Safety and Environmental Health Law 265 Semester 1, 2024

Assignment 2 35% of Semester Marks

Due: Monday April 29, 2024 @1pm WST by upload into Grade Centre

Francesco is employed at a local organic produce outlet, 'Borgo's'. The outlet is owned by Marc and his partner Jorge and is registered as a business under the name of Borgo Panigale Organic Pty Ltd. Marc works at the business managing staff and equipment as well as organising the produce while Jorge looks after marketing and financial matters. Although generally a good employee, Francesco can, on occasion, take short cuts in the performance of his duties and forgets to follow instructions sometimes. Marc and Jorge have not mentioned this to him, however.

In February 2024, Francesco falls in the carpark at the rear of the outlet breaking his left wrist as well as fracturing his collarbone. His movement is also compromised due to back pain. At the time of the incident Francesco was practising his dance moves as he belongs to a local hip hop group and is competing in a local event in the coming weeks. The carpark was, however, slippery as it had been interfered with by Alex, Marc's brother who also works at the outlet. Alex had previously poured some automotive solvent on the ground. He did this as he does not like Francesco all that much and thinks he should have had Francesco's higher paid position at the outlet because he is family. Marc was present whilst this incident occurred. He took Francesco to a nearby hospital for treatment. The hospital certified that Francesco was unfit for work for at least two weeks and admitted him as a patient. Francesco was released from hospital a week after the incident.

Although he later returns to work, he continues to experience some discomfort and pain due to his injuries although he hopes that this is only a temporary. He also is required to take multiple doses of medication each day along with physio and hydrotherapy each week. In addition, Francesco sees a local psychiatrist as he needs help in coping strategies in addition to general anxiety concerns.

Business is not going too well for Marc and Jorge several months later, however, so they ask Francesco to establish a pop-up stall at a local outdoor market in order to sell organic produce from Borgo's. This venture is successful and, although very busy, Francesco is happy enough but feels that the crowded location is not helpful in his recovery.

Please see over

Meanwhile, Francesco sees his local doctor who refers him to a specialist for a review. The specialist confirms that he has ongoing problems. In fact, the specialist is of the opinion that the injuries have resulted in an impairment of about 18% which is potentially permanent resulting in a need for ongoing medical treatment. The collar bone break has, however, since healed. Francesco became distressed upon hearing the news and is often found to be teary and emotional while at work and thinks that he is near a full emotional breakdown. He feels that he should be compensated by Marc and Jorge for all of these issues.

Question: Using the 4-step process answer the following (be sure to include appropriate case law in your discussion and analysis):

Discuss whether Francesco will be successful in an action in common law negligence against Marc and Jorge for the injuries he has suffered as a result of workplace injury. Be sure to discuss the non-delegable duty of care in your answer.

Do Marc and Jorge have any common law defence if Francesco is successful? (even if you did not find this in 1).

Note there is no need to discuss Work Health and Safety/Occupational Health and Safety legislation or Breach of Statutory Duty in this question. The maximum word count (there is no minimum) for this assignment should not exceed 3000 (not including references, cover sheet, Bibliography/Reference list).