Comparison of Ann's Rights under Tort of Negligence and ACL, Vicarious Liability of U-Bewt Shoes Factory

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Contents
Solution 1.........................................................................................................................................2
Issues 1.........................................................................................................................................2
Rule..............................................................................................................................................2
Application of Law......................................................................................................................2
Conclusion...................................................................................................................................3
Issue 2..........................................................................................................................................3
Rule..............................................................................................................................................3
Application of law........................................................................................................................4
Conclusion...................................................................................................................................4
Solution 2.........................................................................................................................................4
Issue.............................................................................................................................................4
Rule..............................................................................................................................................4
Application...................................................................................................................................5
Conclusion...................................................................................................................................6
Bibliography....................................................................................................................................7

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Solution 1
Issues 1
Compare Ann’s rights against the salami manufacturer under the tort of negligence with her
rights under ss54 and 138 of the ACL?
Rule
Under the law of negligence a manufacturer is held to be liable for the loss that is caused to the
consumer because of his acts and omissions. In (Donoghue v. Stevenson , 1932), Lord Atkin
submitted that a manufacturer is owned with the duty of care against that plaintiff who is:
(Latimer, 2012)
i. The neighbour of the defendant, that is, the plaintiff and defendant are so closely
connected to each other that the plaintiff will directly get affected by the acts of the
defendant (Anns v Merton London Borough Council , 1978), and;
ii. That the defendant can reasonably foresee the plaintiff (Topp v London Country Bus ,
1993).
When against such plaintiff the level of care that is expected from the defendant is not met, that
is, the level of care short fall the level actually required in the given situation, then, there is
breach of the duty (Reid v Commercial Club (Albury) Ltd , 2014). Because of breach of duty
there should be some loss that must be caused to the plaintiff. The loss must be caused is directly
because of the acts of the defendant (causation) and is reasonably foreseeable (not remote)
(Overseas Tankship (U.K.) Ltd\. Moris Dock and Engineering Co. Ltd , 1961).
Further, as per section 54 of the Australian Consumer Law (ACL), every supplier or the
manufacturer must make sure that the goods that are supplied to the consumer are of acceptable
quality (Grant v Australian Knitting Mills , 1936). Acceptable quality can be analyzed by
considering the finish, defects, appearance of the goods, whether the goods are fit for the purpose
acquired, are safe and durable, etc (ACCC v Valve Corporation (No 3) , 2016). The quality of
the goods can also be analyzed by considering any statement or claims that are made by the
manufacturer or the supplier. (Gillies, 2004)
As per section 138 of ACL, if the consumer because of the defective goods suffers injury or
death then it is the manufacturer who will be held liable for the same.

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Application of Law
As pr the facts, Smallgoods Pty. Ltd is the manufacturer of the processed meat including Salami.
During the production of Salami, its bacteria are killed, a process which is known in the industry.
A batch of salami is produced with a mark “use by 31 July 2018’. But, this batch was not put
through the bacteria treatment process. The salami was dispatched in a transparent air tight
plastic packaging. The Salami was sold to Supermarkets Pty. Ltd for further sale which was
purchased by Ann who becomes ill after its consumption.
Now, under the law of negligence, Smallgoods Pty. Ltd is the manufacturer and thus as per
(Donoghue v. Stevenson , 1932), the company must make sure that no act of it should cause
harm to any consumer. The duty exits for the consumers as all the consumers of the salami are in
proximate relationship with the company. However, the company forgets to put the salami in the
treatment process. This act is nothing but the breach of its duty as it does not met the standard
level of care that is expected in the given situation. Because of breach, Ann suffered loss and was
hospitalized. Thus, the company is totally liable under the law of negligence.
Also, Anncan sue the company under section 54 of ACL as the Salami that is manufactured by
the company is not of the acceptable quality as the name was not safe to consumer and is
defective in nature. The goods are not fit for consumption and thus there is clear breach 54 of
ACL.
Conclusion
Thus, Ann has the right to sue the Salami manufacturer both under the law of negligence and
under section 54 of ACL. Ann can claim damages for the injuries that are caused to her under
section 138 of ACL.
Issue 2
Whether Ann has any rights against Supermarkets Pty. Ltd. under the ACL in relation to the
contaminated salami?
Rule
Section 3 of ACL submits that the provisions of ACL are applicable on those consumers who
have acquired the good of value up to $40,000 for personal or household use.