BULAW5914 Assignment: Consumer Law and Negligence

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BULAW5914 assignment
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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
or assemble some elements is considered as a manufacturer. ACL consist some of the
1 Australian Competition and Consumer Act 2010 (CCA)

BULAW5914 assignment 2
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)

BULAW5914 assignment 3
 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.