ACL Defenses Against Product Liability

This assignment delves into the intricacies of Australian Consumer Law (ACL) by analyzing defenses available to manufacturers facing product liability claims. It focuses on Section 142 of the ACL, which outlines four key defenses: lack of defect at supply, compliance with mandatory standards, limitations due to scientific knowledge at the time, and defects attributed to design, markings, or instructions. The assignment presents a hypothetical scenario involving damaged property caused by a defective product and explores how Hank's, Distributors Ltd., or Mower Ltd. could utilize these defenses against Ann, Bruce, and Carol's potential claim.

Running Head: Public Law 1
Law

Public law 2
Part A
Tort law is considered as civil wrong done by one person towards another person, and the most
common form of tort law is negligence. Negligence is considered as an action or failure to act by
one person who owns duty of care towards another person, and such act or failure to act cause
injury or damage to person.
In the present case, P is a lifelong fan of ABC Club and at the time of watching a game, p was
hit by a stray ball which broke the glasses of P. In this case, P can take action against the
defendant under tort of negligence.
This part of the answer defines the position of each possible defendant related to legal action,
and for the purpose of this case relevant defendants are player, Football club, Coach, and the
local council who owns the football club1.
It must be noted that in some cases several tortfeasors are held liable for the tort committed by
these parties against one party, and in this context all the tortfeasors are jointly liable for the
harm. They are liable towards the plaintiff may depend on their individual degree of liability, as
well as the rules for that particular jurisdiction.
In the present case, P can take actions against the Football Club because club owned duty of care
towards the P and other defendants are also jointly liable for the negligence. In this case, Football
club is mainly liable towards the P and P can take action against the Football club.
This can be understood through case law Miller v. Jackson (1977)2, in this case plaintiff sued the
cricket club for damage caused to their property by balls. In this case, defendants were the
1 Lawgovpool, TORTS, http://lawgovpol.com/torts/, (accessed on 17th January 2018).
2 Miller v Jackson [1977]3 WLR 20 Court of Appeal.

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members of the Lintz Cricket Club and in this ground cricket had been played from last seventy
years. This land was owned by the National Coal Board (NCB) and this board also owed some
fields adjacent the grounds. Four years before the action, one of the grounds was sold out by the
NCB and on this Wimpey homes was developed near the cricket ground. Mrs. Miller bought one
of the houses and take action under tort of negligence against the cricket club. In this Mrs. Miller
seeks injunction to prevent the players from playing the cricket at the ground. At initial stage,
there were number of balls which hit the house of Mrs. Miller.
However, during the period of 1976 cricket club made the higher fence and the number of balls
hit the house was reduced. No personal injuries resulted from the ball but it result in some
property damages for which cricket club made the payment. She also made complaint that it was
not possible for her to use her garden during the matches3.
In this case, court decided that defendants were liable for both negligence and nuisance.
However, injunction was refused by the Cumming Bruce LJ on the ground that it would not be
fair to provide injunction against the cricket ground because this ground had been used for so
long and it also result in loss to the community. Injunction would also provide advantage to Mr.
Miller of being adjacent to an open space.
Lord Lane in this case granted the injunction on the basis of the decision in Sturges v
Bridgeman4 and this case involves the assumption that there was no defense on the part of
defendant to show that they result in the nuisance.
3 Legal Services Commission of South Australia, Negligence, https://www.lawhandbook.sa.gov.au/ch01s05.php,
(accessed on 17th January 2018).
4 Sturges v Bridgeman [1879] 11 Ch D 852 Court of Appeal.

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Therefore, it can be said that P can take action against the football club under tort of negligence
and football club is liable towards the P for damage caused to P.
Part B
Answer 1: tort of negligence is considered as legal action which can be taken by the plaintiff
against the defendant who owned duty of care towards the plaintiff. Liability in this arises when
there is duty to take care and breach of such duty cause damage to the plaintiff5. Following
elements must be satisfied for taking action under tort of negligence:
 Defendant must own duty of care towards the plaintiff.
 Such duty of care must be breached by the defendant.
 Breach of duty must cause damage to the plaintiff6.
This can be understood through case law Jaensch v Coffey (1984) 155 CLR 5497, in this case
plaintiff was the wife of a policeman who suffered injury at a road accident. Plaintiff was not
present at the time of the accident and she went to the hospital after she gets the information
about the serious condition of her husband. When she heard about the injuries of her husband she
developed a psychiatric illness. In this plaintiff took action against the person who was
responsible for the accident.
5 Blay, S. The nature of tort liability, http://www.findlaw.com.au/articles/149/the-nature-of-tort-liability.aspx,
(accessed on 17th January 2018).
6 Legal match, Tort Law Liability, https://www.legalmatch.com/law-library/article/tort-law-liability.html, (accessed
on 17th January 2018).
7 Jaensch v Coffey (1984) 155 CLR 549.

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In this case, High Court unanimously decided that plaintiff had right to receive damages from the
defendant because might be she did not get damages at the place of the accident but on attending
at the hospital. Court held that injuries caused to plaintiff were foreseeable in nature.
In the present case, Bruce owned duty of care towards the Ann and carol because all the injuries
in this case are foreseeable in nature. On the basis of above stated case, it can be said that Bruce
is liable towards the Ann and carol because he owns duty of care towards them, such duty is
breached by the Bruce, and such breach cause damage to the Ann and carol.
Answer 2: contributory negligence is happened when injured person themselves contributed in
the cause of their loss and injury. In case, plaintiff itself failed to take reasonable care for their
own safety or loss then they will be considered as contributory negligent. In case of contributory
negligence amount of damages will be reduced to the extent up to which plaintiff contributed in
the negligence.
For the purpose of establishing the contributory negligence, normal test will be applied. This test
is stated below:
Duty of care- in this duty of care is always present because person always owns duty to take
reasonable care in context of his own safety.
Breach of duty of care- breach of duty of care occurred when plaintiff have to reasonably
foreseen that if he fails to act with reasonable care then it might be possible that he hurt himself.
For this purpose, reasonableness is measured subjectively on the basis of what specific person
knows or must know at that time.

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Damage- Plaintiff must suffered damage from the breach of duty of care he owned towards
himself8.
It must be noted that, there is no need that action of plaintiff is the original cause of the damage;
it is the enough reason that such cause forced the damage. In case law Jones v Livox Quarries
Ltd [1952] 2 QB 6089, Court held that contributory negligence on part of plaintiff in context of
his own damages extends only to those damages which are not too remote in nature.
In the present case, Hank’s, Distributor and Mower can use the defense of contributory
negligence against the Ann, Bruce and Carol. They can state that Ann, Bruce and Carol failed to
take reasonable care for their own safety or loss.
Answer 3: part 3-5 of the ACL is developed on the basis of EC Directive on Defective Products,
1985 and mirrors the old Part VA of the TPA, but there is one exception that it refers to a person.
It is not possible for manufacturer to exclude the liability in the context of part3-5 of ACL. As
per the provisions of part3-5 of ACL, buyer of the goods has right to take action against the
manufacturer when any goods with safety defects cause injury or loss to that person10.
It must be noted that, goods have safety defect if safety expected by person is not provided by
the goods and this involves two elements that are an expectation and an entitlement to a certain
level of safety. Section 138 to Section 141 of the Australian Consumer Law- Schedule 2 defines
the liability of manufacturer in context of safety defects in the goods:
8 Uni Study guides, Contributory negligence,
http://www.unistudyguides.com/wiki/Contributory_negligence#cite_ref-9, (accessed on 17th January 2018).
9 Jones v Livox Quarries Ltd[1952] 2 QB 608.
10 Clayton UTZ, Product Liability, https://www.claytonutz.com/articledocuments/178/ICLG-Product-Liability-
Australia-2015.pdf.aspx?Embed=Y, (2015), (accessed on 17th January 2018).

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Section 138 of ACL states the liability in case defective goods cause loss by injured the
individual. As per this section, manufacturer of the goods will be held liable if because of the
safety defects in the goods any person suffer injury or death. In this case, Manufacturer of the
goods is held liable for the actual loss suffered by the consumer because of the injuries suffered
by consumer11. In the present case, Ann and Bruce can take action under section 138 of ACL
against the Hank’s, Distributors Ltd. or Mower Ltd because they both suffer injury because of
the safety defects present in the goods.
Section 139 of the 12ACL states the liability of manufacturer for defective goods Causing Injury
to a Person Other than the Injured Individual. This section states that manufacturer is also held
liable in case any person suffers injury because of the injury or death caused to consumer from
defects present in the goods. In the present case, carol can take action against the manufacturer
under section 139 of the Act.
Section 140 of the ACL defines the liability of manufacturer in case of loss caused to other
goods because of the defective goods. As per this section, manufacturer of the goods is held
liable if because of the safety defect in the goods any other goods that are used for personal,
household, domestic or consumption purposes are damaged13. In the present case, carol can take
action under section 140 of ACL against the Hank’s, Distributors Ltd. or Mower Ltd because of
the damage caused and disk with important data.
Section 141 of the ACL defines the liability of manufacturer in case defective goods cause
damage to land, building, or fixtures. This section held the manufacturers of the goods liable in
11 Australian consumer Law- Section 138.
12 Australian consumer Law- Section 139.
13 Australian consumer Law- Section 140.

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case damage cause to land building and fixtures because of the defective goods. In the present
case, Bruce can take action under section 141 of ACL against the Hank’s, Distributors Ltd. or
Mower Ltd because of the damage caused to the window and front fence of the house14.
Answer 4: Section 142 of the ACL15 defines the four defenses which can be used by the
manufacturer of the goods against the arguments stated by plaintiff under part3-5 of the ACL:
 Clause a of this section states that manufacturer can use the defense that defect in the
good does not exist at the time of supply of the goods.
 Clause b of this section states that manufacturer can use the defense that defect occurred
because consumer complied with the mandatory standard.
 Clause c of this section states that manufacturer can use the defense that he is not able to
uncover the defect because of the technical and scientific knowledge at the time. This
defense is known as the state of art defense.
 Clause d of this section states defect is present in the finished goods and defect is only
related to the design, markings or instructions of the goods.
Hank’s, Distributors Ltd. or Mower Ltd can use the above stated defenses n the present case
against the Ann, Bruce, and carol.
14 Australian Consumer law- Section 141.
15 Australian Consumer Law- Section 142.

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References:
Australian consumer Law- Section 138.
Australian consumer Law- Section 139.
Australian consumer Law- Section 140.
Australian Consumer law- Section 141.
Australian Consumer Law- Section 142.
Blay, S. The nature of tort liability, http://www.findlaw.com.au/articles/149/the-nature-of-tort-
liability.aspx, (accessed on 17th January 2018).
Clayton UTZ, Product Liability, https://www.claytonutz.com/articledocuments/178/ICLG-
Product-Liability-Australia-2015.pdf.aspx?Embed=Y, (2015), (accessed on 17th January 2018).
Jaensch v Coffey (1984) 155 CLR 549.
Jones v Livox Quarries Ltd[1952] 2 QB 608.
Lawgovpool, Torts, http://lawgovpol.com/torts/, (accessed on 17th January 2018).
Legal match, Tort Law Liability, https://www.legalmatch.com/law-library/article/tort-law-
liability.html, (accessed on 17th January 2018).
Legal Services Commission of South Australia, Negligence,
https://www.lawhandbook.sa.gov.au/ch01s05.php, (accessed on 17th January 2018).
Miller v Jackson [1977]3 WLR 20 Court of Appeal.
Sturges v Bridgeman [1879] 11 Ch D 852 Court of Appeal.
Uni Study guides, Contributory negligence,
http://www.unistudyguides.com/wiki/Contributory_negligence#cite_ref-9, (accessed on 17th
January 2018).