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This essay will obtain and discuss the legal obligations and regulations of the company, and whether the company adhered to these regulations or where the company did not meet set health and safety (H&S) guidelines.

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Introduction

Introduction A member of a leisure company was injured when some poorly stacked equipment toppled and struck him. The equipment had been stacked by a member of staff who had previously been warned for carelessness and ignoring proper procedures. This essay will obtain and discuss the legal obligations and regulations of the company, and whether the company adhered to these regulations or where the company did not meet set health and safety (H&S) guidelines. For the remainder of this essay the injured party will be referred to as "the member" or the "plaintiff" (the person making the claim), the employee who poorly stacked the boxes will be referred to as "the employee" and the leisure company will be referred to as "the company". The company may be liable to civil action as they were responsible for the equipment fallen on the member. This accident may leave the company liable to both a civil and criminal court case. The offences (failure to comply with any regulations made under Act) may be tried summarily at the magistrates court or on indictment in the crown court. The burden of proof is different in criminal and civil cases, in criminal cases the prosecution has to prove the defendant was guilty beyond reasonable doubt, in a civil case the claimant (the member) has to prove that he was owed a duty of care and that this duty of care was breached. ...read more.

Middle

The actions that occurred could have breached the following torts: tort of negligence, tort of breach of statutory duty or the tort of vicarious liability. Under tort law the negligence of the company or the employee may have been unintentional but it is still a tort. For the tort of negligence proof of negligence must be shown and the duty of care by the plaintiff must be defined. Section 47 (2) states "Breach of duty imposed by health and safety regulations shall, so far as it causes damage, be actionable except in so far as the regulations provide otherwise". (Smith et al., 1993. p 25). In a claim for negligence it is necessary for the member to show: 1). The company owed him a duty of care, 2). That the company was in breach of that duty, 3). That as a result of the breach the member suffered damage. (Goodman, 1988). In a claim for negligence it must be considered whether a duty of care existed. Once the existence has been established, the question of breach turns to whether the defendant exercised the degree of skill and care in the performance of the tortious duty. If the defendant's duty was only to protect the plaintiff against personal injury or physical damage, then that kind of damage must be inflicted in order to complete the tort of negligence. (Jackson & Powell, 1992). ...read more.

Conclusion

(HSE-Databases.co.uk, 2002b). In the first case the defendant had been negligent which led to the child having the accident, whereas it was the employee's negligence caused the accident in the leisure company rather than the management. In the second case it was a lack of supervision, which led to the death of the child. Had the management of the company been better supervising the employee or the injured member the accident may not have occurred. Conclusion This essay has shown that a many number of acts and regulations have been broken. With more information on the case the court would either find the company and / or guilty of not meeting the said regulations set out in the acts. The company could be made liable through the health and Safety executive for criminal and / or the member for civil action for the injuries sustained. If the company was made liable for the act of the employee (under vicarious liability) they would be able to claim from that such other contribution which could be found by the court to be just and equitable having regarded the extent of the employee's responsibility for the damage in question, from the Civil Liability (Contribution) Act, 1978 sections 1&2. (Goodman, 1988). This means the company could claim that the employee knew how to do his job properly and he ignored proper procedures, which then led to the accident taking place. So if the court agreed with this claim the employee would be required to pay the company the money they had to pay out to the injured member. ...read more.

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