BULAW5914 Assignment: Consumer Law and Negligence

This assignment discusses the rights of a consumer under Australian Consumer Law and provisions of negligence. It also outlines the defenses and damages under ACL and negligence. The second question discusses the elements of negligence and the defense of volenti non fit injuria.

Running Head: BULAW5914 assignment
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BULAW5914 assignment
Student’s Name

BULAW5914 assignment 1
Question 1
Issue
Every case has certain issues to answer. In the presented case, mainly three issues are
there which are need to be reviewed and answered. The very first issue of the case is to
know about the rights of Jane (Victim person) under Consumer law of Australia as well
as under the provisions of negligence. The second issue of the case is to outline the
defense and damages of Jane under ACL and negligence. The third and the last issue
is to identify the best cause of action for Jane considering and comparing his rights,
damages, and defenses under two of the subjective laws.
Rules
A person who sold something to another has a responsibility to provide safe and
secured goods and the same can be held liable to pay the damages if fails to provide
goods with expected quality. The rights of a consumer are secured under Australian
Consumer Law (ACL)and negligence. Firstly to discuss the rights of a consumer under
ACL, this is to mention that this law has developed to secure the rights of a consumer
from unfair practices and actions of the manufacturer. This law is not separate
legislation and one can find the same in schedule 2 of Australian Competition and
Consumer Act 2010 (CCA)1. Before going ahead, this is necessary t know that who is a
manufacturer?. According to section 7 of this law, a person who grows, extract, produce
1 Australian Competition and Consumer Act 2010 (CCA)

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or assemble some elements is considered as a manufacturer. ACL consist some of the
consumer guarantees, the manufacturer is liable to provide goods accordingly. A
manufacturer will be liable under this act if the same fails to provide goods according to
these guarantees. Section 51 to 59 of ACL provides these guarantees2. According to
section 54, the manufacturer must provide safe goods to the consumer. Section 138 to
141 of the law provides the provisions related to the liability of a manufacturer.
According to section 138 of the act says that if the product sold by the manufacturer has
any safety defect and cause of that consumer suffer from a personal injury then the
manufacturer will be liable to provide the damages. In addition to this action, section
140 of ACL says that in respect to the product safety defect, a manufacturer will also
liable in that situation where because of such defect, the consumer faces some losses
to his/her other goods that he/she was using for in a household or domestic manner.
Another section of ACL, section 142 provides some defenses to the manufacturer that
the same can use and skip his/her liability under section 138 to 141. According to
section 142, there will be no liability of a manufacturer in respect to product safety
defects
 if the defect did not exist while supplying the goods;
 if the defect has occurred as an outcome of obedience with a compulsory
standard;
 if the cause of scientific or technical support, safety defect could not be revealed
and
2 Jenny Kojevnikov and Kathryn Edghill, Australia: Statutory Guarantees Under the Competition and
Consumer Act: A Can of Worms - Part 1 (2018)

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 if the defect is a part of final/finished goods and is only related to the
instruction/marking/design of the same3.
If anyone or two out of the above-mentioned situation would be there then the
manufacturer will not be held liable.
Now, in order to discuss the liability of a person under negligence, this is to state that
negligence is a concept, which is identified and recognized by common law (Tort Law)
as well as by legislation. Under Tort Law, the liability of a person to pay damages arises
when the same breaches his/her duty of care and cause of the same another person
suffers from a loss. This situation is known as negligence. The Tort Law identifies three
kinds of losses, for that a victim can ask for the damages. These losses include financial
loss, personal physical injuries, and psychiatric harm. The duty of care must be there to
establish negligence. In the case of Bourhill v Young4, the court held that a person
would not owe a duty of care if the same has no proximate relationship with the victim of
a case. It was given in the case of Topp v London Country Bus5 that a person would
seem to owe a duty of care where he/she could foresee the involved risk. At last as
decided in the cases of Caparo Industries Plc v Dickman6, to establish a duty of care, it
must be reasonable to impose such duty on a person. In addition to these cases,
another case titled The Wagon Mound no 17 is also an important one where the rule of
the remoteness of damages has been checked. It was given in the decision of this case
that damages will be treated as too remote if the defendant was not able to foresee
3 Legal Vision, What is a defective Goods Action? (2016) < https://legalvision.com.au/what-is-a-defective-
goods-action/>.
4 Bourhill v Young [1943] AC 92.
5 Topp v London Country Bus [1993] 1 WLR 976.
6 Caparo Industries Plc v Dickman [1990] 2 AC 605.
7 The Wagon Mound no 1 [1961] AC 388.

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them. If to talk about the damages under negligence, this is to mention that common law
does not provide an upper limit on the number of damages but the legislation does so.
As mentioned above that in addition to the common law, the legislation also contains
the provisions related to negligence, this is to state that wrongs Act 1958 (Vic.)8 is the
subjective legislation. Further, by the virtue of Wrongs Amendment Act 2015 (Vic.)9,
certain limits have been put on the maximum amount of damages. Amendment has
been made in the section 28G of the original act and according to the same for the non-
economic losses, a victim can ask for the damages amounted maximum to $577,050.
Tort Law prescribes certain defenses that a person can use to skip his/her liability under
a claim of negligence. Contributory negligence is one of such defense, which can be
used in those situations where the victim contributes to the negligence of the defendant.
In cases of this defense, the amount of damages reduced to a certain level considering
the facts and situation of the case10.
Application
In the case provided hereby, a person named Jane bought a cellphone galaxy Note 7.
Samsung was the manufacturer of this phone, which had a safety defect. When the
company became aware of the defect, the same recalled the devices form the market
but Jane did not return her cellphone and later on suffered from personal injury and loss
of her BMW car. According to the provisions of ACL, Samsung was required to provide
goods according to the guarantee mentioned under section 54 of law. Here, the battery
of the cellphone had a safety issue as the same was overheating. Applying the
8 Wrongs Act 1958 (Vic.)
9 Wrongs Amendment Act 2015 (Vic.)
10 Emanuel van Dongen, ‘Contributory Negligence: A Historical and Comparative Study’ (Martinus Nijhoff
Publishers 2014) 278.

BULAW5914 assignment 5
provisions of section 138 and 140 of ACL, Samsung is liable to pay the damages to
Jane as because of the safety defect in the phone, Jane suffered from a personal injury
as well the loss of other goods i.e. her BMW car which she was using for personal
purpose. The amount of damages has not prescribed a limit when it comes to the study
of ACL. The third aspect, which is defense available to Samsung, this is to mention that
none of the defense mentioned under section 142 Samsung can use as the defect was
there at the time of supply, could foresee, was not related to design of final product and
the same was not a result of the requirement of any standard compliance.
On the other side, applying the provisions of the case of Bourhill v Young, Topp v
London Country Bus and Caparo Industries Plc v Dickman, Samsung owed a duty of
care to Jane as the same had a proximate relationship, the risk could be foresee and
imposition of duty of care on Samsung seems to be justifiable. Here, Samsung
breached the duty of care by providing defective goods to Jane and the same is liable
for the negligence as the same breached the duty of care and cause of the same Jane
faced losses. The risk to BMW was not foreseeable and therefore applying the
provisions of the case of Wagon Mound no 1, the same was remote. Here Jane can ask
the damages for personal injury only and the same will be subject to the limit of
$577,050. The amount of damages will be reduced as Samsung can ask the defense of
contributory negligence because Jane did not return her cellphone even when Samsung
recalled the same in a formal manner.
Conclusion

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The situation is beneficial under ACL for Jane as there is no limit on the amount of
damages, she can ask the damages even for the loss of her BMW car and at last, the
amount of damages will not be reduced as no defense would be available to Samsung.

BULAW5914 assignment 7
Question 2
Material Facts
In this case, personal injuries were suffered by Alan and Steven when Steven’s car ran
into a stationary truck. Alan took a lift from Steven while they both were intoxicated.
Alan knew that Steven was drunk because they both were drinking at the same venue.
Still, Alan agreed to get a lift from Steven in his car. Steven was driving at a fast speed
in order to impress Alan due to which he lost control of the car, and it ran into a
stationary truck.
Issue
The issue presented in this case is whether Alan has the right to hold Steven liable for
the personal injuries suffered by him. Are there any rights available for Alan to claim
damages for the injury suffered by him?
Rule
A suit for negligence can be filed in order to recover damages for the loss suffered by a
party due to the fault of another person to maintain a duty of care. The party who
wanted to recover damages for personal injuries have to prove that the essential
elements of negligence are present.11 The first element which is evaluated by the court
is whether the defendant has a duty of care because a person cannot be held liable for
negligence unless he/she owes a duty of care. In order to determine this duty, the court
relies on the judgment of Donoghue v Stevenson.12 In this case, the modern principles
11 Joseph A. Barravecchio, ‘The tort of negligence’, (2013) 25 (4) Legaldate 4.
12 Donoghue v Stevenson (1932) AC 532

BULAW5914 assignment 8
of negligence were established by the court, and it was held that the ‘neighbor test’ can
be used to assess whether a party owes a duty or not. This test determines the duty
based on two elements. The first element is proximity relationship between parties; the
parties of a suit for negligence must be in a close relationship. The second element is
foreseeability of the risk; the threat of damages must be foreseeable for the party. If
these two elements are present, then a party owes a duty of care.
The second element which is evaluated by the court is a breach of such duty which is
determined based on an objective test. As per this test, the court assesses whether the
defendant acted in a reasonable manner which is expected for a reasonable person.
Causation is another key element in a suit of negligence. In the judgment of Lindeman
Ltd v Colvin13, it was held by the court that a party could not claim remedy for damages
which are not caused due to the breach of duty by the party.14 The fourth element is that
the damages must not be too remote because parties cannot claim damages for injuries
which are too remote. In a suit for negligence, the defendant can rely on the defense of
volenti non fit injuria to avoid the liability. As per this defense, if the victim knew about
the risk involved in a particular scenario, but he/she still proceed, then the victim cannot
claim damages for negligence. The court provided in the judgment of Morris v Murray15
case that getting a lift from an intoxicated person is considered as acceptance of the
risk. It means that if the passenger suffers a personal injury, the defendant cannot be
held liable.16
13Lindeman Ltd v Colvin [1946] HCA 35
14 Douglas Hodgson, ‘Intervening causation law in a medical context’, (2013) 15 U. Notre Dame Austl. L.
Rev 22.
15 Morris v Murray [1991] 2 QB 6
16 Geoffrey Samuel, Law of obligations & legal remedies (Routledge, 2013).

BULAW5914 assignment 9
Application
In the present case, Alan agreed to get a lift from Steven even after knowing that he is
intoxicated. Although a duty was owed by Steven based on neighbor test since they
were in proximity relationship and the risk was foreseeable (Donoghue v Stevenson).
Steven violated this duty because he did not act reasonably by driving at a fast speed.
The personal injuries suffered by Alan were caused due to a breach of duty by Steven;
thus, an element of causation is present as discussed in Lindeman Ltd v Colvin. Lastly,
the damages were not too remote since they were foreseeable. Therefore, Alan can file
a suit for negligence against Steven. However, Steven can claim defense under the
doctrine of volenti non fit injuria in order to avoid his liability. He can claim that Alan
knew that he was intoxicated still he agreed to get a lift from him based on which he
agreed to the risk as provided in Morris v Murray.
Conclusion
In conclusion, the court is likely to reject the claim of Alan to recover damages for
personal injuries based on the defense of volenti non fit injuria.

BULAW5914 assignment 10
Bibliography
A Articles/Books/Reports
Barravecchio, Joseph A., ‘The tort of negligence’, (2013) 25 (4) Legaldate 4.
Dongen Emanuel van, ‘Contributory Negligence: A Historical and Comparative Study’
(Martinus Nijhoff Publishers 2014)
Hodgson, Douglas, ‘Intervening causation law in a medical context’, (2013) 15 U. Notre
Dame Austl. L. Rev 22.
Samuel, Geoffrey, Law of obligations & legal remedies (Routledge, 2013).
B Cases
Bourhill v Young [1943] AC 92
Caparo Industries Plc v Dickman [1990] 2 AC 605
Donoghue v Stevenson (1932) AC 532
Lindeman Ltd v Colvin [1946] HCA 35
Morris v Murray [1991] 2 QB 6
The Wagon Mound no 1 [1961] AC 388
Topp v London Country Bus [1993] 1 WLR 976

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C Legislation
Australian Competition and Consumer Act 2010 (CCA)
Wrongs Act 1958 (Vic.)
Wrongs Amendment Act 2015 (Vic.)
D Others
Legal Vision, What is a defective Goods Action? (2016) <
https://legalvision.com.au/what-is-a-defective-goods-action/>.