Governance In The Modern Global Corporate Environment Finance Essay - Free Essay Example

Sample details Pages: 9 Words: 2564 Downloads: 2 Date added: 2017/06/26 Category Finance Essay Type Narrative essay Did you like this example? Over a past decade, the corporate governance has been considerably spotlighted by business people all over the globe. One of the reasons which sparked the anxiety on corporate governance is the collapse of one of the largest companies in the USA, Enron. The massive company was filed for bankruptcy in December 2001. Don’t waste time! Our writers will create an original "Governance In The Modern Global Corporate Environment Finance Essay" essay for you Create order The failure of corporate governance was claimed to be the cause of Enron ¿Ãƒâ€šÃ‚ ½s collapse (The Journal of Corporate Citizenship, 2002). Most of all aspects of Enron ¿Ãƒâ€šÃ‚ ½s corporate governance were identified as a poor level. From the top, number of people who were in the board of directors, were indicated to be willing to perform the deception. The failure of internal auditors, who did not execute its function effectively, caused a gap for the financial director and chief executive to make fraudulent accounts for the firm (Solomon, 2004). This corporate scandal has stimulated both local and across borders firms to earnestly examined their own corporate governance mechanism whether they had the similar issue like Enron, in order to fix before it was too late. Moreover, the policies to prevent further failures were developed by the number of regulators all over the world after the Enron saga (Veneeva, 2006). The downfall of Enron demonstrates that even the compa ny with a good financial result still might be bankrupt if the solid and effective corporate governance mechanism is absented. This essay is going to discuss about the corporate governance in globalization i.e. the definition of corporate governance, the important of effective corporate governance in globalization, the demonstration of corporate governance in globalization, and the explanation of why corporate governance structure is nearly similarly across countries. There are a number of definitions of corporate governance. The definitions can be classified into 2 main views. On one hand, the narrow view, defines the corporate governance as structure and relationships between a firm and its shareholders. Solomon argues that the corporate governance is  ¿Ãƒâ€šÃ‚ ½the process of supervision and control intended to ensure that the company ¿Ãƒâ€šÃ‚ ½s management acts in accordance with the interests of shareholders ¿Ãƒâ€šÃ‚ ½ (Solomon, 2004, P.13). On the other hand, broad view, the stakeholders are taken into account of corporate governance. In more inclusive way, broad view explains that the corporate governance is the system of structure and relationship between firm, its shareholder and also wide range of its stakeholders which including employees, suppliers, customers, creditors, communities, wider society, even the natural environment and so forth by encompassing laws, regulations and voluntary private sector practices tha t enable corporation to create the profit, attract capital and meet both legal standards and societal expectations.  ¿Ãƒâ€šÃ‚ ½Corporate governance is concerned with holding the balance between economic and social goals and between individual and communal goals. The aim is to align as nearly as possible the interests of individuals, of corporations and of society ¿Ãƒâ€šÃ‚ ½ (Waring, 2004, P. xii). Nevertheless, both narrow and broad views have the identical framework of corporate governance which is about how the company is managed, monitored and controlled in extent of balancing the interests and goals of all shareholders and stakeholders who can be affected by the company ¿Ãƒâ€šÃ‚ ½s activities. Corporate governance requires a transparency and disclosure from board of directors, managers and accountancy to report on the performance of the firm. Solomon (2004) also suggested that corporate governance requires a system of checks and balances both internally and externally in order to guarantee that the firm dispenses its accountability to all parties of corporate relations and also to ensure that the business transactions are performed in a social responsible way. The good and effective corporate governance system is substantially significant in present business globalization. Various modes of benefit are returned to the firms where effective corporate governance structure is adopted. Mohamad (2004) argues that the quality of corporate governance is crucial as it directly influences on efficiency of firm ¿Ãƒâ€šÃ‚ ½s assets utilization, capability of the firm to attract low-cost capital, firm ¿Ãƒâ€šÃ‚ ½s ability to satisfy the expectation of society and also firm ¿Ãƒâ€šÃ‚ ½s overall performance. The optimal utilization of the firm ¿Ãƒâ€šÃ‚ ½s assets and resources is able to be guaranteed by effective corporate governance. Under an effective corporate governance structure, debt and equity capital are conducted to be invested in the most efficient way for the production of both most demanded goods and services along with those with the highest rate of return (Mohamad, 2004). Moreover, it is more likely that incompetent manager, or who fails to utilize the resources and assets efficiently are replaced (Gregory, 1999). As the assets and resources of the firm are ensured to be utilized efficiently, consequently, the effective corporate governance supports the firm to attracting the low-cost capital by enhancing both internal and external borders investor confidence. McKinsey Report (2003) found that investors would willingly to pay a premium from 13 percent to 30 percent varies by region for the companies they believed had greater corporate governance. To be successful in long-term of business, the firm has to obey with the set of laws, regulations and also the societal expectations where it is operated. Numerous companies intensely comply with the corporate social responsibility practices and contribute to society (Stanwick, 2008). Although, some companies demonstrate the failure of corporate responsibility and corporate governance by attempt to make a profit from child labor or any other act that not take environment and society into account. This also exemplifies the failure of government to initiate the framework to conduct the corporate responsible for the issues that significantly impacts to society in wide range. The combination of efficient use of assets and resources, enhanced approach to low-cost capital, extended satisfaction of societal expectations and together with the overseeing on management people which are delivered by the effective corporate governance, leads to the enhancement on overall performance of the firm. The link between company overall performance and effective corporate governance makes significant intuitive sense (Ararat, 2007). Furthermore, by implementing effective corporate governance practice at a national level, foreign and local investors are likely to pay a premium for investment in that nation (Stanwick, 2008). As such, effective corporate governance leads to the improvement in financial stability markets and fosters the country to attract further financial investments. This is apparently strong incentives for both corporations and governments all over the globe to considerably make an effort for better governance. The governance practices vary across countries in accordance with their legal framework, financial system and the corporate ownership structure (Davies, 2008). Corporate governance can be broadly categorized into two main models which are outsider model and insider model. The outsider system is identified by distributed of firm ¿Ãƒâ€šÃ‚ ½s equity among a great quantity of outside investors. Bhasa (2004) suggests that USA and UK obey the outsider system. This system also involves with the separation of ownership from control. Main benefits of this system are explicit transparency, powerful investor protection. However, the desire of management and shareholder are potentially not aligned. In contrast, the insider system is existed where ownership is intensified with shares being owned by families, banks or state. This system provides the alignment of interests among management and shareholder, and also protects the firm from hostile takeovers. Nevertheless, drawbacks of this sys tem are weakness in investor protection, lack of transparency, abuse of power and funds. The insider system is existed in most countries of Continental Europe and East Asia (Hackethal, 2005). However, in recent years, important changes have been certainly appearing in corporate governance system. Globalization and rapid improvement on information technology has been resulting in enhancement of interconnection between people across countries which also present the opportunity to the firms for seeking the profit internationally. Multinational company can possibly gain a benefit across borders whether by international trade, foreign direct investment and etc. To run the multinational company, most of the firms have to access the capital markets of foreign country where they invested. By doing so, the firms are required to comply with the laws, regulatory and practices of that market. This demonstrates the convergence of corporate governance. Yoshikawa (2009) argues that the convergence of corporate governance trend has been growing continually in recent years. Three factors has been indicated to be the drivers of convergence of corporate governance which are the internationa l integration of financial markets, product market integration, and the spread of codes of good governance and harmonization of accounting rules. The international integration of financial markets is a main contributor of globalization process for driving changes in corporate governance practice. In the last two decades, international financial markets have become more integrated with remarkable implications for corporate governance (Davis, 2003). There are many forms of financial market integration e.g. listing by firms from one country in the stock exchanges of foreign countries, rising of foreign portfolio investment, cross-border mergers and acquisition, and etc. These forms of financial market integration transform the fundamental in the ownership structure of corporations (Yoshikawa, 2009). In recent years, the number of firms which list their share in multiple exchanges across borders has been growing rapidly. Important regulatory and compliance costs have been incurred to the foreign issuers who entering these exchanges (Bell, 2008). Furthermore, firms are engaging in a bonding mechanism and simultaneously transmit to the investors that they are willing to obey with higher standards of disclosure than required in their home country when they decide to list in a foreign market with higher disclosure practices. As a result, such bonding increases the firm ¿Ãƒâ€šÃ‚ ½s share value. Consequently, outcome of the foreign listing is the convergence as a by-product (Yoshikawa, 2009). Furthermore, substantial growth of foreign portfolio investment all over the world has been seen for a period of time. The regular demand of investors is to diversify their portfolio in order to reduce the risk and obtain more liquidity hence foreign investors essentially own small stakes and often trade their shares. Many companies take a lot of effort to attract foreign institutional investors because the resulting demand for the stock can lift up the prices and suddenly increase the value of the companies (Aguilera, 2003). On top of the attracting investors, retaining the existed and potential investors is extremely necessary. Parrino (2003) argues that selloffs by investors can impact the stock prices negatively and upraise the potential of hostile takeover. Therefore, in order to attract and retain the foreign investors, firms must comply with investor ¿Ãƒâ€šÃ‚ ½s expectation of good governance such as disclosure and protection of the rights of minority shareholders. Under the viewpoint of product market integration, corporate governance is seen as a new innovation or technology (Khanna, 2004). In present age of global business, high competition in both domestic and international, adopting of the most innovative practice is essential otherwise the firms possibly encounter the competitive failure. Countries and companies that are applying the under optimal governance practices will be less efficient and will suddenly fail or will have to adopt more efficient elements of governance practice (Yoshikawa, 2009). The spread of codes of good governance and harmonization of accounting rules also drives the convergence of governance system. Number of countries has used the Cadbury Committee report in the UK as a seminal development for similar evolution in their nations (Aguilera, 2004). Once the codes are published, they become an important paradigm for convergence in both local and international, regardless of who is the issuer. Yoshikawa (2009, P. 392) also states that  ¿Ãƒâ€šÃ‚ ½integration in the global economy functions as a transmission belt for the need to innovate and facilitate the transfer of practices across countries ¿Ãƒâ€šÃ‚ ½. When firms decide to list in a foreign exchange, they normally confront with the problems that their accounts are required to be restated based on the standards of that country. Likewise, international investors face the problem of understanding the accounting system in another country where they want to make portfolio investment. The harmonization of accounting standards is addressing these problems (Yoshikawa, 2009). It facilitates the firms in running their business internationally and also enhances the attraction of the investors to make investments.  ¿Ãƒâ€šÃ‚ ½The harmonization of accounting standards can greatly facilitate the process of convergence, mainly through mandating uniform disclosure requirement ¿Ãƒâ€šÃ‚ ½ (Yoshikawa, 2009, P. 392). Many countries are attempting to improve their governance practices to the somewhat similar area as there are a number of benefits. By improving the governance practices effectively which including efficient use of resources, ensure the corporate is in compliance with laws and societal expectation, transparency and disclosure and etc.; the confidence of investors are enhanced as such the corporate can simply access to low-cost capital. Also, when business transaction is occurred between two or more countries, it is favorable to the business where all participants adopting the similar effective governance practices. The similar standards of governance give a transparency and disclosure in a better level by uniform disclosure necessity (Yoshikawa, 2009). Recently, China has made a substantial progress in improving its governance practice based on Anglo-Saxon model (Dujuan, 2009). In 2006, China has changed from the Old Company Law to the New Company Law in order to encourage the investment. The New Company Law led to improve the shareholder rights, especially minority shareholders. In addition, it made a considerable progress in seven areas of corporate governance such as rights of shareholders and rules for shareholders ¿Ãƒâ€šÃ‚ ½ meetings, duties and responsibilities of directors and independence of board of directors, performance assessment and incentive and disciplinary systems, information disclosure and transparency and the role of auditor. The laws, for instance, give the right equally among shareholders and, shareholders shall have the right to protect their interests and rights through other legal in accordance with laws and administrative (Dujuan, 2009). In addition, it also provides how minority shareholder can use their rights in the court. Moreover, it forces the directors and managers to faithfully execute their duties, protect the firm ¿Ãƒâ€šÃ‚ ½s interests, answer to the shareholders and must not use the firm ¿Ãƒâ€šÃ‚ ½s assets or resources or their position to seek personal gain. The board of directors takes the responsibility of appointing competent and removing incompetent management. Under the company law, competition with the company is forbidden (Dujuan, 2009). The improvement in New Company Law conducts the directors, managers to act legally and ethically and also delivers to protection to even the minority shareholders in order to encourage the investment and to gain other business advantages. The New Company Law exhibits the progress in convergence of China ¿Ãƒâ€šÃ‚ ½s corporate governance practice. It has been claimed to be one of the contributors of recent substantial economic growth of China (Dujuan, 2009). This essay exhibits the role of corporate governance in business globalization. The trend of convergence in governance practice is appeared even there ¿Ãƒâ€šÃ‚ ½s still a bit of impediments to convergence completely regarding the differences in legal framework, financial standards and the social norms. But, still, the basic characteristics of effective corporate governance is similarly comprised of protection of shareholder rights, independence of directors, the presence of audit, transparency and disclosure, and remuneration. The firms and even nations essentially require pursuing the effective governance practice which provides a number of business advantages in return. The corporate, where effective corporate governance is adopted, mostly surpasses other companies and has greater capabilities in attracting the investors to support in financial term of the company for further economic and business growth. The effective corporate governance is necessary in terms of controllin g and monitoring company management. It cannot prevent the illegal or unethical activity by management, but it can at least detect such activity before it is too late to be fixed. On the contrary, poor corporate governance mostly leads to the disadvantages of the firm ¿Ãƒâ€šÃ‚ ½s potential and, in worst case; the fraudulent activities might be appeared. Appendix

Human Law Vs. Divine Law - 1487 Words

Human Law vs. Divine Law Morality is principles that determines the distinction between right and wrong action, or good and bad behavior. There is also a link that being moral should be determined by either human law or divine law. The play â€Å"Antigone†, by Sophocles, shows the complexity of this certain concept of morality. Antigone must determine whether she should defy King Creon’s law in order to bury her brother, Polynices, or reject her own religious beliefs in order to maintain in the King’s good graces. At the same time, King Creon also has to determine what is right and wrong; he must decide if he should imprison and give the death sentence to Antigone for defying the law, or let her go free because of divine law. The issues shown in â€Å"Antigone† further exemplify the complexity of which law is â€Å"right† and if Antigone’s and Creon’s actions were justifiable. Should there solely be one person to create law? Or should there be a consideration for people that prefer divine law? According to Katrin Beushausen, â€Å"Antigone† was first staged around 442 BCE. It was a time of peace for Athens. Unfortunately, conflict with Sparta would again break out ten years later in the Peloponnesian War. â€Å"It is important to realize that, at this point, democracy was not only an ambitious political system under which the life of the Athenian citizens was organized according to the idea of equality, but also represented an ideological instrument of power in Athens s pursuit of hegemonyShow MoreRelatedDivine Law Vs. Human Law1510 Words   |  7 Pages English A, Literature ― HL Written Assignment Divine Law vs. Human Law West Islip High School Là ©na Seltzer 003996-0069 May 2017 1472 Words Religion and State have historically battled over value of importance. For centuries, laws have been set forth to further the separation between the two. 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Essay on Vulgar Wedding Roast by a Childhood Friend

Vulgar Wedding Speech by a Childhood Friend Good evening ladies and gentlemen. This is my first experience in playing such a large role in a wedding. And I really appreciate Lee and Susan giving me the opportunity to make a fool of myself in front their friends and family, rather than just my own all the time. Yes, I am feeling pretty nervous at the moment, but not as nervous as Lee was this morning. He said that he had a few butterflies in his stomach. Well, he should be feeling better now, as I found this in the toilet just after hed left it. [hold up a brick] But unlike me he didn’t have anything to be nervous about. Everything has gone to plan and I can’t imagine a happier way to start married life than in this wonderful†¦show more content†¦Unfortunately, I have played a part in most of these incriminating events and I really dont want to tarnish my impeccable reputation. So instead, Ill keep things very short by talking about Lees one and only weakness – an inability to wipe himself (wipe his own arse)! According to his brother Graham, he relied on his mom (mum) to perform this service for him. Lee would scream at the top of his voice â€Å"I’VE FINISHED†, which was his mother’s (mum’s) cue to come running to his aid. This went on for many years, but I’m not going reveal how old he was when it finally stopped as it’s just too humiliating. Suffice to say, 21 turned out to be his mother’s lucky number! Without wishing to go on about Lee’s ass (arse), it’s only fair to also mention the time his father came to his rescue. He was on a family holiday in Spain when Lee developed a massive, double headed boil between his cheeks. This was causing him considerable distress and his father could bear the suffering and screaming no more. So armed with a pair of scissors he set about removing the offending thing. But he failed to get a good grip on Lee’s tongue and squeezed the boil out instead. Ladies and Gentlemen, its been an honor albeit the most terrifying experience of my life to be the best man here today and I’d like to offer the bride and groom the traditional Best Man’s wish of good luck, good health and happiness. I must also wish you an enjoyable honeymoon. Watch out for the Hotel pool thoughShow MoreRelatedAfro-Asian Literature10586 Words   |  43 Pagescould not answer myself. Even now, this remains fresh in my memory. It often causes me distress, and makes me try to think about myself. The military and political affairs of those years I have forgotten as completely as the classics I read in my childhood. Yet this incident keeps coming back to me, often more vivid than in actual life, teaching me shame, urging me to reform, and giving me fresh courage and hope.    QUESTIONS: a) Lu Xun  (simplified Chinese:  Ã© ² Ã¨ ¿â€¦;  traditional Chinese:  Ã© ­ ¯Ã¨ ¿â€¦;  pinyin:  LÇ”Read MoreThe Ballad of the Sad Cafe46714 Words   |  187 Pageswas only twenty-three, Carson McCullers first novel, The Heart Is a Lonely Hunter, became a literary sensation. Since that time, her reputation has grown with every successive work. Such novels as Reflections In a Golden Eye, The Member of the Wedding and Clock Without Hands have won her comparison with such diverse masters as Melville, Flaubert and Faulkner -- which is to say: no critic has succeeded in easily capsulizing the full dimensions of her talent. Perhaps none of her works more brilliantly

Child Sexual Abuse - 1260 Words

Child sexual abuse is a social crisis of significant magnitude. This type of abuse has been found to be correlated with the advancement of an extensive range of mental health and social problems in children and adults. Child sexual abuse is the term used when an adult uses a child or adolescent for his own sexual gratification or pleasure. Furthermore, a frequent expression of childhood sexual abuse is control over the abused child. This type of abuse knows no particular demographic and occurs across all social, cultural, economic, and religious lines (The national clearinghouse on family violence. 1993). Moreover, this type of abuse does not always involve penetration, but also includes inappropriate touching or witnessing a sexual acts. Adult survivors of childhood sexual abuse have an array of short and long term effects originating from the exploitation. Furthermore, survivors suffer from very low self-esteem and frequently take responsibility for the abuse. 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Ways In Which European Artists Represented the Orient

Question: Discuss about theWays In Which European Artists Represented theOrient. Answer: Introduction The factor of orientalism has always been a subject of investigation and introspection in the field of European art forms. Orientalism is a result of the differences of cultures and practices of the East and the West. Orientalism is in fact a kind of mindset which gives rise to the manner in which the people perceive the people different than themselves in a light of mystery and exoticism. This has often been notices by oriental theorists like Edward Said and Frederick Bohrer. According to all these theories, orientalism was merely a means of aesthetic pleasure for the west. While the west eroticized the east, the effect was seen in their art forms, mainly their paintings. The allure of the orient captured the imagination of the artists that gave shape to their various forms of art. Representation of the Orient in Paintings Description de lgypte(180922) The Description de lEgypte was a twenty four volume collection of artworks that captured the topography, architecture, monuments, natural life, and population of Egypt. This work was one of the most influential works when it comes to shaping the idea of the west regarding the orient. The work, released by the French Government, was one of the first works that actually encapsulated the idea of the cultures and habits of that particular location [1]. While the earlier works had an idea to the location, this one had a profound influence on the French society as a whole. The work was a complete documentation of the religion in Egypt in a manner that no other work had ever done before. The influence of this work becomes very clear when we take a look at the architecture in France during this period. The work had influenced France to such an extent aesthetically, that the French architecture of the period seems to be direct replicas of the Egyptian styles. The influence was also seen in th e decorative arts of the period. The Prevalence of the Egyptian motifs in the Empire style is in fact a proof of the extent to which, Egypt had influenced French styles. Napoleon in the Plague House at Jaffa(1804) Napoleon in the Plague House at Jaffa was a work that indirectly supported European supremacy over the Orient that was considered to be uncivilized and barbaric by the Europeans[2]. This particular work was one of the first oriental paintings and depicted the East as a place of backwardness, lawlessness and barbarism that was enlightened by the French rule. This work was however, in no way related to any kind of fact and served as a means for the European propaganda. The painter of this work was Antoine Jean Gros(1771-1835). He was a pupil ofJacques Louis David and a history painter in Napoleons employ. However, the fact that is most important to be noted here is that he had never himself travelled to the Near East himself but he painted a sordid image of the East. In his painting, the propagandist ideas are extremely clear. The work depicts Napoleons visit to the plague-afflicted prisoners during the siege of Jaffa[3]. The work also propagated the Christian idea of the divine touch and the divinity of kings. It can be seen that Napoleon touches an inmate and he is reacting in a certain manner. This is a scene that is eerily similar to one of Jesus Christ. Massacre at Chios (1824) Massacre at Chios is a work by Eugne Delacroix (17981863). He was a proponent of the Romantic Movement and the painting is unusually violent for one that was created during a period of civil unrest. The theme of the painting is based on the war between Chios and the Ottoman Empire[4]. The defeat of the island of Chios is what is captured in the work. The painting shows the crushed victims and the victorious military of the Ottoman Empire. Although the painting does not have any heroic figure ion itself that would counterbalance the entire theme, it is important to note that Delacroix was a proponent of the Romantic Movement during the French revolution. It is possible that there was a sense of superiority and that played its part in the painting. Although there is no visible hero in the painting, it is possible that the victorious military was perceived as heroic in the eyes of the French. This is quite possible owing to the idea of the orient in the minds of the Europeans[5]. The pa inting shows thirteen civilians rounded up and chained for enslavement by the victors. There is an indication of the superiority of the victors in this painting and this could very well have been an idea of European superiority. Scene in the Jewish Quarter of Constantine Scene in the Jewish Quarter of Constantine was a work by Chassriau. The work is noted for its change in theme. Although it is oriental in its nature, it does not go into the domain of battle and other kind of proofs of superiority. The painting is noted for its depiction of quiet domestic and day to day life. The theme of maternity is also quite visible in the painting[6]. The painting was the documentation of a scene that Chassriau witnessed on a trip to Algeria. The scene touched him aesthetically to such an extent that he captured the scene in his notebook. However, there is an idea of romanticizing the East in this painting. The painting is done in such a manner that it captures the domesticity in a way that is not present in the European way of life[7]. This could be seen in his remark that he felt that the Arabs and the Jews were living in a manner that was like it was at the beginning of time. Also, the Jewish women were considered to be objects of desire by the Europeans and as a result, the effects could be seen in the painting. The Finding of Christ in the Temple The finding of the Christ in the Temple was a work by William Holman Hunt. The main feature of this painting is that it uses an oriental setting for a Christian theme. The paining was done after Hunt had travelled to the Middle East and used local people as models for his work. What is important here is the portrayal of the supremacy of Christianity over Judaism[8]. The painting portrays Jesus in a temple and Mary and Joseph coming after they had been looking for him. The scene is one where Jesus is a child and he is preaching to a group of rabbis in a Jewish temple. However, the rabbis are dismissive of his opinion. This is one of the main themes that emphasize the superiority of Christianity over the other religions. This painting is thus a symbol of European superiority[9]. The emphasis on the idea of the west civilizing the barbaric east is thus seen explicitly in this painting. It is quite clear that Hunt considered Christianity to be superior to the other religions. The most im portant part of this painting is that the attention to detail is very evident in this work. The oriental designs and oriental models of people are very carefully drawn in the painting. References Bednarski, Andrew. 2005.Holding Egypt. London: Golden House. English Romantic Paintings, 1800-1900. 1965. London: Maas Gallery. Kunz, Armin, Iris Metje, F. Carlo Schmid, and Catherine Bindman. 2008.The Romantic Era. Du?sseldorf: C.G. Boerner. Orientalism. 2012. Parkstone Pr. Peltre, Christine. 2004.Orientalism. Paris: Terrail. Pinder-Wilson, Ralph H. 1969.Paintings From Islamic Lands. Columbia: University of South Carolina Press. Said, Edward W.Orientalism. Thomson, Richard, E. W Brayley, and Thomas Baring. 1838.A Bibliographical Account And Collation Of La Description De L'e?gypte. London: [Printed by C. Skipper and East]. Yoshihara, Mari. 2003.Embracing The East. Oxford: Oxford University Press.

Road and Traffic Authority Vs Dederer Planfiff Side - Solution

Question: Discuss about theRoad and Traffic Authority Vs Dederer for Planfiff Side. Answer: Introduction: In August 2007, the High court of Australia gave the hearing in favour of the RTA stating that a duty of care imposes a responsibility to exercise care and not the duty of RTA to prevent any dangerous conduct by the people. This article will throw light on the different argument posed by the defendant as well as the RTA and the Council. It will focus on how the various reasoning posed by the High court was insufficient in rendering justice to Philip Dederer, the injured party in the case. The Case In that fateful day of December in the year 1998, Mr. Philip Dederer aged 14 jumped off Forester Tuncurry Bridge into Wallamba River that led to a serious spinal injury resulting in partial paralysis. He dived off into the bridge and hit his head on the sandbar which caused the injury. This place was a popular tourist attraction attracting people to dive into the estuary below. Jumping off the bridge into the water had been a regular phenomenon and numerous young people did so with no injuries being reported. Mr Philip was a regular visitor of the place since his childhood to spend holidays there. He had been a close observer of young and adults diving off the bridge. The previous day, Dederer jumped twice from the bridge but his feet did not touch the bottom. Since he had seen people diving into the water before he decided to try doing that himself on the day the accident took place. These instances may have excited him to try diving himself. When asked at the court on why he did not pay any heed to the signs of warning, the boy said that he never attached any thought of danger to No diving sign. Although there were various pictorial signs of no diving displayed there, people didnt pay any heed to the images. The RTA then replaced the pictures with signs of NO DIVING and NO CLIMBING, but they failed to make an impact through this initiative as well. The estuary was in the area of beach where tidal activity was at a very high level. Depth of the water was unpredictable and it dropped from time to time at the edge of the sandbar. The water flowing from under the bridge was indeed very deep making it extremely risky for people to dive in high tides. It is surprising that in spite of all these warning signs there were still people who would jump into the estuary from the bridge without any serious action taken by the RTA or the Police. Mr. Philip Dederer filed a case of negligence against the RTA Great Lakes Shire Council. Decision of Trial Court In the verdict of Judge Dunford of the Supreme Court found the RTA and the Council negligent. According to him it was the duty of the RTA and the Council to make the general visitors aware of the probable danger of diving off the bridge, knowing the uncertainty of the depth of the water and the sandbar. The failure of people to follow the warning must have awakened the RTA and Council about the danger surrounding the bridge. They should have worked out various other options or found some other initiatives to make the bridge safer. The bridge had horizontal railings which made it easier for the visitors to jump off. The Judge also said that the RTA violated its duty in taking necessary action such as altering the terminologies in order to draw attention to its probable danger such as, danger, shifting sands, variable depths etc; steps should have been taken to also change the railings from horizontal to vertical in order to prevent diving. They were also unsuccessful in changing the top handrail from flat to something more difficult to stand upon and dive or jump. The Judge also assigned 25% blame on Mr. Philip for being negligent and not considering safety aspects before diving into the water. It was also observed that RTA had the total control of the bridge since they had a greater access to funds which could have enabled them to make modifications to the bridge for the safety of the visitors but they did not take any initiative. Therefore he apportioned 80% of the blame to RTA and 20% to the Council. The verdict obviously made the RTA and Council upset and they appealed against the findings of the Judge about their negligence and well as the blame apportionment. Court of Appeal The majority of the Court of Appeal, Tobias JJA and Handley agreed that the Council as well had a considerable de facto control over the bridge which made them responsible to care for the safety of people, including the plaintiff. It was also said that the boy was big enough to understand his own ability to make that dive or not as well, even in the absence of the sign boards he should have gauged the possibility of danger in jumping from the bridge. The term obvious risk in Division 4 of theCivil Liability Act2002 released the Council from legal responsibility of the boys physical injury as there was an obvious risk of diving from there without any doubt. Over a long period of time the common law has stated that defendants are not liable for risks which are common or obvious argued in cases such as Philips v Daly (1988) 15 NSWLR 65. However even though there is a obvious risk factor it does not negate the duty of care towards people. The Court of Appeal found RTA in the violation of its common law duty due to the plaintiffs safety. They failed to meet the standard of safety that was required under this circumstance. This is the first Court of Appeal case where the defendant had banked on the obvious risk provision in the Civil Liability Act, 2002 and won. Liability of the Road Traffic Authority The evidence stated that the bridge was an allurement to the visitors there especially the youth who knew not much about their own safety aspects given their age factor. The RTA could not have denied witnessing young children diving off that bridge several times in the past. Therefore in spite of probable threat to safety no initiatives were taken by the RTA. Furthermore, modifying the sign boards to suggest danger may have been inexpensive and could have avoided this accident which the RTA failed to do either. The Court of Appeal held the plaintiff 50% at fault for not recognising his safety issues. High Court Verdict The high court stated that the RTA did not owe completely to the risk of injury. The warning signs should have caused people to exercise some level of caution which they failed to do. His Honour also said that the failure of warning signs and the necessary negligence on part of the RTA could not be attributed to the RTAs care of duty. Just because the people failed to heed to the warning does not mean that RTA was at fault. Gummow. J found that the Court of Appeals and the Judge of the Supreme Court, His Honour Dunford Js findings were flawed. They failed to see the limited scope of RTA to determine the actual risk of injury in the plaintiffs case. The RTA did not control the plaintiffs voluntary decision to dive in nor the natural variables such as depth of the water. Plaintiffs Argument Dederer did notice the No diving signboard however did not consider jumping off such a small height, fatal. He did not recognise the impending danger following his jump. Following are the reasons cited by Dederer in his defence against the RTA and the Council. Design of the bridge: It was quite evident that the bridge was used by many tourists to dive down or jump. The construction of the bridge made it easier for people to jump from there. The railings were horizontal and the top most railing was flat which made it easier to find grip to stand over it. This arrangement obviously allured people into diving. The RTA should have considered increasing the height of the bridge and changed the railing to vertical position to prevent diving. Lack of initiative: Additionally the age group of people who jumped was mostly young which the RTA is aware of and it did not cause them to take any initiative for the safety aspect of those visiting there. Change of warning signs: When the RTA observed that the pictures for warning were not paid attention to, they should have thought of changing the warning signs. The No diving sign did not suggest danger. It could have meant a statutory obligation without actually expressing the idea of a probable danger. RTA should have taken steps to put sign boards that said danger, variable depths of water etc to make the people aware. Councils Approach: The council, recognising the inadequacy of the signage approached the RTA to take steps but it proved futile. This clearly showed the negligence on part of the RTA. Had they taken precaution in dealing with this issue Dederers accident could be prevented. Risk- Management Analysis: There werent any risk management analysis done by the RTA to make the place safe for the visitors. The process of Risk management analysis can be explained through the following diagram. The procedure involves thorough communication and consultation followed by monitoring and reviewing the effectiveness of the initiatives taken. The RTA failed to perform the basic requirements to make the place safe. Conclusion The decision of the majority of the High Court Judges in the Dederer case that a minor should take full responsibility of the accident shows a complete disregard in accidents and tragic incidents involving children. According to them a child is supposed to understand the impending danger and act accordingly, which is an uncommon expectation from a child. The very fact that the Law and Order shows leniency to individuals under the age of 18 and considers them as amateurs should be proof enough that children do not have the ability to understand or make sense of what is right and wrong for them, especially where their hormones have the better of them. The High court failed to see what is clearly evident to others that what the RTA should have taken responsibility for is rendered liable to the child. Cases such as Vary V Wyong Shire Council (2005), Cole v South Tweed Heads Rugby League Football Club Ltd (2004) shows the apathy of the High Court towards general public. The RTA held NSW D epartment of Main Roads liable for the design of the bridge constructed. There was a constant shifting of blame and zero responsibility taken for the accident. References: Curwoods Lawyers. (2007). Australia: Roads and Traffic Authority of NSW -v- Dederer [2007] HCA 42. Retrieved from https://www.mondaq.com/australia/x/51912/cycling+rail+road/Roads+and+Traffic+Authority+of+NSW+v+Dederer+2007+HCA+42 Hemmin. A. (N. D. ) Roads and Traffic Authorityof New South Wales V Dederer: 20/20 Hindsight or an accident waiting to happen?A Timely Oppurtunity to Revisit and Reappraise Shirt.Pages 54, 69. Retrieved from https://www.austlii.edu.au/au/journals/JCULawRw/2007/3.pdf Hill. S. (N. D.) "Sec 5F of the Civil Liability Act - obvious risk defence succeeds" : Great Lakes Shire Council -v- Dederer Anor; Roads Traffic Authority of NSW -v- Dederer Anor [2006] NSWCA 101 Afridi. A. (2014) Case : Roads Traffic Authority vs Dederer. Retrieved from https://prezi.com/mmw5y105-med/case-roads-traffic-authority-vs-dederer-2007/ Stewart. P., Monahan. G. . G. Roads and traffic authority of new south wales v dederer* negligence and the exuberance of youth. Introduction. Plaintiffs Claim. Volume 32. Pages 740, 741. Federation Pres. (N. D.) Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761; [2007] HCA 42 (High Court of Australia) Page. 2 Sidney Lawyers. (2014) Roads And Traffic Authority Of Nsw V Dederer [2007] Hca 42 | 30 August 2007. Retrieved from https://peterogrady.com.au/2014/08/30/roads-and-traffic-authority-of-nsw-v-dederer-high-court-of-australia-30-august-2007/ Jade. (N. D.) Roads and traffic authority of nswappellantandphilip james dederer anorrespondents. Retrieved from https://jade.io/article/13922