LAW 131 Legal Method Assignment

LAW 131 Assignment Question:

Frankie is a master stonemason who specialises in creating engineered stone benchtops for residential kitchens and bathrooms. She has been working in the stone masonry industry for the past thirty years. As part of her job with Beautiful Stone Benchtops (BSB), Frankie grinds and hand crafts large pieces of engineered stone to the specific requirements of each job.    

Recently Frankie has not been feeling well and has suffered from a persistent cough. Frankie organised to see her doctor, Dr Hurt, who has opined that she may be suffering from a lung condition. Medical tests have shown that Frankie has inflamed lung tissue and scarring on her right lung.  At this stage Dr Hurt is unsure if Frankie’s condition has been caused by the ingestion of silica dust particles penetrating her lungs as part of her employment, or by other factors. Frankie smoked cigarettes for 20 years, but for the past few years has switched to vaping.

Beautiful Stone Benchtops (BSB) are a small family owned business who undertake traditional stone cutting practices. BSB employ dry cutting practices, rather than wet cutting practices, in accordance with their traditional stone cutting technique. Recent studies have demonstrated that there is less likelihood of ingesting silica dust when engineered stone is ground using wet cutting equipment. Frankie questioned BSB’s cutting practices approximately three years ago, but was told by her supervisor not to listen to scare mongering from the media and their competitors. Furthermore, for approximately one year, Frankie has not been wearing a ventilation mask when working, as she finds it makes her too hot and bothered throughout the work day. She has also found that wearing the ventilation mask impedes her work productivity and that she can’t get through her assigned work quotas when following all the safety directions.  

BSB are arguing that Frankie is not an employee of theirs and instead works as an independent contractor. Frankie works for BSB three days a week (Monday to Wednesday) from 9am to 5pm. She wears BSB’s uniform whilst working and is under pressure to accept extra work from BSB when it is offered to her. In recent times, Frankie has been working for BSB five days per week due to staffing shortages. Frankie organises her own insurance but BSB contributes to her superannuation fund. BSB did not provide Frankie with an extensive employment contract when she started working with them.

Frankie is currently pursuing a Workers Compensation Claim for her lung condition, so it is unnecessary to discuss this option. Instead focus your analysis on Frankie bringing a potential common law negligence action against BSB. Some issues you may choose to focus on include the employment status of Frankie, causation/scope of liability issues and possible defences BSB could argue. Please do not discuss quantum of damages issues. Please restrict your analysis to Topics 1- 5 of the LAW131 course. Please do not discuss the Dust Diseases Tribunal Act 1989 (NSW) and other associated regulatory instruments.