If you want to talk about Ben Cousins, post it here (mega merged thread)

[Chow-Chicker]

No one has said that WCE have breached their duty of care, just that they owe Cousins one. The High Court was referred to because they are source of the general law (also know as the common law). Lower courts have to follow the law as expounded by the High Court. If Benny did bring an action against his club, the judgments of the High Court would be referred to in determining whether or not WCE had breached their duty. In this instance, if Cousins brought an action, for breach of duty of care, the law is what the High Court has said it to be. You continually demonstrate that you do not know what you are talking about.

Sorry, but you make no sense whatsoever.

Care to elaborate on how they could reach such a conclusion? Taking into consideration the education provided to him on drugs by the AFL, the number of warnings he received, the revised contract arrangements and the rehabilitation he is currently undertaking? If you believe WCE owe Ben Cousins a life after football - you are extremely delusional

[ROK Lobster]

If you believe WCE owe Ben Cousins a life after football - you are extremely delusional

No. I maintain that WCE owe Cousins a duty of care. A duty of care is not life after football. It is a duty to ensure that they take all reasonable steps to ensure that they do not cause him harm through their acts or omissions. If they cut him off without an appropriate level of support in place they may breach it. If the breach results in damage he (or his estate for instance, if he were to OD, or his family if they suffered) may have an action in negligence for breach of duty of care. Again, no one has said that WCE have breached their duty of care, only that they owe Cousins one. There is ample case law on the point. There is no statutory provision because it is a common law principle. The principle has been incorporated into some legislation, but it does not displace the general common law obligation of all people (including corporations) to take reasonable steps to ensure they they do not harm others. Just because you do not understand what the law is does not make me delusional.

[NMWBloods]

Just a few views...

Key club people, fed up with Cousins' behaviour, are understood to be in favour of dumping the champion.

However, the Eagles are mindful of their duty of care, amid serious concerns for the 238-game veteran's mental stability and general wellbeing.

http://www.foxsports.com.au/story/0,8659,22600701-23211,00.html

Mr Brennan has also accused the Eagles of "precipitous action" in sacking Cousins, and urged the former champion to seek advice from contract lawyers on a possible suit against the club.

"I will advise him, and he may or may not accept, to seek the best counsel to ascertain whether there are any corporates who have breached their duty of care to him," Mr Brennan said.

http://www.news.com.au/story/0,23599,22624706-2,00.html

But unless you're prepared to accept that everyone at West Coast ? and the AFL for that matter ? has been wandering around blind, deaf and mute for the past couple of years ? a lot of people have known about Ben Cousins' penchant for mind-altering substances off the field for a considerable amount of time.

Just like the so-called bombshell Andrew "Joey" Johns dropped when he admitted he'd used recreational drugs for most of his career ? something most of the rugby league world had known for years ? it seemed incredible that the Newcastle Knights' administration could say with a straight face it was "news".

But did the admission diminish Johns' reputation as one of the best players his code has produced? Not in my mind. Did it suggest a failure in the duty of care of his employer? Quite possibly.
...
Nothing he has done ? or allegedly taken ? in the past few years has affected his ability to do his job. (Except when club and AFL sponsor pressure forced him into rehab.) If the drugs aren't performance-enhancing, what's the problem?

From where I see it, there's a good case to argue that Cousins has been exploited by his employer and cut loose at the time he needs it most. Repeatedly this week various representatives of West Coast and the AFL have used phrases like "Ben Cousins is very sick and needs help". Really?

So where was the help from the people who have benefited most from his work rate over the past couple of seasons in the immediate aftermath of the death of one of his closest friends in Chris Mainwaring? Where was the duty of care?

http://www.theage.com.au/articles/2007/10/19/1192301040123.html

Barnaba also defended the club's decision to allow Cousins to return to the senior side so quickly after his admission to substance abuse.

"The risk that West Coast took was for the benefit of Ben. What we did was put Ben's interests first. He, through all the advice we took, was very keen to come back to football.

"At that point it was clear that that brought with it a risk but we had a duty of care to an employee," Barnaba said.

http://www.foxsports.com.au/story/0,8659,22611331-23211,00.html

?Unfortunately, Ben?s got a serious problem. At the end of the day, it?s sad what?s happened and there?s got to be a duty of care from West Coast towards Ben Cousins.?

http://www.thewest.com.au/default.aspx?MenuID=12&ContentID=44188

[swantastic]

This is just one big joke,Benny stuffed up WC got rid of him thats it.All this talk of "Duty of care" is just plain stupid,they owe him nothing.

[ROK Lobster]

This is just one big joke,Benny stuffed up WC got rid of him thats it.All this talk of "Duty of care" is just plain stupid,they owe him nothing.

Guess what - you owe him a duty of care too.

[swantastic]

Guess what - you owe him a duty of care too.

And why is that?

[ROK Lobster]

And why is that?

But only if you come into close proximity with him.

[Chow-Chicker]

No. I maintain that WCE owe Cousins a duty of care. A duty of care is not life after football. It is a duty to ensure that they take all reasonable steps to ensure that they do not cause him harm through their acts or omissions. If they cut him off without an appropriate level of support in place they may breach it. If the breach results in damage he (or his estate for instance, if he were to OD, or his family if they suffered) may have an action in negligence for breach of duty of care.

Ah ha, now you're talking. A long bow, and difficult to prove that it would be caused by WCE terminating his contract. His addiction and behaviour prior to the termination would also suggest he may have already be on the road to harm regardless of his contract being terminated. Chris Mainwaring would be an example of self harm due to the addiction he suffered and not by any contract termination.

There is no statutory provision because it is a common law principle. The principle has been incorporated into some legislation, but it does not displace the general common law obligation of all people (including corporations) to take reasonable steps to ensure they they do not harm others.

So do you think WCE have a case against Cousins for the harm he has caused the club? His acts and ommissions have caused harm by damaging the reputation of the club. They have / potentially lost sponsorship support, members, recruitment of players, a captain and brownlow medallist in Chris Judd and face penalties imposed on them by the AFL.

[DST]

That's the smartest thing i have heard you say NMW,and your right because those tossas give way to many lenient sentences and are out of touch with society.

I maybe wrong, but when was the last time a high court judge ruled on a criminal case. Don't they just rule on the interpretation of the law as they stand?

I think you may have your courts and judges mixed up with the lenient sentences....................

DST

[ROK Lobster]

Ah ha, now you're talking. A long bow, and difficult to prove that it would be caused by WCE terminating his contract. His addiction and behaviour prior to the termination would also suggest he may have already be on the road to harm regardless of his contract being terminated. Chris Mainwaring would be an example of self harm due to the addiction he suffered and not by any contract termination.

No, you still do not get it. The termination of the contract is not the issue. They are separate. If they terminate his contract they need to ensure that they provide an appropriate level of support (no support may be deemed to be appropriate - I do not know the facts) to ensure that they do not breach their common law duty of care to Cousins.

So do you think WCE have a case against Cousins for the harm he has caused the club? His acts and ommissions have caused harm by damaging the reputation of the club. They have / potentially lost sponsorship support, members, recruitment of players, a captain and brownlow medallist in Chris Judd and face penalties imposed on them by the AFL.

Interesting argument, but unlikely to succeed. I am unsure if the law allows a cause of action in negligence for pure economic loss, and the WCE would be hard pressed, IMO, to show any physical/emotional damage, not being a natural person (Perre v Apand may have something to say on this - I cannot remember this aspect of the case as I have not had cause to look at it in this regard). Causation would alos be a lot harder to establish in this regard. There would also be policy considerations taken into account - the law likes to protect the little guy. I am not sure that it would have legs, but it certainly is an intersting argument.

[ROK Lobster]

I maybe wrong, but when was the last time a high court judge ruled on a criminal case. Don't they just rule on the interpretation of the law as they stand?

I think you may have your courts and judges mixed up with the lenient sentences....................

DST

HCA will rule on criminal cases on appeal, but rarely have anything to say about sentences. They will decide questions of law - if it was considered that a lower court got it wrong on the sentence - 20 years for a speeding offence for instance - they may have something to say.

[Chow-Chicker]

No, you still do not get it. The termination of the contract is not the issue. They are separate. If they terminate his contract they need to ensure that they provide an appropriate level of support (no support may be deemed to be appropriate - I do not know the facts) to ensure that they do not breach their common law duty of care to Cousins.

I think the contract issue is still relevant. At what point does WC duty of care to Ben Cousins cease? Does it cease at the end or termination of a contract? Does it cease once he's re-employed? Does it cease once he is clean? To point the finger at WC and say you have a duty of care - they need to set the boundaries of when this applies. And what is an "appropriate level of support"? If this is the complicated expectation on a club towards a troubled and addicted employee, then Ben Cousins may be unemployable. What other club would knowingly accept an addicted Ben Cousins into their duty of care when that expectation extends well beyond his playing days?

Do you think the AFL have more common law duty of care? The league administrators were pressuring WC to take action against a wayward Ben Cousins by threatening penalties. And this is the result. Who has more duty of care?

[Wardy]

"The employer has a complementary duty to provide the employee with information, instruction, training and supervision necessary to enable the employee to properly fulfil his or her duty under the Act. The employee has a duty to act in good faith."

that is from the WA Duty of Care Guidelines 2005.(I'm not sure if it has been amended since)

[AnnieH]

No. I maintain that WCE owe Cousins a duty of care. A duty of care is not life after football. It is a duty to ensure that they take all reasonable steps to ensure that they do not cause him harm through their acts or omissions. If they cut him off without an appropriate level of support in place they may breach it. If the breach results in damage he (or his estate for instance, if he were to OD, or his family if they suffered) may have an action in negligence for breach of duty of care. Again, no one has said that WCE have breached their duty of care, only that they owe Cousins one. There is ample case law on the point. There is no statutory provision because it is a common law principle. The principle has been incorporated into some legislation, but it does not displace the general common law obligation of all people (including corporations) to take reasonable steps to ensure they they do not harm others. Just because you do not understand what the law is does not make me delusional.

So, Guzzita has 5 minutes up his sleeve and Annie and Chow look stupid...

I'm not stupid (refer to post earlier). Don't insinuate I'm stupid or I'll sue you for defamation. You've had hours up your sleeve and you've said nothing. Guzzita made more sense in those five minutes that you've made the whole time I've been here.

I don't know if I'd actually want the company who sacked me to look after my welfare after I've left their employ ... they didn't really care for me enough in the first place did they ... they sacked me. They have no moral obligation to hold my hand.

[stellation]

I don't know if I'd actually want the company who sacked me to look after my welfare after I've left their employ ... they didn't really care for me enough in the first place did they ... they sacked me. They have no moral obligation to hold my hand.

And trade unions the world over shake their heads and cry.