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Construction Law And Legislations Assignment Sample

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Introduction : Construction Law And Legislations

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In the territory of Australia Tort is a part of the Common Law related to civil wrongs. Individuals in Australia can bring a suit against any other individual, organization, or government for civil wrongs. Trespass and negligence are the most litigated torts in Australia. On the other hand, property laws in Australia are very systematic and well-designed with strict sanctions. In this report analysis of two case studies related to the tort of negligence and property law in Australia has been done.

Part 1: Law of Tort Case Study

The tort of negligence is caused due to lack of care and attention on the part of a person. This failure to perform the duty of one person can cause harm to another person (Cooney, 2021). Winfield and Jolowicz have defined the tort of negligence as a breach of the legal duty of taking care that had resulted in undesired damage to another person. Tort negligence is a very common tort that needs to have some common elements. People engaged in work that is likely to cause harm to any person in case not done with care. In case the negligence can cause harm to anyone’s property or life, the affected person has the right to sue the person, the negligence is done by whom. However, to prove negligence the elements of the tort of negligence need to be present in the case. The plaintiff has to show enough evidence that shows that the elements of negligence are present. On the contrary, the defendant needs to prove that the elements of negligence are absent. The final outcome of the suit will come on the basis of the case presentation by both parties. Here the negligence is done as alleged by the Darcy Construction Co. and in the following section the

Duty to take care

Duty of care is the 1st and most essential component of the tort of negligence that needs to be present in the case to prove negligence. The plaintiff needs to prove that the defendant has a legal duty toward the plaintiff that has not been fulfilled by him. In this case, the student must prove that Darcy Constructions has a legal duty towards her. In the case of "Grant V. Australian Knitting Mills", 1935, the plaintiff grant bought woolen clothes from Australian Knitting Mills and suffered from disease on the skin after wearing them. In this case, Australian Knitting Mills has been held responsible for manufacturing products unsuitable to wear (Dbpedia.org, 2022). However, in this particular case, the defendant may argue that the plaintiff has been crossing a construction demolition site consciously and hence the defendant does not have the duty of care.

Breach of duty

To prove the tort of negligence the student needs to prove the duty of care on the part of Darcy Construction has not been performed that has caused serious head injury to the student. The plaintiff needs to argue that the negligence is done as defined in the "Civil Liability Act", 2003. As stated in the Act the breach of the duty of care must be proven to be done by the defendant (Gotocourt.com.au, 2022). The standard of care needs to be fixed on the basis of the relationship between the plaintiff and the defendant (doctor/patient, employer/employee, tenant/landlord, etc.). In this case, the relationship between the construction company and the student needs to be proven.

The plaintiff needs to prove the existing standard of care has not been met. The worker knew the risk of harm, the nature of risk has the potential to cause serious harm and the worker did not take precautions to avoid the risk.

 The plaintiff needs to prove that the construction company has been well aware of the duty of care towards Casey, as she has been a student at the university, the worksite. The defendant knew students regularly pass through the area. In this way, the plaintiff can establish the relationship and create a standard of care. The plaintiff can further argue that the "Do not enter" was placed in an area that is out of visibility. Hence by not understanding the degree of danger, the students can easily enter the demolition site and in this way, the breach of duty can be proven. The plaintiff can use the precedent of “Donoghue v Stevenson”, 1932, that case has similarities to this case, and the “House of Lords” (HoL), has opined negligence has been done by the plaintiff in this case (Sclqld.org.au, 2022).

The defendant needs to prove the duty of care is not present and the standard of care is not unmatched. The presence of the "Do not enter" board proves necessary care has been taken on the part of the defendant. Casey first of all did not watch the board and secondly, her headphones were on so she could not hear the sounds. Here negligence is done by the plaintiff herself and not by the defendant.

Cause of Injury

To prove the tort of negligence the plaintiff needs to prove that he has suffered from an injury in the body or harm to the property due to the actions of the defendant. The victims' injury must be proven to occur only by the actions of the defendant. This rule is based on the Latin Phase, "Res ipsa", that states the injury can talk for itself. His injury of Casey can work as a piece of circumstantial evidence in this case. It can help the court to become determinative about the negligence of the defendant that led to an undesired event. Furthermore, Casey can argue that the injury is sustainable in character that had put an end to her education. Casey has been in the demolition site at the time of the accident and it would be hard for Darcy Constructions to prove Casey's argument vague.

The plaintiff can use the precedent of "Perre v Apand Pty Ltd", 1999 here. In this case, a potato crisp manufacturing company had sent bacteria-affected seeds for potato plantation to the farmers of South Africa (Luntz, 2007). The affected potatoes did not buy from the farmers later on as the Australian Law prohibited the imports. "The High Court of Australia" found Apan to have a duty of care toward the farmers and the cause of financial injury to them has been the negligence of Apand (Heinonline.org, 2022).

Proximity Cause

"Proximity cause" in the language of the law is an event that is linked with an injury. In tort, in case the proximity cause is proved the defendant is held liable. In the case of negligence, the proximity cause plays a vital role and must be proven to prove the case against the defendant. The plaintiff, in this case, needs to prove the injury of Casey would not have occurred without the actions of the defendant to prove Darcy Constructions liable. The reason for the injury has only been the actions of the defendant and nothing else needs to be proven.

Darcy Constructions, on the contrary, needs to prove that the actions of the construction company or the workers are not responsible for Casey's harm. In this case, the defendant can use the precedent of "Amaca Pty Ltd v Ellis", 2010, where the defendant has been proven not guilty of negligence as the proximity cause for injury of the plaintiff has failed to be proven in the High Court of Australia (Informit.org, 2022).

Damages

Casey in this case has suffered from a head injury due to the collision took place in the construction site. She had to spend a month lying in the hospital bed and now she cannot continue her education anymore. Proving the harm and injury cannot be heard by the plaintiff in this case. On the contrary the, the defendant cannot deny the event with the help of any evidence in the court.

Part 2: Property Law Case Study

Question 1

As per the information provided by the present owner of the property to Michael, they bought the property for further expansion; however, due to the occurrence of unexpected events, they are now selling the property. The owners have taken a loan to purchase the property, that needs to be repaid and the owners are selling the property to repay the loan. In Australia, every owner has the right to sell his or her property at any time on her wish and any person can buy property at any time (Gov.au, 2022). The Property Laws of Australia grant the right to sell the property to the owners.

In this case, a statement from the vendor must have been presented to Michael before the sale takes place. This statement needs to be prepared by the attorney of the present owner. The statement needs to attest by the current owners and then it needs to be presented to Michael before the transaction of the sale takes place. Michael can review the statement by any expert or by his attorney. The statement needs to include every information related to the property such as its title, the agreements related to the property, mortgages (in case any mortgage is present), outgoings (rates), and zoning (Cho et al. 2021). Any information about the state of the property needs not be included in the statement. A certificate of total needs to be provided with the statement that is a detailed account of the property

Question 2

The current owners imposed a condition on Michael that a retirement home will be built on one story so that the agenda of the owners for buying the land can be preserved. However, once the property is sold the current owners do not have any right over the property and hence cannot decide how the property will be used after the sale. If the matter had been related to the growth of vegetation the current owners could have shared their view as legal protection of trees is available in Australia that increases with the height of the tree (Gov.au, 2022a). "The Land and Environment Court of The New South Wales" has opined in a number of different cases under the Trees Act about this. However, no related legislation or precedent can be found in Australia to support this condition of the current owners.

Question 3

One of the neighbors of the property has informed Michael that the right of way across the property is held by them for the purpose of maintaining their own property that is situated beside the property to be sold. Neighbors can ask for permission from Michael to pass through the property and Michael has to permit it as maintenance is the legal right of the neighbors Gov.au (2022c). Courts in such cases pass decrees for making a driveway that can help the access to the property of both parties from the backside. In that case, also Michael will have to give space from his property for making the driveway.

Generally, people who have been allowed access to the property in another property for a particular purpose often forget that the original owner of the property is someone else. They often forget they cannot occupy it or use it in the way they want. A notable decay in such properties can be seen as compared to other privately owned properties. In this case, Michael and the neighbors need to agree that they can use each other’s property as only a passway for the maintenance of their own property and no harm to the property will be caused cautiously by them in each other’s property.

This is going to cause the development of the property, as well as the passway, to need to be there for the neighbors. The design will be always made on allowing space for a neighbor's pass way (Yanotti, 2021). Hence, the expansion cannot take place freely under the circumstances of the current case. As per the rules of “The Rights of Way” Michael can never ignore the legal rights of the neighbor and make new developments in the property ignoring the passway of the neighbors.

In the case of “Au v. Berlach”, 2022, similar circumstances have been observed. In this the plaintiff Dr. Au has a property beside the property of the defendants, Mrs. and Mr. Berlach on the Central Coast. In this case, the “Supreme Court of New South Wales” decided the plaintiff's property cannot be used for any purpose except for the particular purpose mentioned in the Easement by the defendants. Some other cases of the same background are “Hare v van Brugge (2013), Raciti v Hughes (1995), Treweeke v 36 Wolseley Road Pty Ltd (1973), Bland v Levi (2000), Raphael Glaser v Silvana Slaveva Smithwick, (2018), Shahin v Raedel (2017), Mantec Thoroughbreds Pty Ltd v Batur (2009)” and many more (Gov.au, 2022d). The related case laws are proof that the disputes related to the use of the property by a neighbor have been litigated issue in Australia in the past and Michael may involve himself in such a situation by buying the property. Michael needs to consider these facts before the sale takes place practically.

Question 4

Michael has been informed by another neighbor that the current owners have concealed some information from Michael. Michael has been informed that the current owners have leased a part of the property to another neighbor for the purpose of storing vehicles. Moreover, the neighbor can sublease or rent the property to some other person as well (Gov.au 2022c). All real estate properties such as homes, businesses, underdeveloped firms, and developed farms are included in the list of freehold properties in Australia, and freehold property can be sub-leased in this way (Deane et al. 2022). Moreover, freehold property can be sold, rented, or leased without any permission of the government in Australia. Under such contracts, the temporary tenants or lease can carpent, paint or cover the windows of the property in Australia (Gurran et al. 2022). In case a property is partly rented the property is called a Strata property. The garden, staircase, elevators, and parking are regarded as common area in Strata properties.

 Michael is compelled to honor the lease agreement of the property owner of the current time with the leasing neighbor. Any unfair termination of the agreement of the lease cannot be permitted by law and Michael may face lawsuit if he attempts to do so in the future under the provisions of “The Residential Tenancies Act”, 1997. Michael Needs to consider the facts related to the lease before buying the property from the current owners.

Conclusion

Cases related to Tort of Negligence and Property Laws-related litigations are rising in Australia with the passage of time. In this report, the analysis of two case studies related to these two litigated mattresses has been done in details. In the first part of the report, the design of presenting the suit of the tort of negligence has been done for the plaintiff and the defendant as well. In the 2nd part of the report, the matters that need to be considered before buying a property in Australia have been highlighted.

References

Journals

Cho, Y., Li, S. M., & Uren, L. (2021). Understanding Housing Affordability in Australia. Australian Economic Review54(3), 375-386. https://doi.org/10.1111/1467-8462.12435

Cooney, H. (2021). Causation and Contributory Negligence: The Use and Misuse of Causal Concepts in Cases of Misleading Conduct. University of Western Australia Law Review, Forthcoming49(1), 2022. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3966157

Deane, F., Hamman, E., & Huggins, A. (2022). Negotiatingexisting property rights regimes. In Natural Capital, Agriculture and the Law (pp. 30-55). Edward Elgar Publishing.

Gurran, N., Maalsen, S., & Shrestha, P. (2022). Is ‘informal’housing an affordability solution for expensive cities? Evidence from Sydney, Australia. International Journal of Housing Policy22(1), 10-33. https://doi.org/10.1080/19491247.2020.1805147

Luntz, H. (2007). The use of policy in negligence cases in the High Court of Australia. In Private Law in Theory and Practice (pp. 67-96). Routledge-Cavendish. https://www.taylorfrancis.com/chapters/edit/10.4324/9780203945469-12/use-policy-negligence-cases-high-court-australia-harold-luntz.

Yanotti, M. B., & Wright, D. (2021). Residential property in Australia: Mismatched investment and rental demand. Housing Studies, 1-22. https://doi.org/10.1080/02673037.2021.1929858.

Websites

Dbpedia.org (2022). Grant v Australian Knitting Mills.http://dbpedia.org:8891/page/Grant_v_Australian_Knitting_Mills

Gotocourt.com.au (2022). Negligence in Queensland (QLD). https://www.gotocourt.com.au/personal-injury/qld/negligence/#:~:text=There%20are%20three%20elements%20that,or%20injury%20to%20the%20victim.

Gov.au (2022a). Property Rights https://www.alrc.gov.au/wp-content/uploads/2019/08/ir_127ch_7_property_rights.pdf

Gov.au (2022b). Land and environment court of New south Wales.https://www.lec.nsw.gov.au/

Gov.au (2022c). Civil Law (Sale of Residential Property) Act 2003https://www.legislation.act.gov.au/a/2003-40

Gov.au (2022d). Supreme Court New South Wales.https://www.caselaw.nsw.gov.au/decision/17ed6b98541acf8759ecf916

Heinonline.org (2022). Perre v Apand Pty Ltd (1999) 198 CLR 180https://heinonline.org/HOL/LandingPage?handle=hein.journals/monash31&div=21&id=&page

Informit.org(2022). A common law view of causation, science and statistical evidence in the courtroom : Amaca Pty Ltd v Ellis [2010] HCA 5. https://search.informit.org/doi/10.3316/agispt.20112110

Sclqld.org.au (2022). Donoghue v Stevenson [1932] AC 562https://legalheritage.sclqld.org.au/donoghue-v-stevenson-1932-ac-562.

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