Tort of Negligence and Australian Consumer Law: A Case Study

Running head: CASE STUDY ASSIGNMENT
CASE STUDY ASSIGNMENT
Name of the Student:
Name of the University:
Author Note:

1CASE STUDY ASSIGNMENT
Answer 1:
Issue:
The issue to be analyzed in the present assignment is the rights available to Priya and
Rahul when they sue for tort of negligence.
Rules:
The tort of negligence involves the act of causing harm as result of negligent act of a
party who does not act in a reasonable or careful manner. The main doctrine of negligence
incorporates the failure of a person to act in a reasonable manner after giving due consideration
to the potential harm that can be inflicted upon any other person or things and such harm is
reasonably foreseen by a reasonable man.
In order to claim for damages for any act of negligence, the victim or claimant in that
particular case must prove four conditions that were provided in the remarkable case of
Donoghue v Stevenson [1932] AC 562. The four conditions are that the alleged defendant of the
case has a duty of care, that the defendant has infringed with such duty of care, that the breach or
infringement of the duty of care caused loss or damage to the plaintiff and that such damage or
loss was not too remote.
The duty of care of the defendant is to be determined by performing a legal test known as
the neighbor test given in the case of Donoghue v Stevenson [1932] AC 562. The test requires
two conditions to be proved in order to establish the duty of care of the defendant. The
conditions are reasonable foreseeability of the harm and the existence of relation of proximity
between the defendant and claimant in the case.

2CASE STUDY ASSIGNMENT
In Australia, while deciding the case of Grant v Australian Knitting Mills [1935] UKPC
62, [1936] AC 85, the decision of Donoghue v Stevenson was used as a precedent. It is a leading
case on the basis of which the law of negligence evolved in Australia. The duty of care of the
defendant is for the protection against physical as well as mental or psychiatric harm. But a very
strict approach is imposed in case of damages causing psychiatric injury of the victim as held in
the Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35,
(2002) 211 CLR 317, High Court (Australia) case. in this type of damages, the court considered
two types of victims, the primary who was involved in the act causing such psychiatric damage
and secondary victim who has witnessed the happening of the incident that caused mental stress
on him. In both the types, the claimants have to prove four conditions as given by the House of
the Lords in the case of Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310.
They were that there must bond of love or affection, that he has witnessed the happening of the
incident in true senses, that there lies a connection of the event and its result and that the injury is
an effect of a shocking incident. To prove the duty of care, the plaintiff is required to construe
the provisions enumerated in the section 27 to section 33 of the Civil Liability Act.
The second condition to be fulfilled by the victim or the claimant is that the defendant has
breached the duty of care to the claimant and this can be proved by applying the objective test as
given in the case of Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 (1 May
1980). In this objective test, two factors are required to be satisfied; they are the causation of the
damage and the remoteness of the damage. In the Civil Liability Act, section 5B states that the
defendant is said to breach his due of care to the claimant if he had not taken any precaution to
prevent the risk of harm due to negligence.