Tort of Negligence and Product Liability in Australian Consumer Law

Running head: BUSINESS LAW
Business Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Introduction....................................................................................................................2
Issue 1.............................................................................................................................2
Issue 2.............................................................................................................................5
An overall Conclusion....................................................................................................9
Bibliography.................................................................................................................10

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Introduction
With the advent of Consumer reforms in Australia, the consumers have been
prioritized by the Consumer Law by protecting them pertaining to the purchases they make.
A consumer is not only protected from the defection of the manufacturer, supplier and retailer
but also shielded from being deceived by unfair contract terms by way of the Australia
Consumer Law. This paper strives to discuss about a tort in negligence affecting the
aggrieved consumers as well as about the provisions pertaining to product liability in
Australia by studying the Australian Consumer Law (ACL) enumerated under the
Competition and Consumer Act 2001 (Cth).
Issue 1
It needs to be determined as to whether Priya and Rahul will be able to sue in tort of
negligence.
Rule
A tort in negligence involves a duty of care that a person has towards another who
have eventually breached such duty, giving rise to an injury or loss. As held in Donoghue v
Stevenson, regarding establishing a tort in negligence, an aggrieved party or the claimant
needs to establish that1:
a) the defendant had a duty of care,
b) the defendant have breach such duty,
c) such breach has caused certain damage,
d) such damage was foreseeable, and
1 Donoghue v Stevenson [1932] AC 562

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e) the proximity of the defendant with the plaintiff makes him liable to hold a duty of care
and the chance to protect the plaintiff from any probable damage that may arise due to the
breach of such duty of care.
The aggrieved party needs to establish that he had a proximate relation with the
defendant which gave him the duty to take care of the aggrieved party. To prove that the
defendant had a duty of care towards the plaintiff, it must be established that they had a
proximate relationship between them, like manufacturer/retailer and consumer. A
manufacturer is having a duty of care to provide the best possible product to the plaintiff and
to ensure that the product is free from any defect, as otherwise the manufacturer is likely to
breach his duty of care. The proximity between the plaintiff and the defendant is an important
factor that establishes the fact that the defendant could foresee the probable danger or risk
that is causing injury or loss to the plaintiff. In Caparo Industries plc v Dickman, the three-
stage test conveyed by the court had held that a plaintiff is required to establish a proximity
between himself and the defendant thereby proving his duty of care and must also establish
that the defendant had an opportunity to foresee the risk that caused the injury to the
plaintiff2.
After establishing the existence of duty of care, the plaintiff would be required to
establish that such duty of care has been breached by the defendant by not executing the
duty that he was supposed to. In the case of Hall v Brooklands Auto-Racing Club, the phrase
‘reasonable man’ was discussed by the court where it was said that a breach of duty is
referred to an omission to carry out a responsibility that any reasonable man of ordinary
prudence would have done it to protect another from sustaining loss or injury3.
The breach of such duty must have caused a damage to the plaintiff who have
sustained a loss or injury; it is known as the Causation. In Alcock v chief constable of South
2 Caparo Industries plc v Dickman (1990), 2 AC 605
3 Hall v Brooklands Auto-Racing Club [1933] 1 KB 205