25. Health and safety—The civil law

2019 ◽  
pp. 442-460
Author(s):  
Stephen Taylor ◽  
Astra Emir

This chapter looks at the civil law arm of health and safety law, which serves to provide compensation to employees or ex-employees who have suffered a detriment due to the unlawful actions of their employers. It focuses on personal injury claims brought to the County Court and High Court and the defences that are available for employers when faced with such litigation. The discussions cover claims due to negligence, breach of statutory duty, breach of contract and constructive dismissal, and stress-based claims.

2020 ◽  
Vol 43 (2) ◽  
Author(s):  
Laura Griffin ◽  
Gemma Briffa

In 2017 Victoria became the first Australian jurisdiction to initiate substantive reforms to its civil liability laws, to address barriers faced by plaintiffs seeking to hold institutions liable for child abuse. The new law, based on recommendations arising from a Victorian inquiry, establishes a statutory duty of care owed by organisations to take reasonable precautions against abuse of children under their care or supervision. On its face, the Wrongs Amendment (Organisational Child Abuse) Act 2017 (Vic) looks like a helpful clarification of this complex area of law. However, when viewed within the context of the work of the Royal Commission on Institutional Responses to Child Sexual Abuse, as well as common law principles – particularly strict liability in the areas of non- delegable duty and vicarious liability, and the High Court decision of Prince Alfred College Inc v ADC – we see that barriers and uncertainties remain.


Business Law ◽  
2020 ◽  
pp. 269-299
Author(s):  
James Marson ◽  
Katy Ferris

This chapter first discusses one of the most important torts—negligence—which may be commonly seen in instances of personal injury. This is followed by a discussion on acts of private and public nuisance. Torts law is particularly relevant to businesses as they need to be aware of the extent of their potential liabilities to workers, visitors to business premises, other businesses, and to the general public. This extends to ensuring that safe systems of work exist and appropriate insurance is maintained. Contrary to civil law, torts law imposes obligations on parties who wish to undertake duties freely and agree to be legally bound via contracts without, necessarily, prior agreement. The duty is to take reasonable care and not intentionally or negligently cause harm or damage.


2019 ◽  
pp. 396-418
Author(s):  
Lucy Jones

This chapter considers the employment law aspects of discrimination and health and safety. It discusses the meaning of the protected characteristics which were brought together under the Equality Act 2010 and considers prohibited conduct under the Act. It explains the difference between direct and indirect discrimination and when direct discrimination can be justified. The chapter discusses the difference between positive action and positive discrimination and the interaction between protected characteristics and prohibited conduct. It also explains the law relating to harassment and victimization. The chapter concludes with a discussion of the law covering health and safety in the workplace, looking at both criminal law and civil law.


Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis

Economic torts seek to protect a person in relation to his trade, business, or livelihood. However, he will only be protected from certain kinds of interference, principally those inflicted intentionally or deliberately. Nor will an intention to harm suffice, on its own, to ground liability. There are three broad sub-categories of liability: those torts based on the defendant’s wrongful interference with the claimant’s pre-existing legal rights (inducing breach of contract and inducing breach of statutory duty, in particular); the tort of interference with trade or business by unlawful means; and the tort of conspiracy. This chapter considers each of these in turn followed by an outline of the statutory immunities in relation to trade disputes.


1995 ◽  
Vol 29 (3) ◽  
pp. 291-359 ◽  
Author(s):  
Assaf Likhovski

My story is full of holes. The first hole, or rather, ditch, was dug in 1930 by the municipality of Haifa. An Arab, Dr. Caesar Khoury, fell into the ditch and fractured his shoulder-blade.Could Dr. Khoury recover? The law of torts of mandatory Palestine was found in the Mejelle — an Ottoman code of Moslem civil law. Did the Mejelle provide a remedy in the case of personal injury? “Unfortunately,” said Judge Francis Baker, who delivered the opinion of the Supreme Court of Palestine, “the Mejelle dealt with liability for damages caused by animals to property, but it was ‘silent’ with regards to injuries caused to persons”. Therefore, Dr. Khoury could not recover.The second hole in my story belongs to a Jew, Feivel Danovitz. In 1939, Danovitz was run down by a truck in Tel Aviv. He sued the driver and the owner of the truck. The lower courts of Tel Aviv decided that if the Mejelle did not deal with liability for personal injury, that meant that there was a hole in the tort law of Palestine. Such a hole could be filled by recourse to the English common law in accordance with the provisions of Article 46 of the Palestine Order-in-Council, 1922. Since the English common law recognized liability for personal injury, Danovitz could recover.


1960 ◽  
Vol 4 (3) ◽  
pp. 289
Author(s):  
Erwin C. Surrency ◽  
G. D. Squibb
Keyword(s):  

2018 ◽  
Vol 11 (2) ◽  
pp. 209
Author(s):  
Bachtiar Bachtiar ◽  
Tono Sumarna

ABSTRAKWanprestasi dalam perjanjian konstruksi kerap ditemui dalam praktik, baik yang dilakukan oleh pemberi pekerjaan, maupun pihak pelaksana pekerjaan. Konsekuensinya, pihak yang melakukan wanprestasi dibebankan memulihkan kerugian yang timbul dari pelaksanaan perjanjian. Hal demikian tercermin dalam Putusan Nomor 72/PDT.G/2014/PN.TGR, di mana Kepala Dinas Kesehatan Kota Tangerang Selatan selaku pihak pemberi pekerjaan proyek terbukti melakukan wanprestasi. Menarik untuk dicermati, majelis hakim dalam putusannya justru membebankan Walikota Tangerang Selatan untuk bertanggung jawab secara keperdataan. Isu hukum yang hendak dijawab dalam tulisan ini, terkait apakah penafsiran hakim dalam Putusan Nomor 72/PDT.G/2014/PN.TNG tentang pembebanan tanggung jawab perdata kepada kepala daerah akibat wanprestasi yang dilakukan oleh kepala dinas telah sesuai dengan ajaran hukum administrasi negara, dan ajaran hukum perdata. Untuk menjawab isu hukum tersebut, penulis menggunakan metode penelitian hukum normatif dengan bersandar pada data sekunder yang diperoleh melalui studi kepustakaan. Hasil penelitian ini menunjukkan bahwa majelis hakim telah keliru dalam menafsirkan konsep pertanggungjawaban kepala daerah. Menurut ajaran hukum administrasi negara, walikota selaku kepala daerah tidak dapat dimintai tanggung jawab secara perdata akibat wanprestasi yang dilakukan kepala dinas. Demikian pula dari perspektif Pasal 1340 KUHPerdata, walikota bukanlah merupakan pihak dalam pelaksanaan perjanjian yang dibuat oleh kepala dinas, sehingga tidak dapat dibebani tanggung jawab secara keperdataan.Kata kunci: tanggung jawab perdata, kepala daerah, wanprestasi. ABSTRACT Breach of contract in construction agreements is often found in practice, whether carried out by the employer, or the implementing party. As a consequence, the defaulting party is charged to recover losses arising from the implementation of the agreement. This was reflected in Court Decision Number 72/PDT.G/2014/ PN.TGR, which is the Head of South Tangerang City Health Office, as the project employer, has been proven in breach of contract. It is interesting to note that the panel of judges in its decision actually charged the Mayor of South Tangerang with a contractual liability. The legal issue in this paper is whether the interpretation of judges in Court Decision Number 72/PDT.G/2014/ PN.TNG concerning the imposition of civil liability to the regional head due to default committed by the head  of office is in accordance with the teachings of the law of state administration and civil law. To answer these issues, the author uses normative legal research methods based on secondary data obtained through literature studies. The results of the analysis show that the panel of judges has erred in interpreting the concept of regional head accountability. According to the teachings of the state administration law, the mayor as the head of the region cannot be privately liable for the default committed by the head of office. Likewise, from the perspective of Article 1340 of the Civil Code, the mayor is not a party to the implementation of the agreement made by the head of office, therefore civil liability cannot be burdened to him. Keywords: civil liability, regional head, default.


Author(s):  
Grzegorz Glanowski

The paper describes the behavior of a patient who in order to obtain medical benefits simulates symptoms which, according to special medical knowledge could be recognised as a threat to life or health. The main problem arises when despite the fact that the limits of medical benefits financed from the public funds have run short, a medical doctor, wishing to fulfil his statutory duty, decides to render medical assistance to such patient. Whether that assistance was really indispensible can only be determined after the patient has been thoroughly examined. It may then be too late, though, and the doctor may face serious difficulty in being reimbursed by the National Health Fund, or, if there was no actual threat to patient’s life or health, such compensation for rendered service becomes out of reach. The author analyses the abovementioned situation from the civil law point of view.


Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis

This chapter begins by considering the nature of the action for breach of statutory duty. The action for breach of statutory duty enables the claimant to recover compensation for losses brought about by the defendant’s failure to comply with a statutory obligation. Increasing areas of commercial and business activity are regulated by legislation designed to protect the health and safety of employees, consumers, and road-users; regulation may also have the aim of protecting certain property and financial interests. The second part of the chapter discusses the components of a liability covering the availability of a civil remedy; the scope of the civil remedy; causation, remoteness, and defences; and liability for breach of obligations arising under EU law.


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