ASSIGNMENT ONEMEDIA REPORT ANALYSIS

Chicago referencing style:Farcic, E. 2014. “Builder sues over house on wrong lot.” The West Australian, September 6-7.

[Word Count: 1878]

1. Identify the areas of law that are relevant to the chosen media report, and explain how they are relevant to the matters outlined in the report.

The article (Farcic 2014) examines the litigation of the Water Corporation, the defendant, by building contractor Norvik Industries (Norvik), the plaintiff.

Contract Law

The article makes reference to a number of cases concerning contract law. In one occurrence, the Water Corporation were commissioned to connect a specific block to the water network for Norvik. This contract would involve the exchange of money as consideration for the materials, time, labour and skills necessary to connect the Webb’s block to the water network (Graw, et al. 2015, 102). The article specifically references the court writ claiming the Water Corporation demonstrated inadequate “duty of care” (Farcic 2014) and caused a breach by failing to meet “an express term of the contract” (Farcic 2014).

While not relevant to Norvik vs Water Corporation, Norvik also have a contract with Adrian and Linda Webb (Webbs) to construct a house on their previously acquired block of land. It should be noted that Norvik is also breaching the terms of their contract as well, by failing to constructing a house on their block. This entitles the Webbs to seek litigation (Graw, et al. 2015, 261) in order for them to return to their pre-contractual state, under contract law.

Corporate Law

The Water Corporation, despite being completely owned by the Western Australian State Government, “is not an agent of the Crown and does not have the status, immunities and privileges of the Crown” (Western Australia’s Water Corporations Act 1995, s. 5). The Water Corporation therefore has all the rights

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and responsibilities of a regular corporate body, this includes liability for torts committed by its employees via vicarious liability (Graw, et al. 2015, 379). Corporate law will apply in this case to determine the individual responsibilities of the employees involved, as determined by the structure of the company and whether the employees acted in accordance with their duties (Graw, et al. 2015, 385).

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When considering the timeframe between the error and discovery, a few months at minimum, the case demonstrates an administrative failure across multiple parties. Knowledge of Corporate law will help substantiate the responsibilities of each party, how each party’s administrative procedures should have identified the problem earlier, in order to determine the proportional obligation and resulting liability of each party via tort law.

Property Law

Property law is relevant to this case for Norvik, to determine their liability for damages incurred by other parties as a result of their mistake. The owner of the property where the house was constructed has suffered a violation of their property rights (Western Australia’s Building Act 2011, s. 76); the Webbs have not received the house they commissioned within a reasonable timeframe (Graw, et al. 2015, 260-261), and the house was constructed without the appropriate approvals (Western Australia’s Building Act, s. 9). Such issues would allow for property laws to apply (Graw, et al. 2015, 250).

Tort Law

Tort law applies to cases of civil wrongdoing, where the action or inaction of one party with a duty of care results in loss, damage or harm of another, irrespective of malicious intent (Graw, et al. 2015, 438). Tort law is based in common law and as a commercial body the Water Corporation is subject to these laws. By extension, any employees of the Water Corporation found to have acted negligently, not using “due care and skill” (Graw, et al. 2015, 260) by abandoning proper procedure could also be held personally accountable with tort law.

2. The Law serves a number of different functions. It: Ensures reasonable predictability in daily life;

The article demonstrates how simple mistakes can have significant consequences for third parties in regards to their property. Property laws supports predictability in daily life by regulating “work affecting other land” (Western Australia’s Building Act, part 6), with penalties for non-compliance, which will be enforced against Norvik for “encroaching without consent” (Western Australia’s Building Act, s. 76).

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Encourages and discourages certain conduct

Corporate law provides the outline for the rights and duties of businesses. The vicarious liability the Water Corporation has for its employees’ mistake regarding the Webb’s lot is an excellent example of corporate law simultaneously encouraging responsible corporate behaviour through “standards of care” (Graw, et al. 2015, 467) by limiting liability while discouraging non-compliance with penalties and extended liability.

Grants rights and powers to individuals and groups of people

Property may not display any physical indicators of ownership, however the concept of property law provides parties with the right and power to claim and enforce their exclusive use of that property. Property law also applies conditions to the utilisation of the property in order to minimise potential negative impact to other parties. The Webb’s enforcement of their rights by constructing a house on their land is an excellent example of property law in action. In addition, Norvik constructing a house on the wrong lot violates the rights of that landowner, giving them the power to litigate for compensation for the damages or loss caused by Norvik’s mistake.

Imposes obligations on individuals/organisations to meet their legal responsibility

The concept of imposed obligations to meet a legal responsibility is best realised through tort law. Tort law has evolved to recognise that negligent behaviour has a cost associated with it. Through the enforcement of tort law, parties are required to meet their legal responsibilities to other parties, to act with due care to minimise the risk of hurt or loss. The Water Corporation, by negligently connecting the wrong property to the water network, caused Norvik damages of at least “$519,000” (Farcic 2014).

Allows for the enforcement of recognised rights and duties

The case of Norvik and the Water Corporation highlights how the responsibilities of each parties can be enforced through contract law. Norvik’s contract with the Water Corporation earned Norvik the right to have the correct lot connected to the water network. In return Norvik were responsible for providing adequate consideration for the time, labour, skills and materials required by the Water Corporation in order to provide that service (Graw, et al.2015, 102).

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Provides remedies when an injustice has been done

Through tort law, events that cause harm or loss to another party as a result of negligent behaviour can be prosecuted, allowing for the victim to receive remedies. Norvik suffered losses timewise and financially due to the Water Corporation’s mistake, tort law provides Norvik a legal avenue for mitigate at least part of their losses, while holding the Water Corporation accountable for its mistake. In addition, the precedent set by a successful plaintiff increases the risk of successful future litigation for similar cases, encouraging the Water Corporation to demonstrate better duty of care in future.

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3. By reference to the legal issues contained in the chosen media report, explain why it was important for the relevant party/parties to know the law in the circumstances? How did, or could, the party/parties have applied the law to their advantage?

A clear understanding of the legal rights and duties of each party is essential for reducing the risk and potential harm or loss to all parties involved, as well as, protecting each party from lawsuits against them.

As reported by the article, Norvik is attempting to reverse the losses it incurred by constructing an unauthorised building. Norvik put ‘blind faith’ in the Water Corporation to complete their job correctly. This ‘blind faith’ resulted in Norvik suffering financial damage “the estimated cost to build the new house was $519,000” (Farcic 2014).

Through applying the concepts of “express term of the contract” (Farcic 2014) and “duty of care” (Farcic 2014) Norvik hope to gain advantage in their case. “Express terms” refer to the parties’ intentions to include specific conditions as part of the contract, although not explicitly mentioned (Graw, et al. 2015, 102) and “duty of care” refers the reduction of risk against ‘reasonably foreseeable’ losses or damages between sufficiently close parties (Graw, et al. 2015, 458). By extending the Water Corporation’s liability, Norvik could seek mitigation (Graw, et al. 2015, 197) using the concept of causation (Graw, et al. 2015, 192).

The Water Corporation will likewise use its knowledge of the law to reduce their implied responsibilities to Norvik, in order to reduce their liability under the contract. As the contract between the Water Corporation and Norvik was only to connect the Webb’s lot to the water network, the Water corporation could argue that their sole obligation was to connect the Webb’s lot, which they could connect as per their agreement concluding their contract.

The Water Corporation could deflect responsibility for noticing the mistake to other parties, limiting their liability to Norvik. This could potentially be achieved by scrutinizing the procedures of; Norvik’s auditing division, local government agencies or any other entity that likely completed an appraisal of the property. By transferring responsibility for identifying the mistake to these other parties, the Water Corporation will limit the duration of their implied liability to the first inspection (Graw, et al. 2015, 197) following the lot’s connection to the water main. In addition, if the Water Corporation could convince the judge of limited

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liability, they could potentially counter sue Norvik for unnecessary financial damage due to the previous ligation process.

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4. How do the media influence public perceptions about the law and its administration? How might public pressure impact legislators and judges in establishing the law?

The media’s ability to change hearts and minds through their presentation of information is both powerful and dangerous. The inherent cognitive traps confronting journalists while processing information were recognised by Stocking and Gross (1989, chap. 1), and remain critically relevant in modern society; not only to journalist but extending to the general public via access to the internet.

Articles in popular media can be the public’s initial exposure to a story or event. The knowledge gained from these articles can become the standard that all future information is validated by, known as “confirmation bias” (Stocking and Gross 1989, 27). When articles are produced in order to generate a particular response, this gives the media the power to position the public on issues before the public can access to all the necessary information in order to make informed opinions.

Once theories about the issue are formed, theory consistency biases (Stocking and Gross 1989, 35-36) deter people from altering their position on issues. Opinions presented by the media, who may not have expertise in those fields, have the power to drive emotive responses to issues. Large scale emotive responses put pressure on legislators to act in response to these issues.

Law creation is managed by the government, considering popular vote is how politicians are elected, the influence of public pressure could have significant impact on legislation.

Judges can interpret law and extend its application via precedent. As the law is objective judges are able to minimise their emotive response to issues, however they are still human so public pressure will occasionally weigh into the interpretation of the law. It would likely feature in the “obiter dicta” (Graw, et al. 2015, 35) of the judgement.

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References

Farcic, Elle. 2014. "Builder sues over house on wrong lot." The West Australian, september 6-7.

Graw, Stephen, David Parker, Keturah Whitford, Elfriede Sangkuhi, and Christina Do. 2015. Understanding Business Law. 2nd Ed custom publication for Curtin University. Chatswood: LexisNexis.

Stocking, S. and Paget Gross. 1989. How Do Journalists Think? A Proposal for theStudy of Cognitive Bias in Newsmaking. Indiana: ERIC Clearinghouse on Reading and Communication Skills.

Legislation

Building Act 2011 (WA).http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:24906P/$FILE/Building%20Act%202011%20-%20[01-a0-05].pdf?OpenElement

Water Corporations Act 1995 (WA).http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:28269P/$FILE/Water%20Corporations%20Act%201995%20-%20[04-b0-01].pdf?OpenElement

Water Services Act 2012 (WA).http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:25642P/$FILE/Water%20Services%20Act%202012%20-%20[01-a0-03].pdf?OpenElement

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