In this given case study it has been provided that Squelch Ltd., an Australian Public company which manufacturers beverages, encountered an unfortunate incident. One of the technicians of the aforementioned company Leonard had been asked by Jenifer, the director of Squelch Ltd. to physically move within the broken down machinery to resolve the issue. Such technician had resolved the problem, but before he came out, Jenifer instructed to start the machine due to which Lenard sustained serious injuries. The issue in question is whether Squelch should face civil and criminal due to the accident in which Leonard was injured.
It can be stated that for the purpose of assessing the issue in context of legal provisions, it is important to discuss the legal provisions of Negligence and Work Health and Safety 2011. An organization will face civil liability in case it is established that there was Negligence on the part of the organization due to which the concerned employee sustained severe injuries. The law of Tort in Australia has been derived from English common law. The Civil Liability Act 2002 also governs the law related to Negligence and Tort in Australia. In order to prove that the defendant had been negligent in his actions, the plaintiff is required to establish that all the essential elements of Negligence had been present. The essential elements of Negligence can be defined as:
- Duty of care
- Breach of duty of care
As held in the case Caparo Industries plc v Dickman  2 AC 605 a three part test must be applied to assess:
- Whether the damage or injury sustained by the plaintiff was reasonably foreseeable to the defendant
- Whether a proximity had eisted between the parties
- Whether it is reasonable, just or fair to impose liability upon the defendant.
In order to establish negligence, breach of duty of care is the second most important element. The objective test as illustrated in the case Vaughan v Menlove (1837) 3 Bing. N.C. 467 is applied to assess whether defendant had met the standard of a reasonable person.
The third important element of Negligence is Causation. In order to claim damages from the defendant, the plaintiff must establish that the damage sustained by him was caused due to the negligent actins of the defendant. The causation of damage is generally assessed by the application of a ‘but for test’ as established in the case Barnett v Chelsea & Kensington Hospital  1 QB 428.
Thus by applying the legal principles to the facts of the case it can be stated that the Swelch Ltd had been negligent. The company had a duty of care to Leonard. Such duty of care can be assessed by the application of the objective test as mentioned in the Caparo Industries plc v Dickman case. Firstly it can be said that it was reasonably foreseeable to Jenifer that Leonard would sustain injuries if she turned on the machine before Leonard could get out.
There was also proximity between Jenifer and Leonard. Leonard was a technician employed by the company to fix the faulty machine. Therefore it can be assessed by a reasonable person that Squelch Ltd. would be responsible for any injury sustained by Leonard.
Thirdly it can be stated that it would be reasonable and only fair to impose the liability on Squelch of any harm likely to be caused to Leonard. Thus in this case a duty of care of Squelch Ltd towards Leonard ca n be said to be existing.
Squelch Ltd. breached such duty of care. This can be substantiated by the application of the test as provided in the case Vaughan v Menlove. Any reasonable person in this situation would have waited till Leonard got out of the broken machiner which he was repairing.
The damage sustained by Leonard, can be said to be a direct cause of the breach of duty of care by Squelch Ltd. This can be substated by the ‘But For’ test. It can be stated that Leonard would not have sustained the injuries but for the omission of the negligent action of Squelch Ltd.
Thus in this case negligence of the part of Squelch has been established and Leonard is entitled to claim damages for the injury sustained by him.
Further it can be stated that the Work health and Safety act 2011 provides that employers can face criminal liability if they do not comply with the provisions of the aforementioned act. They will face a greater liability if such non compliance results in the death and injury of the concerned employee. Thus in this case Squelch Ltd will face criminal liability.
Work Health and Safety Act 2011
Barnett v Chelsea & Kensington Hospital  1 QB 428
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Caparo Industries plc v Dickman  2 AC 605
The Civil Liability Act 2002