Case Study Assignment 2022

Running Head: CASE STUDY
CASE STUDY
Name of the Student
Name of the University
Author’s note

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Issue:
The issue in the case is whether Joe and Kamala have the right to sue in tort of
negligence.
Rules:
Negligence is the failure of the defendant to exercise his duty of care being owed towards
the plaintiff and such failure has amounted to the breach of duty and such breach has caused
harm to the plaintiff. The leading case law in the aspect of recognition of negligence is the
Donoghue vs. Stevenson [1932] UKHL 100. In the given case law, it was decided by the court
that every person owes the duty of care towards the other person and any failure in exercising
such duty shall amount to liability for damages incurred by the breach of duty. Grant v
Australian Knitting Mills [1935] UKPC 62 is the leading case law that has contributed to the
development of the theory of tort of negligence in Australia. Therefore, it can be laid down that
the tort of negligence is accountable for three essential elements (Tame v State of New South
Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35):
 Duty of care: It means that the person owes a duty of care in action or omission towards
the other person so that the other person does not incur any loss (Caparo Industries Plc v
Dickman [1990]). However the duty of car for the mental harm has been detailed and
codified in the Civil Liability Act 2002 (Wicks v State Rail Authority of New South
Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22). According
to Ben-Shahar and Porat 2016, it has been explained that the duty of care should be

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assessed in a reasonable manner as any reasonable man would have taken in that
particular situation.
 Breach of duty: It means that the duty of care as imposed upon the defendant, such duty
of care has not been exercised and hence, the plaintiff has incurred losses (Doubleday v
Kelly [2005] NSWCA 151, Court of Appeal (NSW, Australia)). Thus, breach of duty
means the failure to exercise the duty of care (Traffic Authority of NSW v
Dederer [2007] HCA 42, High Court (Australia)).
 Damages: This means that the breach of duty of care has resulted in the losses to the
plaintiff towards whom such duty of care was supposed to be exercisable by the
defendant (Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou
Najem [2009] HCA 48, High Court (Australia); Strong v Woolworths [2012] HCA 5,
(2012) 246 CLR 182, High Court (Australia)). Therefore, damages is the loss or harm
incurred by the plaintiff. The compensation awarded by the court shall be the actual costs
of the loss incurred by the defendant. There are four types of damages: Special Damages,
General Damages, Punitive Damages and Aggravated Damages (State of NSW v
Riley [2003] NSWCA 208, Court of Appeal (NSW, Australia)).
 Causation: This is an important element because the causation refers to the situation
where the court would analyze the cause of harm (Wallace v Kam [2013] HCA 19, High
Court (Australia).). This means that the harm should be the outcome of the breach of duty
of care by the plaintiff (Imbree v McNeilly [2008] HCA 40, High Court (Australia)).
In Donoghue vs. Stevenson, it was further explained by the Court that the parties to the
contract in such cases shall not only be the direct acceptor or purchaser of the product but also
the final consumer of the product including those who are not in direct contact with the seller or

4CASE STUDY
the manufacturer (DeMot 2013). This is applicable to ensure the quality of goods in cases of gifts
and others which involves the inclusion of third party claims (Cornell 2015).
Application:
In the given scenario, Joe and Kamala were married. They bought a heater. The heater
caught fire due to manufacturing defect. Therefore, applying the principles of the tort of
negligence, it can be said that the manufacturer as well as the distributors and the seller owed a
duty of care towards Joe and Kamala and such duty was breached when the quality of the
product was not checked and the defective product was released in the market for the consumers
to buy and use the product. the heater caught fire and lead to loss of property by igniting soft
furnishings, and the curtains and later, the house which got exploded due to fire. There was also
physical injury because Joe and Kamala were physically hurt and injured by the flying debris and
hence, applying the last and the most important element of negligence, “Causation”, it can be
said that the cause of such fire was found to be a manufacturing defect and not that of the
installer. The fire caused all the damages and the cause of fire was the manufacturing defected
heater. Therefore, it can be summarized that the heater company manufacturer and the distributor
and the seller owed the duty of care towards Joe and Kamala which was breached when the
heater caught fire and led to loss of property and physical injuries, and the cause of such harm
was the manufacturing defect of the heater, making the manufacturer directly liable. However,
distributor and thye seller are liable as the third party because the contract exists between the
final consumer or the initial supplier irrespective of the fact whether there was any contact
between the parties. The couple relied upon the seller and the distributor as the third parties and

5CASE STUDY
bought the product which turned out to be defective due to their negligence and carelessness to
not check such product before handing it over to the consumer.
Conclusion:
It can he concluded that Joe and Kamala have the rights to sue the manufacturer,
distributer and the seller for the tort of negligence.

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REFERENCE:
Grant v Australian Knitting Mills [1935] UKPC 62
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, High
Court (Australia); Strong v Woolworths [2012] HCA 5, (2012) 246 CLR 182, High
Court (Australia))
Ben-Shahar, O., & Porat, A. (2016). Personalizing negligence law. NYUL Rev., 91, 627.
Caparo Industries Plc v Dickman [1990]
Cornell, N. (2015). Wrongs, rights, and third parties. Philosophy & Public Affairs, 43(2), 109-
143.
De Mot, J. (2013). Comparative versus contributory negligence: A comparison of the litigation
expenditures. International Review of Law and Economics, 33, 54-61.
Donoghue vs. Stevenson [1932] UKHL 100
Doubleday v Kelly [2005] NSWCA 151, Court of Appeal (NSW, Australia)
Imbree v McNeilly [2008] HCA 40, High Court (Australia)
State of NSW v Riley [2003] NSWCA 208, Court of Appeal (NSW, Australia)
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35
Traffic Authority of NSW v Dederer [2007] HCA 42, High Court (Australia)
Wallace v Kam [2013] HCA 19, High Court (Australia)

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Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South
Wales [2010] HCA 22