TOPIC 1

INTRODUCTION TO

THE LAW
Topic 1 Introduction to the Law

TOPIC OUTCOMES

At the end of this topic you will be able to:

 explain the nature of law and its role in society;

 classify law into criminal and civil and discuss characteristics of each;

 discuss the application of law to the field of engineering;

 contrast law and ethics.

1. INTRODUCTION

Think about the range of activities you do each day and each week. Think
about your studies and the kind of work that you will be engaged in. How
many of these activities are influenced either directly or indirectly by the law?
Now think of the impact of law on those engaged in engineering.

When you stop to think about it you might be surprised to find that the law
and the legal system influences most of our activities. Although we are not
necessarily conscious of the law and how it operates, its presence and
influence are certainly evident in the society in which we live. The law
comprises a vast body of legal rules and principles that have developed over
time, and which are constantly evolving in order to guide and regulate human
behaviour, activities and interaction.

The law also governs and controls activities in the workplace. Therefore it is
necessary for students of engineering to have a basic understanding of and
appreciation for the legal system, how the law operates and the extent to
which the law impacts on and influences our activities. In this unit you will
learn about the legal system and some of the basic areas of law such as
contract law, tort (negligence) law, Australian Standards, Compliance Codes
and intellectual property law among others which are directly relevant to the
engineering context. We begin the unit with an introduction to the nature,
definition and classification of law. This unit is not intended to be a generalist
introductory law course but rather one that is specifically targeted at student
engineers and as a consequence has a law related engineering focus.

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2. NATURE OF LAW

A. WHAT IS LAW?

Any study of law should include, at least, a brief understanding of the nature
of law and its role in society. There are many opinions on what law is, and on
how law, ethics and morality interact.

Law represents different things to different people. Politicians may see law as
an expression of government policy. For example, the Government's decision
to provide unemployment benefits to assist unemployed persons is reflected
in laws allowing for the payment of such benefits. Lawyers, on the other hand,
may see it as a means to earn a livelihood. Police officers may see it as a
source of power and as a set of rules that regulate social behaviour. The
citizen may see it simply as something that is at times a hindrance and at
other times a help.

The following are some of the definitions of law that have been proposed from
time to time over thousands of years.

 Law is the will and command of a supreme bring revealed to humanity

through such instruments as the Bible, the Koran and other religious
texts.

 Law is the command or will of the sovereign, the sovereign being a

person or group of persons whom all other persons in that society obey.

 Law is an instrument of social engineering.

 Law is an expression of the community’s guidelines for acceptable

behaviour.

 Law is a means of ordering society and resolving disputes.

 Law is what the courts declare to be the law.

Although there is no single correct definition, it does however seem that the
various definitions share the following characteristics:

 Law consists of a body of rules for regulating human interaction.

 Law orders society.

 The rules are interpreted, applied and enforced by institutions of state.

For our purposes law can be defined as:

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Those rules established by parliaments and courts which will be

recognised and enforced by the courts.

B. LAW, MORALITY AND JUSTICE

What are the differences between law, morality and justice? Are there any
differences between them? Should laws conform to minimum standards of
fairness?

There is an assumption that law gives effect to the moral values of society
and that law is based on considerations of justice. It is true that the areas
covered by law and morals are sometimes the same and that law and justice
sometimes coincide. For example, there is a law that prohibits stealing, and it
would seem that most people hold the view that stealing is immoral and that
a law prohibiting stealing is a just law. In other areas, however, law does not
necessarily reflect morality but simply regulates behaviour for the orderly
management of society. It is illegal to park the wrong way in a one-way street
but such a law has no obvious moral content. Nor does it necessarily concern
justice.

There are many differences between law and morality. Some are:

 law deals with external behaviour while morality concentrates on the

internal processes of intention, motive, and conscience;

 a violation of the law is met by enforcement of the law by mechanisms of

the State (such as courts), while a breach of morality may be met by
social condemnation and religious censure; and

 the legal verdict in a given situation tends to be in terms of black or

white: judgment will go to either the plaintiff or defendant or the accused
will be found innocent or guilty. Morality is not black or white: one
person's morality is not necessarily another’s morality.

The ambiguous relationship between law, morality and justice raises a

number of interesting questions:

 Can there be a law that is immoral?

 Is there a duty to obey an immoral or unjust law?

 Is an unjust law still a law?

 Should the law be used to enforce morality by punishing acts because

they are considered immoral?

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C. LAW AND ETHICS

The term “ethics” is difficult to define. The Macquarie Encyclopaedic

Dictionary defines ethics as 'a system of moral principles by which human
actions and proposals may be judged good or bad, or right or wrong'.

In one sense, ethics can be seen as an agreed standard of morality. Many

professions, such as the accounting profession and legal profession, adopt
ethical codes which set out for members of the profession standards of
conduct expected of members. Breach of these ethical standards may attract
a punishment imposed by the professional body itself. Many businesses, on
the other hand, may adopt codes of practice in an attempt to self-regulate
their industry, and it is simply left to consumers to judge the behaviour of a
business in the light of a declared code of practice.

D. ENGINEERING CODE OF ETHICS

Engineers work within a legal context. They are governed by the general law
of the land which includes statutory law and common law. However,
engineers, who are members of an engineering profession, are generally also
subject to a code of ethics that comprises a basic set of principles that
establishes a standard according to which engineers work. For example, the
Institution of Engineers, Australia has a Code of Ethics for its members.
Members are required to abide by the Code as part of their commitment to
the Institution and profession, and as part of their responsibility to the
community whom they serve. A breach of the Code is regarded as unethical
conduct. A breach may attract the following sanctions: a reprimand, a fine,
suspension or expulsion from membership and withdrawal of certification on
relevant national registers which will have an obvious impact on an Australian
engineer’s employability.

3. LEGAL SYSTEMS

A legal system may be defined as a framework of institutions and rules within

a community that regulates the community and governs relations between
people and the state.

Legal systems can generally be classified as either Civil Law systems or

Common Law systems.

Civil Law systems have their origins in ancient Rome. These systems use
“Codes” of law which are much like sets of rules that have been developed
from general principles of law. The court’s role in these systems is to apply
the relevant “code” or set of rules to a situation to try and solve the problem.
We call this an “inquisitorial” system. Countries in continental Europe and its

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former colonies are Civil Law system countries as is much of Asia and South
America.

The Common Law legal system originated in England following the Norman
conquest of 1066. It was based on customs or traditions at the time and has
developed “incrementally”, i.e. one case at a time. The court’s role in these
systems is to resolve disputes by applying decisions made in previous similar
cases as well as principles of law. Countries such as England and its former
colonies are Common Law countries. The United States, Australia, New
Zealand, South Africa, parts of Asia and many other generally English-
speaking countries are referred to as Common Law countries.

What is the difference?

The main difference is that the Common Law system is law based on customs
beginning before there were any written laws and continuing to be applied by
courts after there were written laws. The Civil Law system developed from
broad legal principles and is law based on legal writings and principles.

The Australian legal system is based upon the Common Law system. From
1788 – 1992 Australia was regarded as a “settled” colony of England and so
the laws of England were “brought” to Australia. The early colonies did not
recognize the rights of indigenous peoples in Australia and regarded Australia
as Terra Nullius which basically means “land owned by no one”. Of course,
this was not true and in 1992 in the Mabo Case, (Mabo v State of Queensland
(1992) 175 CLR 1), the High Court of Australia rejected the view that
Australia was Terra Nullius and agreed to recognise indigenous rights,
especially claims to land.

4. THE MEANING OF COMMON LAW

The term common law has a number of different meanings, depending on

the context in which it is used:

Law which is based on the English system rather than the European
(or civil law) system

As we have seen above, common law refers to a legal system. The legal
systems in the USA and Commonwealth countries such as Australia, New
Zealand, Singapore and Malaysia were inherited from England. Whilst the
details may be different, the basic principles, procedures and methodology are
essentially the same. They are called common law countries.

Continental Europe and countries influenced by Europe, such as Indonesia,

Japan and the majority of African and South American countries have adopted

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a different system and are called civil law countries. These countries put
more emphasis on codes and general legal principles and less emphasis on
the decisions of judges. A different approach is taken in trials in common law
and civil law countries.

Law which was common to the whole country

Before Henry II, England did not have a single national system of law. Each
local court could make its own rules. Henry II replaced the local courts with
his own judges who applied the same laws throughout the country. This is the
original meaning of common law.

Law which was made by judges

As indicated above, the original meaning of common law was law made by the
King’s judges. Consequently “common law” came to mean law which is
made by judges (rather than law which made by Parliament). This is now the
most frequently used meaning of the term “common law”. In this sense
common law (which is made by judges) is usually contrasted with legislation
or statute law (which is made by Parliament).

Law which was developed by the common law courts rather than
equity courts

The original common law courts only offered a limited range of remedies and
soon became somewhat rigid and inflexible.

Since the King was regarded as the ultimate source of justice, people who
were unable to obtain a satisfactory remedy from his courts began to appeal
directly to him for justice or equity. This became more than the King could
handle so he passed these cases on to his Lord Chancellor. The volume of
cases then grew too much for the Lord Chancellor who had to appoint his own
special court, the Court of Chancery to deal with them.

In time the Court of Chancery developed its own system of rules and
procedures, called equity. Important examples would be the development of
the law of trusts, and the development of equitable remedies such as specific
performance and injunctions.

Consequently, from the middle ages to the end of the 19th Century, England
had in effect two complementary systems of law, “common law” dispensed
by the Court of King’s Bench and “equity” dispensed by the Court of
Chancery.

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This meant, for example, that if you were suing someone for breach of
contract, and wanted to claim damages from them you would have to go to
the King’s Bench as damages was a common law remedy. If you wanted
specific performance, i.e. an order to the other party to carry out the
contract, you would have to go to the Court of Chancery. In 1878 Parliament
decided to combine the two systems, so that they can both now dispense the
rules of common law and equity.

5. CLASSIFYING LAW

There are various ways of classifying law. The most common classification is
criminal law and civil law.

LAW

CRIMINAL LAW CIVIL LAW

Criminal law is concerned with the suppression by the State of anti-social

behaviour. The main purposes of criminal law are to punish the wrong-doer
and, hopefully, to deter others from crime. A breach of the criminal law
attracts a punishment, usually in the form of a fine or imprisonment.

Civil law is law concerned with disputes between individuals. It is intended to

provide a remedy for the individual who takes a matter to court when a wrong
has been done to him or her by another person. A typical remedy in a civil law
matter is the payment of monetary compensation.

Law is also classified as substantive and procedural law.

Substantive law is concerned with the rules that make up the particular
branch of law, such as employment law and contract law. It is the law that
determines the content and meaning of the different rules and legal
principles.

Procedural law is concerned with how a legal dispute is settled. It deals with
the procedures that must be followed in legal proceedings. For example, there
are different procedures for criminal and civil law cases. Criminal procedure
prescribes how people who have allegedly committed a criminal offence
should be prosecuted, and civil procedure lays down the procedure that must
be followed when an individual wishes to enforce his or her rights against
another person.

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HOW TO STUDY LAW

During the course of this unit you will have to answer tutorial questions
(which appear at the end of each topic in this book), as well as having to
answer examination questions.

Tutorial and examination questions in law can be of two types:

 Essay questions; and

 Problem (hypothetical fact situation) questions.

Essay Questions

An essay question is one that requires the student to write an essay

examining or explaining or discussing a particular topic or principle of law.
Words such as "explain", "comment on", "discuss", "write notes on", and
"compare and contrast" are indicative of essay questions.

You should ensure that your essay contains an introduction, the body of the
discussion and a conclusion.

In answering essay questions, the student should:

 give as much relevant detail as possible; and

 ensure that what is written is relevant to the question that is asked.

Legal Problem Questions

Answering legal problem questions is a key skill in legal studies.

A problem question is slightly different from an essay question, because it

presents you with a hypothetical fact situation that raises questions about
someone's legal liability.

In answering a problem question, you should remember that the question is

designed for two main purposes:

 To allow you to show your knowledge of particular areas or principles of

law; and

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 To allow you to demonstrate your ability to apply the law to a given set of
facts in order to conclude whether or not someone could be legally liable.

In showing your knowledge of a particular area or principle of law, you should

be as detailed and as relevant as possible since the examiner will assume that
what you have written is all that you know about that area or principle of law.

Some tutorial questions and examination questions are based upon the
“four-step” approach or process to problem questions which is discussed below. You will be
asked repeatedly during semester to use this technique. Be aware that whilst this is the preferred
method for answering legal problems, the technique has application in other disciplines.

Step 1 - Introduction

Identify the area or areas of law which needs to be explained in order to

answer the question. Usually this is easily worked out from the question
itself. The area of law will always be a topic that has been discussed in the
unit.

Step 2 – Explain the relevant law

Explain principles of law relevant to the area of law. This is your best
opportunity to obtain marks by showing that you know the legal principles
applicable to that area of law. (The extent to which you will be required to
provide detail in an examination will of course depend upon the marks
allocated to that problem and the time you have available). Important cases
should be identified and a brief summary of the facts, the decision of the
court, and a statement of the important principle of law that the case makes
clear should be provided.

In step two you should explain the principles of law as if to someone who
knows nothing about the unit. In that way you will make sure that you
explain at the level that is required.

Step 3 – Apply the law to the problem

Apply the law to the facts of the question in a reasonable and logical manner.
Consider each aspect or element of legal criteria discussed in Step 2 and
decide whether it is satisfied in the scenario that you are considering. For
example, you would say something like “Fred owes Mary a duty of care
because…” It is always necessary to explain which of the facts of the question
indicate that the element of the action has been satisfied.

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Step 4 – Conclusion

Draw possible conclusions. Please note that many problems do not have a
definitive “yes” or “no” answer until the matter has been decided by a court
of law. It is best to state your conclusions in language that reflects this
reality. Use statements like “it is likely…” or “it would appear that”. You only
need to write two or three sentences for the conclusion.

A. EXAMPLE OF THE FOUR STEP PROCESS

The question:

Anne has recently started a new job at a marketing agency. She needs new
clothes to keep up the image required.

Last week Anne saw a “City Street” suit in a suburban branch of Nyer Pty Ltd,
a large department store. She tried it on and liked it, but decided not to buy it
because it was beyond her price range.

On Saturday morning, Anne is thrilled to see that Nyer Pty Ltd is advertising
"City Street" suits for half price. She rushes in to the city store and finds the
suit that she had previously tried on hanging on a rack with a sign saying
“50% OFF” above it.

Anne knows that the suit fits her well, so she takes it to the counter and tells
the salesperson that she will take it. The salesperson tells Anne that the suit
was on the wrong rack, and it is actually not reduced in price at all.

Anne is very annoyed. She is convinced that there is a contractual agreement

binding Nyer Pty Ltd to sell her the suit at the reduced price.

Explain how the law of contract applies to this situation.

A possible response

The Area of Law

The area of law relevant to this question is whether the requirements for a
valid contract to exist have been satisfied.

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Principles of Law

A contract may be defined as an agreement between two or more parties,

which creates rights and obligations that are enforceable at law.

For a valid contract to be formed, three essential elements need to be

present. Firstly, the parties must intend to create legal relations; secondly, it
is necessary for the parties to reach agreement; and lastly, their promises
must be supported by consideration (Monterosso, 2016:2). The element
which is most relevant to the question asked is agreement.

There are several presumptions which are applied by courts in deciding

whether the parties to an agreement intend that agreement to be legally
binding. In commercial or business circumstances, it is presumed that the
parties did intend to create legal relations. In domestic or social situations it is
presumed that the parties did not intend the agreement to be binding in law.
These presumptions may be rebutted by evidence to the contrary (Gibson &
Fraser, 2007:12-13).

An agreement requires that there be a ‘meeting of the minds’. This occurs

when an offer made by one party (the offeror) is accepted by the other party
(the offeree) (Khoury & Yamouni, 2010:21). However, not all communications
passing between parties amount to offer and acceptance at law, and the
principles discussed below assist in determining whether or not a valid
agreement has been reached.

An offer is a firm indication of the terms upon which a party is prepared to be

bound. The offer must be communicated to the person or persons for whom it
is intended (Khoury & Yamouni, 2010:21).

Invitations to treat must be distinguished from offers. Invitations to treat are

less than offers; they are generally intended to induce others to make offers.
Instances of invitations to treat include advertisements, price lists, and
displays of goods in shop windows. For example in Partridge v Crittenden
[1968] 2 All ER 421), Partridge was charged with ‘offering’ protected birds for
sale, after placing an advertisement in a periodical reading “Bramblefinch
cocks / hens, 25s each”. The court held that the advertisement was not an
offer for sale, but merely an invitation to treat. Similarly in Fisher v Bell
[1961] 1 QB 394 a display of a flick-knife in the window of a store with a price
tag was not considered to be an offer to sell only an invitation.

The issue of precisely when and how agreements are made in self-service
stores was determined in Pharmaceutical Society of Great Britain v Boots
Cash Chemists [1953] 1QB 401. Boots Chemists, who opened a self-service
store, were charged with facilitating the sale of ‘prescribed’ drugs, without the
required supervision by a registered pharmacist. The drugs were located on

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the shelves throughout the store and the pharmacist was positioned at the
check-out. Boots argued that placing their merchandise on shelves was
merely an invitation to treat, and that it was in fact their customers who
made the offers by presenting selected goods at the check-out. Acceptance in
turn was made, or rejected, by the attendant pharmacist, and that a qualified
staff member had therefore supervised each sale. The court agreed with this.

Before an agreement will arise, the offeror’s offer needs to be accepted.

Acceptance may be defined as final and unqualified assent to the terms of the
offer, without additions, deletions, or variations. This presupposes that only
those to whom an offer is directed may in turn accept. Furthermore, that the
offer must be present in the mind of the offeree at the time acceptance is
made (Khoury & Yamouni, 2010:33).

Consideration is the “price” that one party pays for the promise(s) of the
other party. Consideration may be in the form of a money price, a service
rendered etc. Consideration may be executed (provided at the time that the
contract was made) or executory (provided at some time after the contract is
made). Consideration cannot be past (Khoury & Yamouni, 2010:66).

Apply the Law to the Facts

To determine whether Nyer Pty Ltd (Nyer) is contractually bound it is first

necessary to examine whether the elements of a binding contract are present.

The interaction between Nyer and Anne occurs in a business context and thus
it would be presumed that an intention to create legal relations exists.

Clearly the display of the suit with a price indicated is an invitation to treat.
This analysis follows the decision in the Boots Cash Chemist case. Anne
makes an offer when she takes the suit to the counter and indicates that she
wishes to buy the suit. Her offer is not accepted, thus no agreement has been
reached.

Conclusion

It appears that no contract exists between Nyer and Anne.

6. FINDING INFORMATION ON LAW

This section deals with how to find information on law in libraries including the
Curtin library. The legal collections in the Robertson Library can be located on
Level 3 and Level 4. Level 3 contains legal reference material, while on Level

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4 at Dewey number 346 you will find texts that are available for general
borrowing.

General Legal Research is made much easier thanks to many web sites. The
most useful general website is: http://www.austlii.edu.au/ .

A. FINDING LAW RELATING TO ENGINEERING

You may find the following sources of law useful:

Building and Construction Law Journal (BCL)

Local Government and Environmental Reports of Australia (LGRA)

7. SUMMARY

The law impacts upon all careers and all aspects of life. From an engineering
point of view the law is an integral part of many of the major functions of your
job. Areas such as tendering and quoting, entering into contracts, designing
and planning, protecting your ideas or inventions, environmental
considerations, hiring employees and obtaining insurance such as professional
indemnity, public liability and workers compensation are all part of your
working experience as an engineer.

It may be that much of the above is delegated to management roles, sub-

contractors or specialists but in many cases you may have responsibility in
these areas. Regardless, you should at least have a basic understanding of
these areas of law as they are vital to your work. Too often professionals
ignore the basics of law and are only really concerned when a problem arises.
Often these problems could have been avoided with just a rudimentary
knowledge of the law or where to find further information beforehand. This
course aims to give you this basic introduction to the areas of law that we
think are important to engineers.

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TUTORIAL QUESTIONS

1. Is law predominately concerned with fairness? Is this ensured by the legal

system?

2. Why is law made by both judges and parliaments? Doesn’t this just complicate
matters?

3. Give an example of an action that may give rise to both civil and criminal
proceedings. What is the distinction between the two?

4. Why is knowledge of law important for members of the engineering profession?

Provide examples of relevant engineering activities to provide support for your
findings.

5. James, a young mechanical engineering graduate has just completed his

engineering degree at a Western Australian University. He has done
exceptionally well in his studies. He applies to the Institution of Engineers,
Australia for membership. On his application he is asked: Have you been
convicted of a crime? James answers NO. It later transpires that James has
been found liable for defamation of a former girlfriend Bianca after he publicly
embarrassed her on television during an episode of ‘Relationships-Get Me
Outta Here’ by revealing intimate details of their relationship which reflected
badly on Bianca. The program was broadcast in 2010. Bianca sued James
and was successful in obtaining $44000 in damages from a Perth Court during
2011. James’s membership of the Institution of Engineers, Australia is
cancelled and he is prohibited from becoming a member for a further three
years. Should James’s membership have been cancelled? What would you do?

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