ltd Jurisdiction: IN THE MAGISTRATES COURT OF VICTORIA AT RINGWOOD CRIMINAL JURISDICTIO

Outcome

Evergreen Civil Pty Ltd (the offender) is a construction company specialising in public landscapes, streetscapes, drainage and civil infrastructure. They were undertaking works at Tunstall Square Shopping Centre, Beverley Street, Doncaster East (the workplace).

On 1 June 2017 at 10:15pm, a pedestrian received serious injuries after falling over 1 metre to the bottom of an open stormwater excavation next to a footpath. The fencing around the perimeter of the open excavation included star pickets and orange para- webbing. Members of Victoria Police witnessed the incident and assisted the injured person at the scene.

WorkSafe were notified by Victoria Police on 2 June 2017, and on 5 June 2017 the WorkSafe Inspector attended the workplace. He observed safety measures to the site had been undertaken, including crowd control barriers Dyna-bolted to the footpath. No notices were issued.

The offender had a Safe Work Method Statement providing that work areas were to be isolated by the use of signage, bollards, bunting and fencing. The para-webbing had been installed by the site foreman and checked on a daily basis by the site supervisor.

The offender pleaded guilty to a single charge under s. 23(1) on the basis that there was a risk of serious injury or death, and it was reasonably practicable to secure the site to ensure public safety, by installing and securing temporary perimeter fencing or isolating persons from the hazard or a combination of both.

The offender pleaded guilty and was without conviction sentenced to pay a fine of $20,000 and costs in the amount of $4,725.

Court

Ringwood Magistrates Court Fine: $20,000.00

Costs: $4,725

Company Evergreen Civil is a privately owned business founded by Jason Green in 2009 shortly thereafter joined by Damian Frazzetto. With 40 years of experience between them in the Civil and Streetscape sectors throughout Victoria, they make a highly skilled leadership team.

With a core team of experienced and knowledgeable staff, Evergreen Civil strives to achieve the perfect balance of time, cost and quality for each and every project.

We do this by engaging our key fundamental principles:

  • We pay attention to your objectives
  • We pinpoint project challenges as early as possible and work with you to resolve them rather than use them as excuses
  • We maintain a team of people with varying skills which makes for a very efficient and competent project delivery team

The type of works carried out by Evergreen Civil includes (but is not limited to) the construction and/or maintenance of:

  • Streetscapes and Landscapes
  • Stormwater Harvesting
  • Drainage and Civil Infrastructure
  • Bulk Earthworks
  • Environmental Construction
  • Paving and Stonemasonry

CASE 2

 

Give an opinion as to whether or not the defendants in the following example would be considered negligent in their duty of care to road users and neighbours.

This is a real case DIRECTOR OF PUBLIC PROSECUTIONS v AM DESIGN AND CONSTRUCTION PTY LTD & ALDO DITONTO:

AM Design & Construction Pty Ltd (‘the offender’) completed structural drawings for the basement excavation works for a mixed commercial and residential development to be constructed at 170-174 Highbury Road, Mount Waverley (‘the workplace’). Aldo Di Tonto was the structural engineer for the development and was the secretary, sole director and sole owner of the offender. The structural drawings for the workplace did not require the concurrent installation of a site retention system. There was a risk to persons working inside, or working, residing or travelling in the vicinity of the excavation pit that, if the walls of the excavation collapsed, they could be seriously injured or killed by being engulfed in the collapse, or falling into the excavation pit. Sometime during the night of 13-14 July 2015 part of the excavation collapsed in the south-east corner of the workplace. On the night of 15 July 2015 a further, and much larger, collapse occurred. The police advised the residents of the front townhouse to immediately evacuate.

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