Business Construction Companies Clough Ltd Australia

Question: Describe about the Business Construction Companies for Clough Ltd Australia. Answer: 1 (A) The company that will assist in the understanding of this solution is Clough Ltd Australia which is a construction company. From the outset the compliance strategies will be contained in a competition and consumer compliance document that will available at the companys website and a hardcopy of it will also be available at each of the company office. The document will also be a must have document for every staff and management of that they can clearly understand the companys compliance Product safety The company will outlay the various steps it has taken and it usually applied to ensure that the standards of the products and services have met the minim requirements provided by the Australia consumer and competition. In the product safety discussion, there will also be an assurance that that is given to the consumer that the product is of the required standard and quality. This will act as a guarantee on the safety of the product or services that are supplied by the company. Staff Training The employees of the company will be given a specialized training that is aimed at ensuring that they are equipped with the skill to meet consumer satisfaction. The training will also be aimed at training the employees to avoid anticompetitive behavior that can easily ruin the reputation of the company. Complaint Handling It is always very vital for any company to have a mechanism that will ensure they get a feed back from the consumers. The company will also invest in a feedback mechanism that will ensure that the consumer complaints are addressed. Other than where there are complaints from other companies concerning the anticompetitive behaviors the company will also outline a mechanism on how such problems will be handled. Q1( B) Product safety It is submitted that without an assurance on the quality and safety of the product, consumers will shy away from using the services or products of this company. It is therefore necessary to ensure that the consumers have confidence in the quality and safety of the products of the company. Staff Training Training is vital in the sense that the staff of the company will ensure that they avoid doing certain things that may not be allowed by the company policies and also by law. This will prevent suits that may be launched against the company for vicarious liability due to the actions and omissions of their staff members. Complaint Handling The company will only grow if it learns to accept corrections and better its service. Through an effective complaint handling strategy in the company the, they will also be able to avoid legal suits because some complaint that are brought by consumers are justiciable in court of law. 1(C) Effective management of Resources The management should ensure that the resources that are available at reach are used to ensure compliance. The highly specialized and skilled personnel should be used to ensure that the product safety in the company is not questionable. The legal resource that is available should be used to ensure that not to fight legal claims for non compliance but to ensure that they bring the company to understanding of the legal implications of non compliance and thus prevent the numerous legal suits. Practical compliance The company management should ensure that there is practical compliance and not a theoretical one that is only a command on paper. Real compliance ensures that every individual has abided to the compliance guidelines that are set out in the policy documents of the company. Identifying Risks The management should also ensure that they identify the possible risks that are likely to affect the company and ruin its reputation. Risk management and assessment ensures that the management does not invite negligence actions for a breach of duty of care. Where the company does not foresee the harm that may be caused to persons that use their product or services them likely to suffer costs in form compensation that may have to pay to claimant in legal actions. The company should also be able to identify areas of legal risk, for instance where they have failed to comply with legal positions concerning (2) Preliminaries Negligence is the law that obligates an individual not to put other individual in a position that they will be harmed by a foreseeable risk that is caused by ones acts or failures. In Donoghue v. Stevenson, (1932) the court said that we should have our neighbors in mind whenever ones actions are likely to affect them. It was in this case that that the settled precept of the neighbor principle was brought to life. Lord Artkin defined a neighbor as the person who has the high chances of being affected by ones acts or failures. For Loki to bring a successful civil action claim in negligence against Bungee World Ltd. he must prove on a balance of probability that the desiderata for negligence claim are satisfied (Grant v Australian Knitting Mills, 1936). Proof of Duty of care Firstly, Loki must prove that there was a duty of care the Bungee owed him as a client of their service. The court in Caparo Industries v Dickman (1990) clearly set out the principles that establish the duty of care in three stage form. From the outset the, Loki must show that he kind of harm that he suffered was foreseeable and there it could have been avoided if Bungee exercised their duty of care (Kent v Griffiths, 2000). Loki as the claimant in this case, must also show that he was within the vicinity that the defendant actions will be likely to affect him (Home Office v Dorset Yacht Club, 1970). By looking at the circumstances of this case form the face value it can be inferred that Bungee owes its clients a duty of care. However, it bears noting that in the form that the Loki signed there a clause that excluded Bungee from any liability incase of harm, death or injury. Exclusion clause The general law in contract law is that once an individual signs a contract, they are bound by the terms in it even in circumstances that they did not read or understand the contract (L'Estrange v Graucob, 1934). This position is not absolute since where the defendant did not give sufficient notice of the exclusion clause or unfair term they can not rely on the term to avoid liability. The defendant must have taken certain measures to ensure that the claimant is aware of the existence of any unfair term or exclusion clause (Thompson v LMS Railway 1930). Proof Breach of Duty and Causation A claim in negligence will not be successful if the defendant was not the cause of the harm that was the claimant suffered. The claimant must show that Bungee breached the duty of care that they owed him and as a result he was harmed. In Barnett v Chelsea Kensington Hospital (1968) it was held that, while the claimant duty is to prove causation the defendant will also have to prove that the harm was bound to occur anyway albeit they did not exercise any precautions. Possible defenses for Bunge Bungee will avoid the liability ion this case if they can rely on the following given defenses; Volentis non fit injuria It possible that Bunge can argue that the claimant brought themselves to the harm that they suffered. The mountain in this argument is that it may be contrary to logic and reason that someone will willingly bring harm to themselves where the intention was to enjoy a service that an implied condition exist that it will be of quality. Contributory Negligence Bungee world limited may also claim that the claimant was also liable in this case since he may have failed to observe the necessary instructions that given during such activities. It is important to have in mind that in contributory negligence the defendant is not exonerated from liability absolutely. Both the claimant and the defendant become jointly liable for the harm or injury that the claimant has suffered (Revill v Newbery 1996). Remedies It is submitted that if Luke proves to the satisfaction of the court that Bungee is liable for the tort of negligence the court will award the following remedies. General damages Loki claims that he has suffered a nervous shock as a result of the incident. The appropriate damages that can be awarded in this case is an award for General damages which are damages for non economic loss such as pain and emotional distress. This award of these damages relies on the discretion of the court though by dint of the Civil Liability Act 2002 of Australia there is a limit that has been place fro the amount of damages that can be awarded fro this type of damage. Special damages These are damages for economic loss such as medical expenses and the loss of expected income due to the harm that the claimant has suffered as a result of the harm cause by the defendant. If Loki shows that apart from the nervous shock suffered he has also suffered physical harm that requires medical attention and also he cannot attend to his daily work, medical expenses that will be incurred in treating the injury and the loss of income in the days that he was forced to be away from work due to the injury, will be awarded as special damages. (3) National Employment Standards The National Employment Standards (NES) have been espoused in the Fair Work Act (2009) which governs the employee-employer relationships in Australia. All contracts that are related to employment are required to abide by these standards. The standards set out the very basic and minimum working conditions that should be observed in any working environment in Australia. When the NES were introduced the Australia workers had a reason to be happy because it set the set the minim wage that should be paid to any employee in Australia. According to majority of the employees these was a success because they were now free from the harsh working conditions that employers used to impose. What is even more fascinating is the fact that the mandatory equipment for any place of work in Australia. Ensuring Compliance Among the provisions that are provided in the NES code include the maximum number of hours that one should work in a week, parental leave and compassionate leave . To enable the company that has been identified in port one complies with the NES it is prudent that it incorporates the principle of individual bargain between the employers and the employee. Individual bargain is a flexible mode or ensuring that the employer and employee negotiate on the terms of employment. The bargains are regarded as of more value to employees because they are free to bargain for higher wages than those set in the NES. Individual bargain is a concept that was brought by the Work choices Act (2005). However, the bargain should not contravene the NES by negotiating for minimum standards than what is set. The employers can also use collective bargain as a form of ensuring that the NES are complied with where the employer unions and the employee unions negotiate on the standards that should be applicable w hich will not at all be below those in the NES. It is of interest to not though that unions appear to have even extinguished in Australia. (4) Unconscionable conduct Unconscionable conduct is one where a party with superior knowledge on a product in the market takes advantage of the one without such knowledge to exert pressure on them so that they can buy the product or service. The court in Google Inc. v ACCC (2013) held that the advertisements that were made by Google were misleading and deceptive and noted that such a conduct was contrary to the Australia Consumer Law. The Australia Consumer Law provides in Section 20 that a person should not conduct themselves in an unconscionable manner whenever they take part in any trade or commerce. Unconscionable conduct has corrosive effects than just mere statements duress or undue influence. It is submitted that for Rebecca to prove unconscionable conduct she must apply the conditions that have been set under Australia consumer Law section 21(2). Firstly, the party that has conducted them in an unconscionable manner must have been aware of the fact that the other party had no idea of the products and functionality (ACCC v Radio Rentals Ltd 2005). Rebecca is an elderly woman and she has moved from Italy but her English speaking skill is not good. Dave a plumber takes advantage of this fact to exert pressure on Rebecca so that she can use his plumbering services and goods. Secondly, it must be shown that there was a clear difference in the power of bargain as one of the parties had the higher power. In this case, it is not in doubt that Dave had a higher bargain power. In Kakavas v Crown Melbourne Ltd (2013) the court of appeal held that the claimant understood the presentations and had reasonable opportunity to make an informed decision. Remedies As stated Rebecca is worried and she wants to end the contract. It is advised that she may apply for the following remedies after she has shown the above set legal principles. Rescission If Dave is found to be culpable of unconscionable conduct the agreement will be rescinded and the parties will be restored back to their precontractual position. If Rebecca comes to learn the truth about the price and nature of the services that Dave offered but waives her right to sue, the she will lose her right to rescind the agreement (Long v. Lloyd, 1958). Damages Rebecca can apply for damages will put her back to the position she was in before they entered into the agreement. (Smith New Court Securities Ltd. v. Scimgeour Vickers (Asset Management) Ltd, 1997). In this case the damages will be awarded to Rebecca fro the financial loss that she has suffered as a result of procuring the services of Dave. References Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 Australia Consumer Law 2010 Australian Competition Consumer Commission v Radio Rentals Limited [2005] FCA 1133 Barnett v Chelsea Kensington Hospital Management Committee [1968] 2 WLR 422 Breen C, Andrew S, 2010 Labor Law Federation Press, Caparo Industries plc v Dickman [1990] UKHL 2 Civil Liability Act 2002 Donoghue v Stevenson [1932] UKHL 100 Fair Work Act (2009) Google Inc v ACCC [2013] HCA 1 Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472 Grant v The Australian Knitting Mills ([1936] A.C. 562 Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 Kakavas v Crown Melbourne Ltd [2013] HCA 25 Kent v Griffiths [2000] 2 All ER 474 L'Estrange v F Graucob Ltd [1934] 2 KB 394 National Employment Standards (NES) Revill v Newbery [1996] 2 WLR 239 Smith New Court Ltd v Scrimgeour Vickers (Asset Management) Ltd [1996] UKHL 3 Thompson v London, Midland and Scotland Railway Co [1930] 1 KB 41 Work choices Act (2005