CSM80003 Construction Law and Contract Management Assignment Sample

CSM80003 Construction Law and Contract Management

Each question caries the marks indicated

The Test has Two Questions: Answer both questions

Word limit: 1000 - Your answers to both questions should not exceed 1000 words in total. (As a suggestion, you may want to write about 750 words for question one and about 250 words for question two)

QUESTION ONE (30 marks)

Anania is an apprentice with H&M Constructions and has been working under the supervision of Mari, the Principal Contractor, for about four weeks on a construction project for Muhammad Ali's first home in Springvale, Victoria. On 26th May 2023 while climbing up the building scaffolding, Anania noticed that the scaffolding below him was breaking. In trying to avoid falling with the scaffolding, Anania jumped down from about five metres up. Anania landed on broken glass that cut his hands and face. Anania also suffered a broken back. Anania was not wearing work appropriate his hands and face. Anania also suffered a broken back. Anania was not wearing work appropriate gloves.

Although feeling bad for Anania, Mari says that it's Anania himself who had improperly fixed the scaffolding. Anania says that he was inexperienced and that that was the first job he did on his own at the building site.

Anania wants someone to be held liable for his injuries.

1. Discuss whether and why H&M Constructions or Mari can be held liable for Anania's injuries. (10 marks)

2. Discuss whether the Defendant might successfully raise a defence in this case (10 marks)

3. What possible arguments would Anania raise in response to the Defendant's argument that a defence exists? (10 marks)

QUESTION TWO (10 marks)

The Domestic Building Dispute Resolution Victoria (DBDRV) and the Victorian Civil and

Administrative Tribunal (VCAT) can both accict in the building site.

Anania wants someone to be held liable for his injuries.

1. Discuss whether and why H&M Constructions or Mari can be held liable for Anania's injuries. (10 marks)

2. Discuss whether the Defendant might successfully raise a defence in this case (10 marks)

3. What possible arguments would Anania raise in response to the Defendant's argument that a defence exists? (10 marks)

Solution

QUESTION 1

Q1.

In accordance with the Code of Ethics and Guidelines, it is expected engineers behave themselves in an honourable manner, continue to maintain proficiency, and promote sustainability (Code of Ethics and Guidelines on Professional Conduct, 2019). By using these well-established concepts, it is possible to conduct an analysis to determine whether or not H&M Constructions and Mari are potentially liable for the injuries that Anania received.

H&M Constructions for management assignment expert and Mari have a responsibility to maintain a duty of care to provide a safe working environment. Part of this responsibility is preventing any violations of this duty that may occur. This requires providing the required teaching, as well as proper supervision. The fact that
Anania claims to have no prior experience hints at the possibility of breaking an agreement. It's possible that Anania's lack of expertise led to the wrong erection of the scaffolding, but either way, it was a disaster (Code of Ethics and Guidelines on Professional Conduct, 2019). It is suggested that H&M Constructions and Mari carry out an exhaustive assessment of the individual's skills and provide relevant teaching in addition to active supervision for the responsibilities that have been delegated to him.

Because Anania did not protect her hands by putting on gloves designed for industrial settings, the legal doctrine of contributory negligence may be used in this scenario. Nevertheless, H&M Constructions and Mari's responsible for enforcing safety regulations and assuring compliance with safety requirements. If it can be shown that the emphasis or enforcement of glove use was inadequate, then the degree to which gloves contributed to the harm may be lessened (Code of Ethics and Guidelines on Professional Conduct, 2019). This is because it is possible to establish that the focus or enforcement of glove usage was insufficient.

It is probable, in light of the reasons above, that H&M Constructions and Mari may be held partly responsible for Anania's injury as a consequence of their potential failure to meet their requirement of providing appropriate instruction and supervision. This would be the case since it is possible that they did not perform their duties.

Q2.

It is possible that the defendants, H&M Constructions and Mari, may try to mount a defence based on the following contentions:

Anania's lack of expertise and failure to correctly fix the scaffolding were the primary factors that led to the disaster. It is conceivable for them to argue that they made reasonable steps to train and supervise Anania; yet, the insufficiency of his proficiency led to the collapse of the scaffolding (Code of Ethics and Guidelines on Professional Conduct, 2019). This is plausible for them to assert. Despite this, there is a possibility that this line of defence does not completely release them from the responsibility of providing adequate training and control.

The defence can argue that Anania deliberately opted to drop from the scaffolding rather than wait for assistance, which would be consistent with the assumption of risk legal principle. However, the efficiency of this argument may be decreased if it can be shown that Anania was obliged to do such action because of a pressing and imminent danger brought about by the deficient scaffolding (Code of Ethics and Guidelines on Professional Conduct, 2019). In other words, if it can be shown that Anania was forced to take such action due to a pressing and imminent danger, then this defence will be less effective.

Q3.

In response to the defence that the defendant offered, Anania has the opportunity to submit the following counterarguments possibly.

Anania may argue that his inadequate training and supervision were to blame for his lack of knowledge, which led to the unfortunate event that occurred. The person in question can provide verified evidence of inadequate guidance, mentoring, or the hurried assignment of tasks without suitable appraisal of their potential (Code of Ethics and Guidelines on Professional Conduct, 2019).

Anania may argue that H&M Constructions and Mari did not comply with the safety standards and requirements. The person is able to provide evidence suggesting that the scaffolding was not maintained properly and did not undergo the regular inspections that should have been performed, which led to the structure's collapse and caused the individual to be held accountable (Code of Ethics and Guidelines on Professional Conduct, 2019). According to the statement that was just made, H&M Constructions and Mari may have committed an act that would be considered a breach of obligation.

Despite the fact that Anania may have contributed to the circumstances that led to his injuries in some way, he may still be able to argue that H&M Constructions and Mari should be held liable for those injuries via the legal principle of vicarious responsibility. The person is in a position to provide proof that the event took place within the course of his professional responsibilities and that H&M Constructions and Mari failed to carry out their task of guaranteeing safety, making them accountable for the consequences that ensued as a result of their actions.

In order to enhance his case, Anania may provide proof of inadequate training, non-adherence to safety standards, and a focus on the responsibility of care, all of which can be used to refute the statements made by the defence.

QUESTION 2

When disagreements arise between homeowners and builders in Victoria, Australia, residents may turn to either the Domestic Building Dispute Resolution Victoria (DBDRV) or the Victorian Civil and Administrative Tribunal (VCAT). The dispute's nature and complexity will determine which institution should be contacted.
The DBDRV is the standard starting point for settling construction lawsuits. It's a neutral, no-cost service with the goal of bringing the two sides together to work out their differences. The DBDRV works best for conflicts when both parties are open to talking things out and coming to an agreement (Code of Ethics and Guidelines on Professional Conduct, 2019). The DBDRV may act as a mediator and assist the parties to a resolution if they are unable to do so themselves, such as in cases involving a disagreement over the quality of craftsmanship, flaws, or delays in building.

If the parties are unable to settle the disagreement via DBDRV or if the procedure is unsuccessful, the case may be brought before the VCAT. The rulings made by VCAT are binding and the tribunal has more powers than other similar bodies. issues involving breaches of contract, non-payment or disputes over payments, non-compliance with construction standards or licences, and issues requiring official hearings or legal remedies fall within its purview (Code of Ethics and Guidelines on Professional Conduct, 2019).

In the case of a serious breach of contract, such as the failure to complete the work or a significant deviation from the agreed specifications, VCAT may be the appropriate forum to seek a legal resolution and obtain a formal ruling or order if the parties are unable to reach an agreement through negotiation.

References

Code of Ethics and Guidelines on Professional Conduct (2019). Engineers Australia.