(Doc) Assignment on Commercial Law
9 Pages2866 Words200 Views
Added on 2021-06-16
(Doc) Assignment on Commercial Law
Added on 2021-06-16
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Commercial Law1Commercial Law
Commercial Law2Answer 1Laws related to the product liability in the Australia are considered as the mixture of the common law and legislation. In case, any person suffered injury or any other loss or damage has right to file suit for compensation on the grounds stated below:Person can file case under common law tort of negligence which is based on the fault.Under contract law.Under contravention of the provisions of the Australian Consumer Law.Generally, this rule is accepted by the law that manufacturer of the product owes duty of care towards the ultimate consumer of the product, and also obligated to ensure safety of the useragainst the foreseeable risk of injury while using the product. It is not allowed to retailers, importers, and distributors to test the product which is supplied by the manufacturer in the sealedcontainers, and these containers usually opened by the ultimate consumers only. However, in these situations retailer of the products still obligated towards the consumer to safeguard themselves against the foreseeable injuries. It must be noted that, in case any party related to the supply chain modified the product such as labeling, packaging, etc. then such party will also be held liable under tort of negligence towards the consumers in context of those changes. In case, Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139, which was a Scottish dispute, considered as famous case in English law which mainly shape the law of tort and doctrine of negligence. In this case, the central issue decided by Court was “whether any duty of care was owned by manufacturer towards the plaintiff that was Mrs. Donoghue in case when no contractual relations were established”. This case was mainly considered as the test case through which liability of the manufacturer will determine in context of damage caused from the product. This case was important because scope of the tort of negligence was very narrow and wasapplicable only if there was some established contractual relationship between the parties. In former case law Mullen v AG Barr & Co Ltd 1929 S.C. 461, 1929 S.L.T. 341 which involves two children and floating mice, Court stated that in absence of the contract
Commercial Law3manufacturer does not own any duty of care towards the consumer while offering the product forsale, except in following situations:Manufacturer possessed the knowledge that product was dangerous in nature because of the presence of any defect and this information was concealed from the consumer and this is considered as the fraud, orThe product was danger in nature and manufacturer failed to inform about the same to theconsumer.However, in case of Mrs. Donoghue, Court does not follow the opinions of the Judge in case of Mullar, and leading judgment was given by the Lord Atkin with the 3:2 majority. Decision of this case introduces various components. First, Court held that negligence was different and separate in tort. Second, contractual relationship was not necessary for establishing the duty of care between the parties, and third, manufacturer of the product owes duty of care towards the ultimate consumer who was using the product and in this context, Court also develops neighbor principle.It must be noted that this rule, that person must love their neighbor becomes the law, and this rule stated that a person must not cause any injury or damage to their neighbor. Person must take reasonable care by avoiding any act or omission which a person reasonable foresees would cause injury or damage to the neighbor. In this context, neighbor was the person who was closelyand directly affected by the act or omission of the person in question. In this case, Mrs. Donoghue proved her claims and manufacturer of the ginger bottle will be held liable. It can be said that, this case was not the first case which attempt to abolish the dependence of negligence under tort law on the contractual obligation between the parties. This case mainly established all these rules which were stated below:Court held that negligence was different and separate in tort.Contractual relationship was not necessary for establishing the duty of care between the parties. Manufacturer of the product owes duty of care towards the ultimate consumer who was using the product.
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