Case Analysis on Australian Consumer Law and Law of Tort

This case analysis discusses the provisions of Australian Consumer Law and the Law of Tort in two different situations. The first situation involves the liability of a salami manufacturer and the second situation involves the liability of a factory for damages suffered by an employee. The analysis covers the elements of duty of care, breach of duty, causation, and damages. The relevant laws and cases are also discussed in detail.

Running head: CASE ANALYSIS
Case Analysis
Name of the Student
Name of the University
Author Note
Answer 1

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CASE ANALYSIS
Part 1
Issues
There are two issues which are involved in this case. The primary issue which is
whether Ann has any claim against the Salami manufacturer under Section 54 and 138 of the
Australian Consumer Law. The secondary issue is whether Ann has a right against the
Supermarket Pty Ltd.
Relevant rules
The issues in this case can be solved by discussing the provisions of Australian
Consumer Law and the Law of Tort. Consumer law ensures that products or goods which are
sold in the market, should be supplied in the market if it is safe and free from minor defects
and acceptable in the market. Section 54 of Competition and Consumer Act 2010 requires
that goods should be of acceptable quality. The Section provides that there is a guarantee that
a good is of an acceptable quality if a person supplies the good to a consumer in trade or
commerce. The Section further explains the acceptable standard of quality which provides
that a good should be fir for all purposes for which that kind of goods are supplied. In this
respect, a good should be regarded to have acceptable quality, if the consumer is acquainted
about the representation or any other relevant circumstances made of the good by the supplier
or manufacturer. Clause 4 of this Section provides that if a good, which is supplied to a
consumer, does not meet acceptable quality, the reason for not being able to comply with the
provision should be drawn to the attention of the consumer. In the famous case ACCC v
Valve Corporation (No 3) [2016] FCA 106 it was held by the Court that Section 54 of the
Australian Consumer Law should be applied in a the case. In Norton v Hervery Motors Ltd, it
was held by the District Court that acceptable quality of a good should be determined by
reasonable consumer test regard to the factors listed in Section 7(1).

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CASE ANALYSIS
Additionally, Section 138 of the Competition and Consumer Act 2010 provided that
an action can be taken against the manufacturer for the liability of any damage or loss
suffered by a person for a good with safety defect. It is provided that a manufacturer of good
shall be liable to make compensation to a person if the good has a safety defect in it and the
reason for suffering injuries by the individual is the result of safety defects. The individual
could recover the damage he has suffered, from the manufacturer, if the safety defect was the
neglect or wrongful act of the manufacturer. The Australian Consumer Law has conferred
powers upon ACCC to issue notices requiring the production of information or documents.
Civil penalties for the breach of the provision can extend up to A$220,000 for an individual
for every contravention.
Negligent act of the manufacturer can be described by analysing the famous case of
Donoghue v. Stevenson [1932] All ER 1, where it was established that negligence is the act of
causing careless injury to a person or a property. Where a person fails to oblige with the duty
to care he owes to another person, he shall be deemed to have committed negligence. The
individual should be liable for foreseeable injury which the plaintiff may have suffered
because of his act.
In the landmark case of Bolton v Stone [1951] AC 850 the likelihood of causing harm
to a person was analysed by the Court. If the injury suffered by the plaintiff was foreseeable
by a reasonable person, the defendant shall be liable for causing breach of duty.
Application
In this case, there were negligence on the part of Smallgoods Pty. Ltd. The company
manufactures processed meat products, which itself requires that they should be careful while
making a particular batch of products available to the market. Every product requires to
undergo bacteria treatment process. The product which Ann purchased and consumed was

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CASE ANALYSIS
not put through the bacteria treatment process and was contaminated. It was the negligence of
the Smallgoods Pty. Ltd. that they did not perform their duty to care and put through the
packaging for bacteria treatment process, which resulted into ill health of Ann. The breach of
duty to care was also contravening the Section 54 of the Competition and Consumer Act
2010. The salami product failed to meet the consumer guarantee regarding product safety.
Finally as a breach of duty to care and supply goods of acceptable quality has been
identified in the case study, the manufacturer that is the Smallgoods Pty. Ltd. can be held
liable as per the Section 138 of the Competition and Consumer Act 2010. Smallgoods Pty.
Ltd. sold the unacceptable quality of salami which made Ann suffer serious health issues. It is
the duty of the manufacturer that if a product does not meet the acceptable quality, the reason
should be communicated to the consumer. Smallgoods Pty. Ltd. failed to do so as well.
Hence, the causation is satisfied and damages can be claimed from Smallgoods Pty. Ltd.
Conclusion
The conclusion can be made thereafter observing the situation had Smallgoods Pty.
Ltd is liable for being negligent to supply goods which are of acceptable quality.
Part 2
Issue
In this present case, the involved issue is to determine whether Ann has any right
against the Supermarkets Pty. Ltd.
Relevant Laws
Under the Australian Consumer Law, retailer can be held directly liable for the loss or
damages that a consumer has suffered from a good which contravenes consumer guarantee
provided under Sec 54 of the Competition and Consumer Act 2010. If any damage is suffered

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CASE ANALYSIS
by a consumer, Australian Consumer Law requires that the damage should be reported to the
manufacturer. Section 54 of the Competition and Consumer Act 2010 applies to the retailer
or seller also as they have a duty towards the consumer to provide goods which are of
acceptable quality. The Australian Consumer Law shall consider the way in which the
product is being marketed, its packaging and the warnings or instructions accompanying the
good while determining the safety of a good. The seller also owe a duty of care to the
consumer. If the consumer guarantee is not met, the seller shall be liable to any damages
caused to a person. It is provided under Sec 208 of the Competition and Consumer Act 2010
that if the contravention to product safety was due to the act of any other person in spite of
performing due diligence to avoid such incident by the defendant, the defendant cannot be
held liable for any injury or damage caused to the plaintiff.
It was established in the case of Zuvela v Geiger [2007] WASCA 138 that a reasonable
purchaser would expect a good to be o acceptable quality, if it is being sold otherwise than in
an auction. Any defects in the good should be made known to the consumer.
Application
The batch of salami which was contaminated was not the responsibility of the
Supermarkets Pty. Ltd. The seller of a product is not expected to check the bacterial
contamination of a product. The processed meat is put through a bacteria treatment process
which was the sole duty of Smallgoods Pty. Ltd. The injury which Ann suffered was not
foreseen by Supermarkets. It was held in the case of Cork v Kirby Maclean [1952] 2 ALL ER
402 that, it needs to be proved in a case that the injury was the liability of alleged party and
could have been avoided by any act or omission of the party They did not owe any duty of
care regarding the bacteria treatment check to the consumers. The product had not expired
when Ann purchased the product from the store. In this case, there was a contributory
negligence of Ann, as she did not look at the ‘use by’ date, which she was expected to take a

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CASE ANALYSIS
look at. Supermarket cannot be held liable in this case, as they did not have an information
about that particular batch not to be undergone the treatment process. When it was made
available in their store to the consumer, the product was within due date. They would have
been held liable if the injury caused to Ann was foreseeable by the Supermarket. There was
no breach of duty on their part as they did not owe any duty to check whether a product is
contaminated or not. Additionally, it was the fault of Ann herself that she used the salami
after it was expired. Though the sign that Supermarket Pty. Ltd. had regarding limiting their
liability is not a valid ground for escaping the liability of a seller, the injury which Ann had
suffered was not for the negligence of Supermarket. Ann cannot claim any damages from
Supermarket.
Conclusion
Therefore, from the above discussion, it can be concluded that, the injury caused to
Ann was the result of negligent act of Smallgoods Pty. Ltd. and Ann. Here, Supermarket Pty.
Ltd. cannot be held liable under the ACL.
Answer 2
Issue
The issue in this situation is to derive Shanti’s rights to claim compensation for the
damages suffered by her from the factory under the rules relating to the tort of negligence.
Rule
Negligence
The causing of harm to another person to whom a duty of care is owed due to not
acting in a reasonable way is called negligence under tort law. Three elements are required to
assess the existence of negligence. They are categorised as duty of care, breach of duty and

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CASE ANALYSIS
causation. Further to analyze damages the element of remoteness also has to be taken into
consideration. These elements are discussed below.
Duty of care
The notion of this element had been brought to existence through the landmark case
of Donoghue v. Stevenson [1932] All ER 1. The provisions of the civil liability Act 2002
with respect to duty of care is interpreted in the light of common law rulings. The neighbour
principle was provided by the case. The principle makes any person liable whose failure to
take reasonable care may cause harm to another person. This may be proved under the
provisions of the foreseeability test or proximity test. The proximity of the defendant and the
plaintiff is analyzed through the tests.
In the case of Govier v UnitingCare Community [2017] QCA 12, the court expressly
stated that the employer has a duty of care to the employees with respect to the workplace. In
case the employees are injured in the work place the employer has to take liability if it is
because of their negligence.
Breach of Duty of care
The breach element is taken into consideration after duty of care. The element is
analyzed through the use of an “objective test”. The objective test has been discussed in the
case of Bolton v. Stone [1951] AC 850. In this case the court stated that a person who is
having a duty of care must act like a reasonable person to prevent the harm. The reasonable
person would take into consideration elements like probability and seriousness of injury
along with the additional care burden. These elements were analyzed and applied in the case
of Paris v. Stepney Borough Council [1951] AC 367.
Causation

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CASE ANALYSIS
The final factor of establishing negligence is causation. This element is analyzed by
the “but for” test. The test had been used in the case of Cork v Kirby Maclean [1952] 2 ALL
ER 402. The test signifies that the injury to which the plaintiff have been subjected to must
result out of the second element which is the breach. This means that the injury must be a
sole result of the breach. The existence of the injury without the breach would nullify a claim
for negligence.
Remoteness
Under this element the courts analyze the fact that whether the injury which has been
suffered is too remote to be compensated. A damage which may be too remote for a
reasonable person to foresee is not allowed to be compensated under the rules of negligence.
Only those damages which have to capacity of being foreseen reasonably would be
compensated by the courts as per the case of Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd [1961] AC 388.
Damages
Damages are provided to the plaintiff in case negligence is established for the
damages incurred because of the careful act.
Application
Shanti has been working for the factory and parks her car in a place owned by the
factor. This would mean that an authorized person who parks his car i that place would be
owed with a duty of care. This is because the neighbour principle makes any person liable
whose failure to take reasonable care may cause harm to another person. In addition, the case
of Govier v UnitingCare Community also provided that if the employees are injured in the
workplace the employer has to take liability for injury. Therefore the factor owed a duty of
care to Shanti.

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CASE ANALYSIS
As the factory owes a duty of care to Shanti, the further analysis is required in relation
to the second element of breach of duty. The objective test states that a person who is having
a duty of care must act like a reasonable person to prevent the harm. The reasonable person
would take into consideration elements like probability and seriousness of injury along with
the additional care burden. Therefore, in this given case it needs to be seen that whether the
factory manager has acted in a reasonable way with respect to the injury caused to Shanti.
This has to be done by replacing the manager with a reasonable person.
Probability - it is evident that where there is a failure to take reasonable care in case of
the parking lot, there are chances that injury may occur to the car owners, cars or other
property. This is because it has been provided by the facts that there have been various
instances of car theft reports in relation to parking lot.
Seriousness- The seriousness of injury which may be caused to the car owners, cars or
other property is not in doubt. This is because it is event that people can be seriously injured
in terms of physical injury during a car theft.
Burden of precautions – in this case all Shanti had proposed for was to enhance a few
security measures for the par such as increased lights as it was dark. It was not much of a
burden.
Thus a reasonable person in the position of the manager would have taken extra care
as the security guard was far from people to access and the parking lot was dark in the light
of probability and seriousness of injury. The duty of care is breached.
Causation is also evidently present in relation to the “but for” test application as thief
would not have come and injure Shanti in case there were increased security measures.

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CASE ANALYSIS
Shanti has suffered physical damages as well as loss of employment and both the
damages are reasonably foreseeable and thus she can claim both under the law of negligence
from the factory.
Conclusion
The factory manager has been negligent and Shanti has to be compensated by the
factory for the losses incurred by her under negligence.

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CASE ANALYSIS
References
ACCC v Valve Corporation (No 3) [2016] FCA 106
Bolton v Stone [1951] AC 850
Competition and Consumer Act 2010
Cork v Kirby Maclean [1952] 2 ALL ER 402
Cork v Kirby Maclean [1952] 2 ALL ER 402
Donoghue v. Stevenson [1932] All ER 1
Govier v UnitingCare Community [2017] QCA 12
Norton v Hervery Motors Ltd,
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388
Paris v. Stepney Borough Council [1951] AC 36
Zuvela v Geiger [2007] WASCA 138