...Australia or in fact Australia, we must look upon the history of ‘nervous shock’ law, the legitimacy of floodgate arguments and the effect of recent reforms and new legislative provisions in the various Civil Liability Acts. Development of the law The right to claim for negligently caused mental harm has been around for some 125 years dating back to the pre-federation Victorian case of Coultas v Victorian Railway Commissioners. It has consistently been far more tedious in establishing than claims surrounding physical harm due to a difficulty in distinguishing between real or imaginary/exaggerated claims. Seeing is believing and since psychiatric injury is not visible to the untrained eye, claims were long thought of as frivolous. In recent decades, however, medical identification of psychiatric injury has propelled legal recognition of it. As Gummow and Kirby JJ noted in Tame and New South Wales and Annetts v Australian Stations Pty Ltd, ‘there have been advances in the capacity of medicine to objectively distinguish the genuine from the spurious’. History of the law The history of the common law in this area heavily rests on the fear of opening the floodgates of litigation. Courts have been hesitant in recognising claims, concerned with creating indeterminate liability for plaintiffs. During the 20th century statutory law...
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...1. How do employer priorities affect claim adjudication and management in workers’ compensation systems? The number one priority for all companies is to be successful and that means being profitable. As the global market becomes more competitive, many businesses must cut costs and adopt strategies to ensure that their doors remain open. When an employee injures themselves on the job the potential costs of an injury claim can significantly impact the WCB premiums for a company (Barnetson, 2010). Workers’ Compensation Boards use its experience rating system to adjust an employer’s premiums based on its injury prevention performance compared to the industry average. Performance compared to that average determines if employers are awarded a rebate or presented with a surcharge (Barnetson, 2010). The system is designed to provide an incentive to employers in hopes they will improve safety performance and prevent injuries, but it also can create pressure to minimize claim costs (Barnetson, 2010). Instead of making safety improvements to the operation, employers may attempt to game the system through the adoption of aggressive claim management and adjudication strategies (Barnetson, 2010). These strategies are designed to do three things; get workers back to work as soon as possible; dispute and appeal claims where feasible; and lower premium rates without having to make significant changes to work processes. More and more employers are recognizing that an early return to work...
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...How personal Injury attorneys bargain their settlements Personal injury lawsuits arise for a variety of different reasons - from defective products to unsafe workplaces to driver negligence. As a victim, you are entitled to file a lawsuit to cover current costs associated with your injury, such as medical bills, lost wages, and vehicle repairs, as well as estimated future costs. Many times, a person will decide to accept the offer from an insurance company that represents the negligent party. However, if an injury victim wants to make sure that the compensation truly matches the injuries, then he or she should seek the advice of an attorney who knows how to file a personal injury lawsuit. Figure out whether There Are Grounds For A Lawsuit...
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...Question A Section 1 Theft Act 1968 In order for Abel, Barbara and Cindy to be criminally liable by virtue of section 1(1) Theft Act 1968 it must be proved that they had “dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it”. Property Belonging to Another - The property in question is the metal fence panels which belong to the Local Authority. The fence panels could be construed as forming part of the “land” as the fence was attached to land and was severed from it. Pursuant to s.4(2)(b) of the Theft Act 1968 Abel, Barbara and Cindy can be held to have stolen this “land” as he actually caused the panels to be severed by the use of hacksaws and appropriated the panels. Appropriation – s.3 Theft Act 1968 – this is the actus reus element of the crime. Abel, Barbara and Cindy have clearly appropriated the panels as only the Local Authority, as owners of the panels, have the right to cut through the metal panels and later sell them for scrap. Dishonesty – s.2 Theft Act 1968 – this is the mens rea element of the crime; the mental intent to intentionally deprive the other of it. Abel = We are informed that Abel planned to go to the playground in the middle of the night after reading about the new project. His intention was to go there and take the fence panels and posts and sell them on as scrap metal. He recruited the help of his daughters and told them to keep quiet if questions are asked. It...
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...people in a society. In our country’s system, we have two main types of classifications for justice, civil law and criminal law. Criminal law, under public law, covers laws and regulations that aim to protect all members of the society. Its emphasis is on punishment. Criminal offenders are prosecuted by government officials, who must provide “the burden of proof” to prove the guilt of the defendant beyond a reasonable, doubt, usually a district attorney or attorney general, and can be punished with fines, imprisonment or even death. Civil law, under private law, covers the rights and duties of individuals among themselves. [ (Roberts, 1998) ] Civil law deals with disputes between individuals or organizations where compensation for the injury or wrongdoing may be awarded to the victim. The purpose of civil law is to...
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...The Harm Principle allows for moral or legal interference only under one condition, to prevent harm to others. Actions and beliefs that are purely self-regarding and represent no threat of harm to others should be free from interference. “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. Since harm is the main criteria for establishing the limits of state regulation and the extent of personal freedom, the concept must be clearly defined. In some cases this is done very smoothly. Acts that restrict the movement of others, cause physical injury or lead to loss of property, for instance, are subject to intervention as these consequences are uncontroversial examples of harm. But not all cases are so clear-cut. Mill himself acknowledges that even purely self-regarding actions can affect others, and it is uncertain at what point affect becomes harm. For example, a person’s religious opinions and right to discuss them should be considered immune from state interference. But expression of these views may well constitute blasphemy for others and in this sense may cause harm. Mill himself distinguishes between causing offence, which does not count as harm, and inciting violence, which is harmful and should be regulated, but the distinction is far from controversial. Other questions may also be asked of Mill’s conception of harm: can a person’s character be morally harmed? Can harm be done...
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...4.1 Apply the elements of the tort of negligence and defences in different business situations Tort is described as an action which causes harm to a person. It is also a law that protects an individual from any harm that may be caused by the unreasonable actions of another. Tort of negligence is considered the unintentional tort. Negligent torts are actions that violated the standard duty of care that caused an unexpected or unintended injury to a person. In negligent tort claims, there are four elements that must be proven by the claimant: a duty to care, the breach of duty, consequential harm, and legal causation or remoteness. * Duty to care: Everyone has a legal duty of care to all. This means that a person shouldn’t do anything reckless that may result to the harm of another. For example, a doctor has a duty to care for his patients by giving them the right treatment and prescribing the appropriate and safe medication. Duty of care in Donaghue -v- Stevenson 1932 was defined as exercising such care as is due in such 'acts or omissions which you can reasonably foresee would be likely to injure persons so directly affected that you ought reasonably to have them in contemplation' and Caparo Industries -v- Dickman 1990 referred also to situations in which it would be fair, just, and reasonable to impose. * Breach of duty: The breach of duty happens when a person fails to exercise a reasonable standard of care to another. He may have intentionally or unintentionally...
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...because working in the food industry you will always find a big laminated poster of all of the employee’s rights and acts. In-fact I believe it is required by law that all businesses display an updated version. One of the most interesting facts that I read was that the Employer rather than the employee is responsible for the employees actions in the event there is an incident. Why you ask? Well there are two reasons why. First, plain and simple, “employer are seen as directing the behavior of their employees and accordingly, must share in the good as well as the bad.” This may sound brash but on the other hand, the employer reaps the rewards of an employees labor in the form of profit . The second reason is that when a workplace injury or incident occurs, the legal system wants to get as much compensation for the victim in the most effective way, and that is to go after the employer. Employers are more likely to have insurance coverage at their disposal for these types of incidents. Employer’s are also responsible if they negligently hire a criminal who causes harm to another employee or the business itself. This is called Negligent hiring or Retention. This act states that...
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...Brigham Young University Yong-Seung Park Kyung Hee University Citation Butler, Richard J., and Yong-Seung Park. 2005. "Human Resource Management and Safety: Technical Efficiency and Economic Incentives." In Safety Practices, Firm Culture, and Workplace Injuries. Kalamazoo, MI: W.E. Upjohn Institute for Employment Research, pp. 1-12. http://research.upjohn.org/up_bookchapters/33 This title is brought to you by the Upjohn Institute. For more information, please contact ir@upjohn.org. 1 Human Resource Management and Safety Technical Efficiency and Economic Incentives More U.S. workers die each year on the job than were killed in the U.S. military cumulatively from 1998 through November 2004, even after including self-inflicted and accidental military deaths (DIOR 2005). In 2001, there were 8,786 job-related fatal injuries (5,900 not counting the fatalities caused by the terrorist attacks of September 11), or about 3.7 fatal injuries per 100,000 workers. Workers made 2.1 million trips to the emergency room for injuries sustained from accidents at work (Centers for Disease Control and Prevention 2004). Workers’ compensation insurance, which covers all medical expenses and part of lost wages associated with injuries, cost employers $63.9 billion in 2001 (Williams, Reno, and Burton 2003). The indirect costs of accidents—lost wages, damage to equipment, and training and rehabilitation expenses—were several times this amount. Human resource management (HRM) is usually viewed...
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...BDB Law’s “Tax Law for Business” appears in the opinion section of Business Mirror every Thursday. Penalties: Deductibility VIOLATION of laws, contracts or policies has become inevitable due to the complexities of this modern world. Violations, intentionally or unintentionally, occur in transactions between or among private individuals or entities or in dealings or transactions with the government. And for some of these violations, penalties in various forms may be imposed. Some of the penalties are agreed upon by the parties, especially in private transactions, but others are imposed by laws. For transactions with the government or for non-compliance with an obligation required by the government, penalties are usually defined by the law or the rule imposing the obligation. For taxpayers, payment of penalty would mean additional expense. But is this additional expense deductible for income tax purposes? As a rule, payments made in the course of trade or business are deductible. However, special rules apply to payments of penalties or fines. Our jurisprudence is clear regarding the deductibility of penalties paid to government agencies for violation of the law or other governmental obligations. In one case, the court held that fines and penalties paid for the late payment of taxes are nondeductible expenses. The court decreed that when acts are condemned by the law and their commission is made punishable by fines or forfeitures, to allow them to be deducted from...
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...2/4/2013 Exam Question #1 Dan’s Justification a)Dan’s Pursuit of Al Use of non-deadly force to reclaim one’s property Use of non-deadly force to reclaim one’s property is allowed under the Model Penal Code if the following three conditions are met 1)the third party’s inference is unlawful 2)the intrusion was on property in defendant’s possession or property for which he served as a bailee and 3)use of non-deadly force is immediately necessary. Under common law non-deadly force may be used to protect personal property in one’s lawful possession if this force appears reasonable to prevent or terminate an immediate unlawful intrusion with that property. In this case, Dan would justify his pursuit of Al as his rightful action to reclaim his property, the handgun and ammunition. Dan would also would testify that Al’s tender of counterfeit moneys amounted to an attempt at larceny by trick. The registration papers had not been completed and Dan was still in possession of the property. Al’s attempt to leave with the property justified Dan’s pursuit of Al. The requirement to desist The Model Penal Code requires that for necessary use of non-deadly force to recapture property, the defending party must first request that the defendant desist his trespassory activity unless the defender believes this request would be useless, or put his person or property in greater danger. In this case, Dan did follow the requirement of making a request to desist, telling Al, “If you don’t...
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...------------------------------------------------- Alternate Case Problem answers Chapter 2 Courts and Alternative Dispute Resolution 2-1A. Jurisdiction (Chapter 2—Pages 29–30) A court can exercise personal jurisdiction over nonresidents under the authority of a long arm statute. Under a long arm statute, it must be shown that the nonresident had sufficient contacts with the state to justify the jurisdiction. In regard to business firms, this requirement is usually met if the firm does business within the state. In this case, the parties to the sponsorship agreement contemplated that substantial activities to further their joint venture would take place in Florida. Sutton lived in Florida, and he was expected to and did play in tour events in Florida. Sutton was to be provided health care insurance in Florida. All earnings from Sutton’s golf-related activities in Florida and elsewhere were to be paid by the Professional Golfing Association from its headquarters and bank account in Florida to the ARS & Associates account in Michigan; the partnership was to disburse funds from the account to Sutton’s account in Florida to enable him to perform golf-related activities and participate in tour events for the benefit of the joint venture. After ARS failed to fund health insurance for Sutton, it instructed Sutton to obtain medical care in return for providing golf lessons to a physician in Florida. These facts—the provision of health care insurance in...
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...making and varying awards in the national workplace relations system. A representative union can negotiates an employee’s award on their behalf. This negotiation is funded by the members of the union, even though it applies to all employees. Employees can get their award from their union if you're a member or from Fair Work Australia. 2. What is workers’ compensation and who is covered by it? Workers compensation is insurance policy will be covered under WorkCover Queensland to protect all employees from injury, illness or disease. The compensation can be monetary and non-monetary compensation such as medical care that related to the injury. The objective of this insurance are to Provide medical treatment and income security to injured workers, Ensure employers meet the costs associated with injuries and disease arising at workplaces under their control and Ensure earliest possible return to work. The payment of worker compensation is depended on the size, risk, and claims history. Also depend on the industry risk, industries with higher risk pay higher rates. Each state and territory has its own workers compensation legislation. Employees will be paid whether or not the employer was...
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...we will try to identify specific areas of the case. In each case we will identify the tort action in each case, which is the wrongdoing within the scenario. We will also identify the plaintiffs in the scenarios along with the defendants in each case. The identification of the elements within the tort claim will also be identified for each scenario. The defense that the defendants may assert will be addressed to show how the defendants plan on pleading their case. After each scenario is evaluated the decision on how each case would be resolved will be stated with legal reasoning for each answer. Scenario #1 In the scenario presented, many things occur. Some of these are intentional actions and some happen by accident. From a legal perspective, these are referred to as tort, which is considered to be a “civil wrong.” Generally, these are not covered by law or statute. A plaintiff has the can be compensated for damages that were sustained as a result of the tort. There are several tort actions present in the case, these include: battery, defamation, wrongful termination, and negligence. There are several potential plaintiffs in this case. First there is Malik, who can claim battery at the hands of Daniel for the fall that breaks his teeth. Malik might make a civil case for being shot. Daniel could also be subject to criminal charges. Second, Daniel could pursue defamation and wrongful discharge from employment against his boss. Daniel can also purse negligence by the...
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...accidents, as they aren't as easy to prove as automobile accidents and other personal injury claims. At times, the property owner and other individuals may be held responsible, but liability must be demonstrated before this is the case. People fall every day, thus many cases are simply an accident with no person to blame. A lawyer recognizes this and determines which is the case in any given situation. Establishing Liability In order to establish liability, one of the following items must be established. One, the property owner or his or her employee needs to have brought about the worn or torn spot, the spill or the dangerous or slippery item or surface that brought about the fall. Two,...
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