Occupational Safety and Health Act Essay Example | Topics and Well Written Essays - 750 words - 123

Occupational Safety and Health Act - Essay Example The employer should provide all safety information required by the employee to assess their workplace safety based on the requirements of the OSHA. The information should be provided in a language understandable by the employee (OSHA, 2015). In addition, an employee has the right to access the results from hazard inspections in the workplace. The employee is also provided with the right to access medical records of the workplace based on injuries and illnesses. Records of medical history can also be accessed by the employee (OSHA, 2014).Self-employed persons are not covered by the Occupational Safety and Health Act (OSHA, 2015). This is based on that the Act only covers employees who may have the work rights violated. In the case of self-employed persons, the responsibility to provide safe workplace is on themselves. In addition, the Act provide for both employee and employer, the parties are absent in self-employment. Immediate family members of farm owners who only employ family me mbers to the farm are not covered by the OSHA (OSHA, 2015). The family members are partially viewed as owners since this type of farm may be viewed as a family business. Consequently, all workers in the farm are viewed more as family members than employees. The OSHA also does not provide for working hazards that are under mandate of another Federal Agency (OSHA, 2014). For instance, mine safety coast guards provide specifications for employees in their own industry. When an employee realizes violation of a safe working environment, they may file a complaint with the OSHA. The complaint may be filed through email contact to the agency or by the physical visit to the nearest office. The OSHA may contact the employer based on the complaints filed (OSHA, 2015). However, the employee may insist on the inspection of their workplace. The employee is also not required to leave their place of work after filing the complaint.

Developing and Managing the Enterprise Essay Example | Topics and Well Written Essays - 3250 words

Developing and Managing the Enterprise - Essay Example Falling within the domain of entrepreneurship, small businesses need to have a good financial plan prepared in order to streamline the resources required to start a new business. For this purpose, a good financial plan is the crucial document which needs to be prepared wisely and as far as accurately in order to ensure that those who express their interest to finance the business must have a very clear idea of the resources required to successfully start the new business. This financial plan is being prepared for a small cookie manufacturing business involved in preparing and selling the same to a large chain store through its various stores located all across the state. Before attempting to present the financial plan, it is very important that the financial plan must outline some of the assumptions which would be taken into account while preparing the financial plan so that all the calculations made are justified. Our proposed business is going to work in retail industry. Though the industry for cookies exclusively has not yet developed however since most of the time they are being sold mostly through the retail stores therefore on broader terms, this product belong to retail industry. The recent trends in this business suggest that there is a growing trend in consumers shopping at the retail chain stores. Since these chain stores develop their own brand names as well as customer loyalty therefore the businesses which sale their products to these chain stores also get the exposures to their brands. On the whole industry is very lucrative, have good margins however there is a growing stress being placed on cost reductions as large chain stores like Wal Mart tend to buy at low prices therefore virtually forcing the suppliers to remain within their cost limits. This fact can alone dictate that in future, due to cost reductions, the margins for this business may increase and efficiencies gained. Customer Analysis Customers in this sort of business tend to develop their tastes on some particular brands and they prefer to buy their own brands. Therefore a good customer analysis is very necessary for the success of the business. (www.marketwise.net, 2008)There are various brands available in the market for cookies and each have their own market share however what is important to understand is the fact that most of the transactions are done in cash ensuring that the business have enough liquidity available in their business. This not only ensure that business has its funds but also help the business to have less reliance on the external funds. Further, it is of very important,

Theories of the process of lateralization

Theories of the process of lateralization The apparent specialization of the left hemisphere for language is usually described in terms of lateral dominance or lateralization. Lateralization process begins in early childhood. It coincides with the period during which language acquisition takes place. During childhood, there is a period when the human brain is most ready to receive input and learn a particular language. This is known as the critical period. The general view is that the critical period for first language acquisition lasts from birth until puberty. This process of development is called Maturation. The idea of a critical period for development of particular processes is not unique to humans. Songbirds display hemispheric specialization in that only one hemisphere controls singing. There are three accounts of how lateralization emerges (Bates Roe, 2001; Tomas, 2003). The equipotentiality hypothesis states that the two hemispheres are similar at birth with respect to language, each able in principle to acquire the processes responsible for language, with the left hemisphere maturing to become specialized for language functions. The irreversible determinism hypothesis states that the left side is specialized for language at birth and the right hemisphere only takes over language functions if the left is damaged over a wide area (Rasmussen Milner, 1975; Woods Carey, 1979). Irreversible determinism says that language has an affinity for the left hemisphere because of innate anatomical organization, and will not abandon it unless an entire center is destroyed. The critical difference between the equipotentiality and irreversible determinism hypotheses is that in the former, either hemisphere can become specialized for language, but in the latter, the left hemisphere becomes specialized for language unless there is a very good reason otherwise. The emergentist account brings together these two extremes, saying that the two hemispheres of the brain are characterized at birth by innate biases in types of information processing that are not specific to language processing, such that the left hemisphere is better suited to being dominant, although both hemispheres play a role acquiring language (Lidzha Krageloh-Mann, 2005). The Critical Period Hypothesis is the best-known version of the equipotentiality hypothesis. Lenneberg (1967) argued that a birth the left and right hemispheres of the brain are equipotential. There is no cerebral asymmetry at birth; instead lateralization occurs as a result of maturation. The process of lateralization develops rapidly between the ages of 2 and 5 years, and then slows down, being complete by puberty. The completion of lateralization means the end of the critical period. There are many theories about Critical Period Hypothesis, some of them confirm the existence of a critical period in acquiring a language and others bring this existence into question or make a distiction between the presence of a critical period in FLA and SLA. The idea of a Critical Period Hypothesis comes from the nativists, lead by Lenneberg and Chomsky, whose explanation is that there is a critical period because the brain is pre-programmed to acquire language early in development. Bever (1981) argued that it is a normal property of growth, arising from a loss of plasticity as brain cells and processes become more specialized and more independent. The Critical Period Hypothesis of Lenneberg (1967) comprises two related ideas, The first idea is that certain biological events related to language development can only happen in an early critical period. In particular, hemispheric specialization takes place during the critical period, and during this time children possesses a degree of flexibility that is lost when the critical period is finished. The second component of the Critical Period Hypothesis is that certain linguistic events must happen to the child during this period for development to proceed normally. Proponents of this theory argue that language is acquired most efficiently during the critical period. The most important idea of Critical Period Hypothesis is that unless children receive linguistic input during the critical period, they will be unable to acquire language normally. One of the most famous of these cases was the Wild Boy of Aveyron, a child found in isolated woods in south of France in 1800. Despite attempts by an educationalist named Dr Itard to socialize the boy, given the name Victor, and to teach him language, he never learned more than two words. It is less easy to apply this argument to the unfortunate child known as Genie. Genie was a child who was apparently normal at birth, but suffered severe linguistic deprivation. From the age of 20 months until she was 13 years and 9 months, when she was found, she had been isolated in a small room. Not surprisingly, Genies linguistic abilities were virtually non-existent. Critical period in SLA Theories in favour of the existence of a critical period in SLA According to the nativist theory, once the critical period is over, usually postulated to be sometime during puberty, it is assumed that a person who begins to learn a L2 will be unable to achieve the native-like competence and performance in it. The basic assumption of a biologically determined critical period is that some essential capacities of younger children are not available to adult learners. One such capacity is the learners access to Universal Grammar, that is, the innate system of linguistic categories, mechanisms and constraints shared by all human languages (Chomsky, 1995). Mark Patkowski hypothesized that only those who had begun learning their second language before the age of fifteen could ever achieve full, native-like mastery of that language. These results gave added support to the Critical Period Hypothesis for second language acquisition. Theories against the existence of a critical period in SLA There are two reasons for rejecting a strong version of the Critical Period Hypothesis. Children can acquire some language outside of the critical period, and lateralization does not occur wholly within it. A critical period appears to be involved in early phonological development and the development of syntax. The weakened version is often called a sensitive period hypothesis. There is a sensitive period for language acquisition, but it seems confined to complex aspects of syntactic processing. (BialystokHakuta, 1994). Locke (1997), argues that a sensitive period arises because of the interplay of developing specialized neural systems, early perceptual experience, and discontinuities in linguistic development. Lack of appropriate activation during development acts like physical damage to some areas of the brain. The distinction between the Critical Period Hypothesis and the sensitive period hypothesis is whether acquisition is possible only within the definite span of age or easier within the period. Seligers proposal (1978), is that there may be multiple critical or sensitive periods for different aspects of language. The maturational explanation is that certain advantages are lost as the childs cognitive and neurological system matures. In particular, what might first appear to be a limitation of the immature cognitive system might turn out to be an advantage for the child learning language. The results of experimental studies have two important implications for adult second language learning. One is that childrens acquisition of a foreign language is different from that of adults. The other is that acquisition of pronunciation and grammar is also different because it involves a problem of physiologic aging process. Adults can learn the grammar of a new language more easily and rapidly than children but that they retain foreign accents. Theories that consider the existence of a critical period in FLA but not in SLA It is widely believed that the ability to acquire language declines with increasing age. Today it is generally agreed that a critical period does exist for first language acquisition but the hypothesis is not as uniformly accepted as applicable to SLA. When considering separately the time required for L2 learning and the ultimate success achieved in the L2, some researchers suggested a compromise conclusion that older is faster but younger is better. At initial stages of L2 acquisition, older learners were at an advantage in rate of acquisition but only in limited aspects. In a recent critical review of the Critical Period Hypothesis literature, Marinova observed that, despite general perceptions that older learners are slower L2 learners, the research has long revealed that, in fact, older learners are faster in process of L2 acquisition, especially at the initial stages. Theoretically, if the critical period for L2 acquisition exists, and older learners are strictly at a disadvantage due to age and some biological or maturation constraints, then all late L2 learners should be performing well below the younger learners. However, many studies, whether supporting of challenging the Critical Period Hypothesis, have shown that younger learners tend to perform fairly similarly to one another, while generally older learners show greater variation in their L2 performances. The effects of the L2 learning process and the type of L2 learning environment have been studied more formally on a larger scale. It has been argued that if adults are able to learn an L2 implicitly in more natural settings, similar to the way children learn language, then they may achieve similar levels of performance at a faster rate (Neufeld). The Critical Period Hypothesis has traditionally been used to explain why second language acquisition is difficult for older children and adults. Johnson and Newport (1989) examined the way in which the critical period hypothesis might account for second language acquisition. They distinguished two hypotheses, both of which assume that humans have a superior capacity for learning language early in life. According to the maturational state hypothesis, this capacity disappears or declines as maturation progresses, regardless of other factors. The exercise hypothesis further states that unless this capacity is exercised early, it is lost. Both hypotheses predict that children will be better than adults in acquiring the first language. The exercise hypothesis predicts that as long as a child has acquired a first language during childhood, the ability to acquire other languages will remain intact and can be used at any age. The maturational hypothesis predicts that children will be superi or at second language learning, because the capacity to acquire language dismisses with age. Are children in fact better than adults at learning language? The evidence is not clear-cut as is usually thought. Snow (1983) concluded that contrary to popular opinion, adults are in fact no worse than young children at learning a second language, and indeed might even be better. Children spend much more time than adults learning the language. Snow and Hoefnagel-Hohle (1978) compared English children with English adults in their first year of living in the Netherlands learning to speak Dutch. The young children 3-4 years old, performed worst of all. In addition, a great deal of the advantage for young children usually attributed to the critical period may be explicable in terms of differences in the type and amount of information available to learners. There is also a great deal of variation: some adults are capable of near-native performance on a second language, whereas some children are less successful. They proposed that there is a change in maturational state, from plasticity to a steady state, at about age 16. The younger a person is, the better they seem to acquire a second language. There is evidence for a critical period for some aspects of syntactic development and, even more strongly, for phonological development. However, rather than any dramatic discontinuity, decline seems to be gradual. Second language acquisition is not a perfect test of the hypothesis, however, because the speakers have usually acquired at least some of a first language. Lenneberg supplied some evidence to support the CPH and he found that injuries to the right side caused more language problems in children than in adults. He also provided evidence to show that whereas children rapidly recovered total language control after such operations, and adults did not so, but instead continued to display permanent linguistic impairment. However, this evidence doesnt demonstrate that is easier to acquire a language before puberty. In fact he assumed that LA was easy for children. The CPH is an inadequate account of the role played in SLA, because this assumption was only partially correct. Only where pronunciation is concerned is an early start an advantage, and even then only in terms of success, not rate of acquisition. Developmental changes in the brain, it is argued, affect the nature of language acquisition, and language learning that occurs after the end of the critical period may not be based on the innate biological structures believed to contribute to first language acquisition or second language acquisition in early childhood. Rather, older learners may depend on more general learning abilities. In educational settings, learners who begin learning a second language at primary school level do not always achieve greater proficiency in the long run than those who begin in adolescence. The Critical Period Hypothesis is a particularly relevant case in point. This is the claim that there is, indeed, an optimal period for language acquisition, ending at puberty. However, in its original formulation (Lenneberg 1967), evidence for its existence was based on the relearning of impaired L1 skills, rather than the learning of a second language under normal circumstances. Conclusion As well as there is an agreement that corroborates the Critical Period Hypothesis set up by the nativists during the L1 acquisition, there is not such agreement when considering L2 acquisition. Contrary to what was thought about the impossibility to acquire an L2 after the end of the critical period, there is some evidence that show learning an L2 after puberty is also achievable. The theories that support this idea say that an adult or an adolescent learner will be able to acquire a native-like mastery in the L2 as a younger learner will do. Since the study of human brain is still very limited, some theorists contradict the non-presence of a critical period in SLA. For this reason, although it seems to be a prevalent theory about this aspect, it will be difficult to arrive to a general consensus.

The Years of Living Nakedly :: Personal Narrative Papers

The Years of Living Nakedly It's a big night for my parents. The friends have come over. The popcorn is popped and buttered and salted. Lively conversation coasts from the living room and into the kitchen where I'm planning my floor show. Why do old people lay about and gab and play Monopoly when they could simply sit back and let me amuse them? Who cares about who owns Marvin Gardens or who gets to be the Scotty Dog? It's Friday night, and all my parents can think to do is invite their friends over to play out their real estate fantasies in a languid waltz of little green plastic houses. Perhaps I'm just jealous because the Monopoly box is always cruelly out of my reach on the top shelf when I want to play -- as if I don't know enough not to swallow a game piece. At any rate, it's time for variety. I strip down buck, saddle my wooden, wheeled, bright yellow Playschool giraffe and scoot into the living room. Adult heads turn and eyes squint as cheeks divide into smiles. I bear down hard as my wheels abruptly meet the green shag rug and strain to plow on through. This is the moment I've been training for. If I don't make at least one complete circuit around the coffee table the whole venture will have been wasted. However, before my round is even half way finished, it's obvious that I've reached my goal. I am the center of attention. Who needs board games and popcorn when you've got a naked kid and his wooden giraffe? My victory is short-lived, though. Amid chuckles and sniggers, Mom quickly scoops me up and Dad impounds my ride, but the damage has been done. After my little cabaret, Monopoly will pale in comparison. In short order I find myself doing time behind the netted walls of my play penitentiary, my senses still reeling from the heady intoxication of a job well done. Let Mom and Dad tromp back to their game. Once I bust out of the stir, no get-together in town will be safe from my naked abandon. Whatever happened to the carefree days when we were young and didn't care what other people thought of us? When I was a little kid I wore absurdly generic clothes, shed them whenever my parents had company, scratched myself whenever I had an itch, and generally worked all manner of tomfoolery without any care as to what others would think.

Intro to Ethics Essay

Ethics is a field of study where people are encouraged to examine their own moral values and be able to examine the values of others. There are several types of ethics, but we wish to examine normative ethics and to differentiate between teleology and deontology. We also wish to examine and explain how virtue theory and character are connected. Normative ethics can be defined as arriving at a moral standard that regulates our right and wrong conduct. It is a search for an ideal behavior. Fieser notes that the Golden Rule is an exemplary example of a â€Å"normative principle (2006). Fieser also notes that there is one key assumption of normative ethics—that there is â€Å"only one ultimate criterion of moral conduct (Ibid). † There are three strategies of note—virtue theories, duty theories, and consequentialist theories. Virtue theories place the emphasis on learning a set of rules and more stress on developing good character traits (Ibid). It is one of the oldest normative traditions in Western philosophy (Ibid). Duty theories â€Å"base morality on specific, foundational principles of obligation (Ibid). Fieser notes four central duty theories. The first is put forward by Samuel Pufendorf, who placed all duties under the headings of duty to God, duty to self, and duty to others. The second is called rights theory, which was forwarded by John Locke. A third duty theory is emphasized by Kant, who put forward a single principle of duty. He states we have a â€Å"categorical imperative (Ibid). † A final duty based theory comes from W. D. Ross. He states that our duties are â€Å"part of the fundamental nature of the universe (Ibid). Consequentialist theories postulate that moral conduct is determined â€Å"solely by a cost-benefit analysis of an action’s consequence (Ibid). † Teleology and deontology are two diametrically opposed theories that propose two ways of approaching right and wrong. Teleological theory states that the ultimate criteria of what is morally right is the non-moral value that is brought to the table. According to Frankena, the â€Å"final appeal†¦must be to the comparative amount of good produced (1973). In other words, more good than evil must be produced to measure the action ‘good’ under a teleological theory. In deontological theories, â€Å"the basic judgments of obligation are all purely particular ones (Ibid). † There are two types of deontological theories—act deontological theories and rule deontological theories. Act deontological theories state we must decide what is the right thing to do in each particular situation. Rule deontological theories state that the â€Å"standard of right and wrong consists of one or more rules (Ibid). † Virtue theory and character are connected because we are each raised with a particular value system that guides us in our moral behavior. That virtue theory is ingrained in our character, therefore creating a unique individual with a unique value system. Ethics is a complex subject that is hard to define and defies explanation. It is intricate and complex and encourages us to think about our own morals and moral system. It encourages us to move beyond our narrow constraints of right and wrong to the broader implications of our moral thinking. We should constantly examine our ethics to make sure we are making proper decisions and we are not thinking only of ourselves, but of our fellow man as well.

Law of Negligence: 1st and 2nd essentials of Negligence Essay

INTRODUCTION Negligence is a part of that branch of Civil Law known as Tort Law. Hence, negligence is a tort. Other torts include nuisance, trespass (to person or goods or land), deceit, passing off, defamation and so on. This lecture will examine the tort of negligence, and will focus on the first two ‘essentials’ needed to prove an actionable case. Lecture 4 will consider the third essential, defences and remedies in Negligence. On successful completion of this lecture, you should (within the scope of the course) be able to: * define the meaning of tort * define negligence * identify and describe the three essentials needed to establish a case in negligence * describe and discuss the legal principles used to establish duty of care for negligent actions * describe and discuss the legal principles used to establish duty of care for negligent advice * identify the attributes of the hypothetical ‘reasonable person’ * identify and describe the guidelines used to establish breach in the standard of care TORT A tort is defined as a civil wrong (other than a breach of contract) in the form of a breach of duty for which the legal remedy is an award of damages. Tort Law is quite distinct from the Law of Contract. Pentony, Graw, Lennard and Parker (2003, p.367) puts the difference this way: â€Å"The main difference between tort and contract is that the law of contract essentially deals with the enforcement of rights that the parties have created for themselves through their agreement while the law of torts deals with the enforcement of rights that have been conferred by law – irrespective of agreement.† A tort will impose a duty of some kind on a person or persons in certain circumstances, and its breach can entitle the plaintiff to damages as  compensation for the loss or injury suffered. The rights that the tort law protects include the rights of individuals not to have their property, reputation, person or certain interests injured. NEGLIGENCE As noted above, Negligence is but one of a number of torts, albeit the most important one. Negligence is the doing of something which a reasonable person would not do or the failure to do something that a reasonable person would do, which inadvertently inflicts harm. That is, the plaintiff does not have to prove that the defendant either intended his act or its consequences. However, negligence involves more than just careless conduct, and involves a combination of the concepts of duty, breach and sufficient connection in law. Accordingly, there are 3 essentials which the plaintiff must prove ‘on the balance of probabilities’ in order to succeed in an action in negligence: 1. the defendant owed the plaintiff a duty of care; 2. the defendant failed to conform to the required standard of care; and 3. there was a sufficient connection in law between the defendant’s conduct and the damage (i.e. loss or injury) suffered by the plaintiff (note: the 3rd essential is often discussed in the literature under the heading of ‘damage’ instead of ‘sufficient connection in law† (for example, the Understanding Business Law text at page 718). There is little practical difference between the two terms for our purposes, and the essentials as listed above will be used in our discussions. The Law of Negligence has evolved dramatically during the twentieth century. Donoghue v. Stevenson [1932] AC 562 was a landmark case which laid down the test for duty of care and held that a manufacturer was liable to the ultimate consumer for any damage or injury arising from the consumption or use of goods which were faulty because of the manufacturer’s negligent act. A further watershed in negligence law in Australia came with Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225, where the court held that those who give gratuitous advice could be held liable for any damage if the advice was negligent. * * DUTY OF CARE The Defendant must owe the Plaintiff a duty of care, which the Plaintiff must prove on the balance of probabilities. If no duty of care is owed, the Plaintiff’s claim must fail. The judge at the trial has the responsibility for deciding whether or not a duty of care exists as the issue is a question of law having regard to the facts of the case. The method used to test the existence of a duty of care will differ depending on whether the action involves negligent advice or a negligent act. The test for duty of care in negligent acts is now relatively complicated, although it evolved from the relatively straightforward test from Donoghue v. Stevenson [1932] AC 562 which was based on whether or not the injury was reasonably foreseeable, and the closeness or proximity of the plaintiff to the defendant. On the other hand, the test for duty of care in negligent advice developed from Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225 and is based on whether or not the advice was for a serious matter which the adviser is expected to give his or her best advice and it was reasonable that the recipient act on the advice. * * Duty of Care for Negligent Acts * * Historical background: Doctrine of Reasonable Foreseeability and Proximity The historic test for establishing the existence of a duty of care in actions involving negligent acts was laid down by the House of Lords decision in Donoghue v. Stevenson [1932] AC 562. In that decision, the twin duty of care elements of ‘reasonable foreseeability’ and ‘proximity’ were stated in the ‘neighbour test’ by Lord Atkin: * * The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the  lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. * * Hence, for Lord Atkin’s neighbour test, two issues needed to be satisfied: reasonable foreseeability and proximity. For reasonable foreseeability, the question was – would a reasonable person, in the position of the Defendant, have foreseen the likelihood of injury to the Plaintiff arising out of the Defendant’s behaviour? For proximity, the question can be posed thus – was the proximity (closeness) of the injured Plaintiff such that the Defendant ought to have had him/her in mind when doing the alleged negligent act? The test of reasonable foreseeability is an objective one: that is, what would a reasonable person have foreseen, rather than what the Defendant actually foresaw at the time. Further, it is not necessary that the exact nature of the loss or injury been foreseen, just the likelihood of injury of the same general character as that suffered. Both aspects do not require the Defendant to be actually aware of or know the Plaintiff as an individual – it is sufficient that the plaintiff belong to a class of persons of whom the Defendant ought to have been aware when doing the alleged negligent act. * ————————————————- Case Summary reading – Understanding Business Law (2008) text, page 695/696 ————————————————- Donoghue v. Stevenson [1932] AC 562 * * Contemporary situation * From a number of decisions in the 1990s, the High Court moved decidedly away from a ‘one-best’ approach for duty of care for  negligent actions and opted for a ‘broad approach’. In particular, the High Court expressed dissatisfaction with ‘proximity’ – â€Å"proximity is no longer accepted as the defining test [authors’ italics] to establish whether there is a ‘duty of care’ in any particular case† (Pentony, Graw, Lennard and Parker, 2008, p. 698). As the Understanding Business Law text (at page 698) notes, the following pattern appears to best represent current High Court thinking in the establishment of a duty of care: * * 1. Determine whether or not a reasonably foreseeable risk of injury existed; without reasonable foreseeability, no duty of care can exist. In some cases (especially those involving direct physical harm from the negligent action), reasonable foreseeability may be adequate in establishing a duty of care by itself. * * 2. Determine whether or not the present case is analogous to cases in which a duty of care has already been established (or is in a category in which a duty of care has been held not to exist). For example, employers are under a general duty of care, which cannot be delegated to others, to provide a safe system of work for their employees. The driver of a motor vehicle owes a duty of care to pedestrians, other road users and adjacent property owners. Other relationships which may give rise to a duty of care include: professionals to clients, schools to students and manufacturers to consumers. * * 3. If the case does not fall into an established category, the Court may look at the important features of the case to establish whether a sufficiently close ‘neighbourhood’ relationship exists to justify a duty of care. In establishing this, the courts can consider the plaintiff’s vulnerability in the matter, along with their reliance on the wrongdoer, the wrongdoer’s assumption of responsibility (if any) and the wrongdoer’s level of control in their actions. * * 4. Determine whether or not ‘policy’ considerations exist which may work against the finding of a duty of care in such circumstances, especially where a defendant might otherwise be subjected to liability of an indeterminate extent; such considerations â€Å"allow the courts to weigh competing considerations of legal policy to determine whether, despite proof of foreseeability and neighbourhood, a duty should not be imposed† (Pentony, Graw, Lennard and Parker, 2003, p. 374). * * ————————————————- Specific reading from the Understanding Business Law (2008) text * ————————————————- Chapter 22, section 22.22 through 22.29 discusses the contemporary approach in detail. * * Once the facts of the case support the finding that the Defendant owed the Plaintiff a duty of care when doing the alleged negligent act, it does not automatically lead to an award of damages, as the plaintiff must still prove the other essentials: * (i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, Lecture 4) Duty of Care for Negligent Advice There are clear differences between negligent words and negligent acts. According to Chief Justice Gibbs in Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225, there are three key points of departure, summarized as follows. First, negligent words cannot cause loss by themselves – they cause loss only because persons act on them in reliance. Second, it is not uncommon for people in social or informal contexts to make statements less carefully than if they were giving advice in business or  professionally. Last, words may foreseeability receive such a coverage or circulation that the application of Donoghue v. Stevenson (i.e. neighbourhood) might lead to many claims for large amounts of damages. Accordingly, the High Court in Shaddock developed the following test involving the following three questions, all of which must be answered in the affirmative for a duty of care to exist: 1. Was the advice given on a serious matter? 2. Did the speaker realise, or ought he to have realised, that his advice would be acted upon? 2. Was it reasonable for the recipient to act on the advice? ————————————————- Case Summary reading – Understanding Business Law (2008) text, pages 729-730 ————————————————- Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225 Once the facts of the case support the Shaddock tests, it can be concluded that the adviser owed the plaintiff a duty of care. However, such a finding does not automatically lead to an award of damages, as the plaintiff must still prove the other essentials: (i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, Lecture 4). * BREACH OF STANDARD OF CARE Given that a duty of care is owed, then how much care has to be exercised? The defendant has to take reasonable care, that is, to act as a reasonable person would have in the circumstances. The ‘reasonable person’ is not a real person – merely a hypothetical benchmark or device used by the courts, and is deemed to have the following attributes: 1. Intelligence There is a presumption of average intelligence. If a defendant has above average intelligence, this person is not judged according to above average intelligence. On the other hand, if a person has below average intelligence, this person is judged according to the same standard – the standard for a person of average intelligence. 2. Knowledge and Skill There is a presumption of a certain level of knowledge and skill that can reasonably be expected of persons in the position, trade, qualifications or profession of the defendant. The defendant’s actual knowledge and skill are generally irrelevant, as the presumed amount depends on the qualifications the person possesses. For example, drivers must have the skill of a competent driver, and people in a trade, profession or business are measured by standards of knowledge and skill which one can reasonably expect in the trade, profession or business. These standards are set by objectively analysed community standards and not the prevailing standards of the particular profession which may have lagged behind perceived community standards. If a person holds out that they have special knowledge or skill not normally associated with the trade, business or profession, then that person will be judged on the basis that he does have these superior standards. However, if people who have additional expertise do not hold themselves out as having such additional expertise, then they will only be judged by the standards applicable to the trade, business or profession they are practising. There are some exceptions, including minors, who are judged against normal children of the same age. * * Guidelines as to Breach of Standard of Care The Courts have developed various guidelines which may be relevant and useful in determining a breach in the standard of care in the circumstances: * The Probability of Harm * The Seriousness of Possible Injury * The Costs and Opportunities of reducing or avoiding the risk * The Value of the Defendant’s Conduct * Conformity with Established Standards * * The Probability of Harm The guideline establishes that the greater the probability of harm, the greater the amount of care which has to be taken. That is, the greater the risk of some kind of harmful injury or loss occurring in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. * ————————————————- Case Summary reading – Understanding Business Law (2008) text, page 709 ————————————————- Bolton v Stone [1951] AC 850 * * The Seriousness of Possible Injury The guideline establishes that the more serious the possible consequences of injury, the greater the degree of care which has to be shown. That is, the greater the likelihood that some serious injury will arise in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. * ————————————————- Case Summary reading – Understanding Business Law (2008) text, page 708 ————————————————- Paris v Stepney Borough Council [1951] AC 367 * * The Cost and Opportunities of Reducing/Avoiding the Risk The guideline establishes that when cost and difficulty of avoiding risk is great and the actual risk is small, then there is less likelihood of a breach, and vice versa. That is, if the cost and difficulty of avoiding the risk is small and the actual risk is great, then there is a greater likelihood of a breach if remedial action is not taken. ————————————————- Case Summary reading – Understanding Business Law (2003) text, page 381 ————————————————- Latimer v AEC Ltd [1953] AC 643 (section 16.40) * ————————————————- Case Summary reading – Understanding Business Law (2008) text, page 712 ————————————————- Haley v London Electricity Board [1965] AC 778 * * The Value of the Defendant’s Conduct The guideline establishes that the less the social or economic value of the defendant’s conduct the greater the likelihood of a breach in the standard of care and vice versa. This of course does not mean that providers of essential services can be careless. The guideline arguably imposes a public policy dimension on the standard of care issue. * Conformity with established standards Conformity with established standards in any trade or profession is important evidence that reasonable care exercised, and vice versa. ————————————————- Case Summary reading – Understanding Business Law (2008) text, page 714 ————————————————- Derrick v Cheung (2001) 181 ALR 301 ————————————————- Case Summary reading – Understanding Business Law (2008) text, page 715 (section 22.46) Mercer v Commissioner for Road Transport and Tramways (NSW) (1937) 56 CLR 580 The standard of care is set by reference to objectively assessed community values. Indeed, just because a defendant follows common practice does not necessarily show that he is not negligent as a common practice may be shown by evidence to be itself negligent. * * ————————————————- Reading for this lecture from the Understanding Business Law text * ————————————————- Read Chapter 22, sections 22.1 through 22.47.; sections 22.67 through 22.74 * * * Self test exercises – Lecture 3 Multiple choice questions 1. Which of the following is true of torts? a) includes any civil wrong b) has an award of damages as the legal remedy c) does include breaches of contract d) all of the above e) both (b) and (c) above 2. Which of the following is not relevant in establishing Negligence? a) there was a contractual agreement between the plaintiff and the defendant b) the defendant failed to show the required standard of care c) the defendant owed the plaintiff a duty of care d) the defendant intended to harm the plaintiff e) both (a) and (d) above 3. The twin tests of reasonable foreseeability and proximity have historically been used to establish a) whether or not a breach in the required extent of care has arisen b) a duty of care for negligent actions c) that the damage suffered by the plaintiff was not too remote d) the defendant’s liability for damages in tort generally e) none of the above 4. Which of the following is relevant to the contemporary approach to establishing a Duty of Care for negligent conduct? a) determine whether or not a reasonably foreseeable risk of injury existed b) determine whether or not the case before the court is analogous to previous cases in which a duty of care has been found to exist c) determine whether a sufficiently close ‘neighbourhood’ relationship exists to justify a duty of care d) determine whether or not policy considerations exist which may work against the finding of a duty of care e) all of the above 5. In which of the following is Donoghue v Stevenson [1932] most associated in this unit? a) value of the defendant’s conduct b) remoteness of loss c) causation d) duty of care for negligent acts e) contributory negligence 6. Under the contemporary approach to establishing a Duty of Care, which of the following relationships would likely give rise to a duty of care? a) Alan, an employer and Bob, an employee of Alan b) Echo, a driver of a motor vehicle, and Foxtrot, another road user c) Alpha, a doctor, and Bravo, his patient d) Maker, a manufacturer, and User, a consumer of his products e) all of the above 7. Which of the following is a requirement for establishing duty of care in negligent advice from Shaddock v Parramatta City Council (1981)? a) the advice must be true and correct b) it was reasonable for the recipient to act on the advice b) the speaker realised or should have realised that the recipient would act on the advice c) the recipient paid for the advice e) both (b) and (c) 8. In relation to an action in Negligence, how much care must the defendant have shown in the circumstances to avoid breaching the required standard of care? a) the amount of care a reasonable person would have shown b) the amount of care the plaintiff would himself have shown c) the amount of care the defendant actually showed d) the amount of care an ordinary person standing nearby would have shown e) the amount of care a lawyer would have shown in the circumstances 9. In which of the following is Haley v London Electricity Board [1965] most associated in this unit? a) probability of harm b) seriousness of possible injury c) costs and opportunities of avoiding the risk d) value of the defendant’s conduct e) conformity with established standards 10. In which of the following is Paris v Stepney Borough Council [1951] most associated in this unit? a) probability of harm b) seriousness of possible injury c) costs and opportunities of avoiding the risk d) value of the defendant’s conduct e) conformity with established standards 11. In which of the following is Derrick v Cheung (2001) most associated in this unit? a) probability of harm b) seriousness of possible injury c) costs and opportunities of avoiding the risk d) value of the defendant’s conduct e) conformity with established standards 12. In which of the following is Bolton v Stone [1951] most associated in this unit? a) probability of harm b) seriousness of possible injury c) costs and opportunities of avoiding the risk d) value of the defendant’s conduct e) conformity with established standards * * * * Short Answer Questions * * Question 1 In a negligence case, name and describe one (1) guideline which the court may use to determine whether the required standard of care has been met. Question 2 Briefly explain the significance of the decision in Donoghue v. Stevenson. Question 3 In the tort of negligent advice, how does the law determine whether the defendant owed the plaintiff a duty of care? Question 4 Who or what is a ‘reasonable person’? LAW1100D TUTORIAL 3 Question 1 The WA Parliament passes legislation and an industry body is concerned about the interpretation and application of a particular section which states: â€Å"no person shall sell or offer to sell an offensive weapon in a shop.† Unfortunately, there is no definition of the term ‘offensive weapon’ in the legislation. The industry body’s concern about the possible application of the Act to four of its members (a supermarket, a hobby shop, a coffee shop proprietor and an antiques shop owner) centres around four possible scenarios: (i) Would the section apply to a supermarket which gives away a free steak knife for every purchase of goods over $100? (ii) Would the section apply to a hobby shop which sells a plastic toy gun for $20 to a customer? (iii) Would the section apply to a coffee shop in which a customer drinking coffee at a table also sells a flick-knife for $15 to another customer? (iv) Would the section apply to an antique shop which sells a Napoleonic cavalry sword to a collector for $25,000? What is the likely interpretation of the statute for each of these scenarios? Use the rules of statutory interpretation to support your answer. Question 2 A section of an Act provides as follows: â€Å"Where a mortgagee sells land to recover the amount of a loan advanced on the security of the land and the sale of the land provides more than the balance of the mortgage, the balance after sale shall go to the person entitled to the property.† Mark mortgaged his land to ABC Bank in return for a loan of $200,000. Mark is unable to repay the loan, and the ABC Bank (which was given the power of sale by the mortgage document) sold the land to Fred for $250,000. Using the rules of statutory interpretation, which party gets the balance of $50,000 – is it ABC Bank, Mark or Fred? Question 3 â€Å"We are told that law is a set of rules that is ultimately enforced in the Courts. One source of law is statute law. To enforce a rule in a statute,  the meaning of it must be understood. To understand the meaning, the words of the rule must be interpreted. If we are to have confidence in the law, this interpretation must be consistent case after case.† Reflect on the above statement, and then describe the aids to interpretation provided by the Parliament and the common law statutory interpretation rules used by the Courts. In your answer, discuss whether or not you think these aids to interpretation and rules are sufficient to ensure the consistent interpretation of statutes.