Case Study Assignment on Tort of Negligence and Australian Consumer Law

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 involved in the case is what rights are available to Priya and Rahul if they
institute a suit of tort of negligence.
Rules:
The tort of negligence is a failure of a party to take reasonable care in appropriate
situations. The negligence tort includes the causing of harm due to failure to act reasonably or
due to an act of carelessness. The main concept of negligence includes that a person failed to
exercise reasonable care in his actions by considering potential harm caused to any person or
property that can be foreseen by any other person reasonably.
However, in order to prove a claim of negligence, the claimant must satisfy few
conditions; that the defendant has a duty of care, that the defendant has breached such duty, that
the breach of such duty caused damage or loss and that the damage was not very remote. These
were given in the case of Donoghue v Stevenson [1932] AC 562.
Firstly, the duty of care of the defendant towards the plaintiff is to be determined. the
legal responsibility of a defendant to the plaintiff depends on the failure to perform such
responsibility as per law intended to the plaintiff as the beneficiary. The legal test to be
performed to determine whether the defendant has a duty of care is the neighbor test held in the
Donoghue v Stevenson case. This test requires two criteria to be fulfilled to establish the duty of
care which are reasonable foresight of harm and presence of proximity relationship between the
plaintiff and the defendant.

2CASE STUDY ASSIGNMENT
In Australia, the case of Donoghue v Stevenson is used as a precedent in the case of
Grant v Australian Knitting Mills [1935] UKPC 62, [1936] AC 85. This is a landmark case that
helped in the evolution of negligence law in Australia. The duty of care can be owed for physical
injury or even mental or psychiatric harm.
However, a restrictive approach is applied in case of damages from negligently inflicted
psychiatric injury as seen in the case of Tame v State of New South Wales; Annetts v Australian
Stations Pty Ltd [2002] HCA 35, (2002) 211 CLR 317, High Court (Australia).
However, the court has identified two categories of victims; the primary and secondary in
case of tort causing psychiatric injury. The primary victims are those who are immediately or
actually as a participant as laid down in case of Alcock & ors v Chief Constable of South
Yorkshire [1992] AC 310 by the House of Lords. On the other hand, the secondary victims are
those persons who are present in the physical zone of danger but have witnessed the horrible
events. The claimant has to fulfill four conditions laid down in the Alcock case such that there is
a close tie of affection and love, that he has visualized the event with his own senses, that there
lies a close connection of the event or it is the immediate outcome and finally the psychiatric
injury has occurred out of the shocking event.
In order to establish a duty of care, the plaintiff is needed to satisfy the criteria given in
sections 27 to 33 of the said act.
The second criterion to be satisfied by the claimant is that the defendant had breached the
duty entrusted to him against the claimant by following the objective test. This was provided in
the case of Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 (1 May 1980) by
the High Court (Australia). By applying this test, two conditions are to be proved that are

3CASE STUDY ASSIGNMENT
causation and the remoteness of the damage. Section 5B of the Civil Liability Act provides that a
person, the defendant has breached his duty of care if he negligently did not take any precautions
against a risk of harm.
The third condition is causation which is determined by the application of the ‘but for’
test as seen in the case of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428. This is
also given in the sections 5C and 5D of the Civil Liability Act 2005 (NSW). Another case that
provides for this is Strong v Woolworths [2012] HCA 5, (2012) 246 CLR 182, High Court
(Australia).
The final factor to be considered is the remoteness of damage as held in the Wagon
Mound no 1 [1961] AC 388 case. The concept of remoteness was also tested in the case of
Kavanagh v Akhtar [1998] NSWSC 779, Supreme Court (NSW, Australia).
Section 5S in Part 1B of the act provides for the provision related to the duty of care for
mental harm and section 5T gives the liability for pecuniary loss for consequential mental harm.
Application:
In the present case, it is seen that the claimants are Priya and Rahul who are going to sue
Baby’s R Us for the tort of negligence. On January 2019, Priya gave birth to a boy named Aaru.
When she was in hospital, her husband went to the retail store known as Baby’s R Us and
consulted the staff of the store to suggest a good baby cot for their newborn baby.
The sales assistant of the store named William suggested two cots for the baby boy; the
Lullaby Wonder and the Sleep Sound. According to the cot named as Lullaby Wonder is very
solid and once fixed, it has to be kept as it is and cannot be unassembled. On the other hand, he