Australian Consumer Law: Case Study

Running Head: Case Study
AUSTRALIAN CONSUMER LAW
Name of the Student
Name of the University
Author’s Note

CASE STUDY1
Issues:
The first issue in the case is whether Joe and Kamala have any rights in the suit for
negligence.
The second issue in the case is whether Joe and Kamala have any claim to sue. If yes,
then against whom and under which legal provision.
Rules:
Tort of Negligence is the tort which is exercisable when the person breaches the duty of
care owed to him towards another party and that party sustains injury or harm due to the duty
breached by the party. According to Feinman 2010, the intricate concept of the theory of
negligence is that the person owes the duty of care. Such duty of care shall be reasonable in
nature and in accordance to the reasonability of a common man in that situation.
There are four elements to the tort of negligence (Owen 2007). They are:
 Duty: every person has a duty of care towards the other and such duty of care shall be
reasonable in nature.
 Breach: the duty of care as owed by the party is breached by an act or omitting an act.
 Damages: such breach of duty of care as breached by the party has resulted in the
damages or the injury to the other party towards whom such reasonable care was
exercisable.
 Causation: this is an important element meaning that the cause of action for negligence
should be the result of the act acted or omitted by the party. This means that the cause of
damages or injury should be the foreseen by the party and the injury or damage should be
the outcome of the negligence of the party (breach of duty of care).

CASE STUDY2
The leading case law establishing the ground for negligence as an actionable civil wrong is the
Donoghue vs Stevenson [1932] AC 532. The establishment of the duty of care as psychiatric as
well as the physical harm has been laid down in the decision of Tame vs. State of New South
Wales [2002] HCA 35. However the assessment of mental harm has now been codified in the
Civil Liability Act 2002 in the State of New South Wales and the same has been applied in
Sheehan vs. State Rail Authority of New South Wales [2010] HCA 22. In order to establish that
the duty of care was owed by the party, and the same has been breached, it has to be established
that such duty shall be expected to be owed by any reasonable man or person in that particular
circumstances, and the party failed to take such care while discharging his or her duty. The
burden of proof is upon the plaintiff to prove that the defendant owed such care towards him or
her and such burden of proof has been recognized and established in Doubleday vs. Kelly [2005]
NSWCA 151. However, section 21 of the Civil Liability Act in Queensland has provided for the
statutory provision for the test for the determination of both subjective and objective elements of
negligence. According to Thornton, gross negligence shall also be assessed on the basis of the
intention or the malice or cause harm to the other party. The gravity of the negligence shall be
assessed on the gravity of the risk owed by the person towards the other and the injury or the
damage caused to such person due to the breach of duty by the other party.
The damage caused to the party could be in any form. It has been held in Sharman vs.
Evans [1977] HCA 8, it has been laid down that in such situations of negligence, the nature of
harm caused could be anything from being physical or economical or reputational. However, the
reputation dam ages are discussed and dealt under the provisions of Defamation which holds
both civil as well as the criminal liability. Further, in cases where the plaintiff has suffered the
emotional distress, it shall be a. actionable offense only in cases where the party has also

CASE STUDY3
incurred pecuniary loss in addition to the emotion loss. Emotional loss as an independent solo
loss shall not be actionable in the court of law. the eggshell rule of tort extends it applicability to
the full costs of damage caused even if such damage is due to unforeseen events and the same
was maintained in the case of Kavanagh vs. Akhtar [1988] NSWSC 779.
Australian Consumer Law: Schedule 2 to the Competition and Consumer protection Act
2010 stands as a uniform federal legislation applicable in the whole Commonwealth of Australia
including all its States and Territories with respect to the matters of the Consumer Protection.
Such portion of the Act is codified and identified as the Australian Consumer Law.
 PART IVA deals with the unconscionable product: this concept is the development of the
court of equity. It has been believed that the unconscionable conduct is when a party is at
a special disadvantage to deal with the other party because of various other factors like
illness, financial needs and inexperience. It is done so to protect his ability to self interest
and the other party takes unconscientiously advantage of the opportunity placed iin the
hands of such party. It was thus, laid down in Commercial Bank of Australia vs. Amadio
(1983) 151 CLR 447. However, according to Tucker 2003, this approach has been
established to be as a narrow approach. The wider approach to the concept can be
determined as the encompassing of the doctrine of unconscionability along with the
doctrine of duress , vulnerability, fair dealing, undue influence and equitable estoppel. In
Commonwealth vs. Verwayen, it has been established that the doctrine of estoppel by
conduct id undermined by the establishment of good conscience. Herein, the person is
affected by the way of his or her own mistakes.
 PART VA relates to the liability of manufacturers and importers for defective goods: this
concept is a development of the provisions of the industrial law with respect to the