Negligence and Contributory Negligence

This assignment delves into the concepts of negligence and contributory negligence within the context of tort law. It examines relevant legal cases like *Bolton v Stone* and *Wyong Shire Council v Shirt*, illustrating the principles of duty of care, breach, causation, and damages. The assignment also explores the Australian Consumer Law and its implications for businesses. Legal texts and resources from esteemed publishers like Thomson Reuters, LexisNexis, and Oxford University Press are cited to provide comprehensive legal analysis.

COMMERCIAL LAW 2
Part A
Issue
The key issue in this case revolves around the possibility of P making a case of
negligence against the player, coach, local council owning the football ground, or the football
club.
Rule
Negligence can be defined as a breach of duty of care in which one being owes another, a
responsibility of care, while doing the task, due to the possibility of such task resulting in an
injury or harm to the other party (Bailey, 2016). When a person is declared negligent, the injured
party gets the option of claiming damages. In order to show that a case of negligence is there, it
needs to be proved that there were elements of duty of care, its contravention, resulting damages,
proximity, foreseeability, direct causation and remoteness of damages (Gibson & Fraser, 2014).
For proving that an obligation of care was present and was ultimately breached, the issue
of Donoghue v Stevenson [1932] UKHL 100 is of utmost importance (Abbott, Pendlebury &
Wardman, 2007). In this particular case, the plaintiff drank the concoction in the bottle made by
the defendant while she was sitting in a cafe. As a dead snail was found inside the bottle, the beer
was contaminated, which led to the plaintiff falling sick. Upon a case of negligence being made
against the defendant, he claimed that an obligation of care was not owed. However, the
relationship of manufacturer and consumer was such where the parties were in proximity and the
act of one impacted another. Due to these reasons, the plaintiff was successful in making a case

COMMERCIAL LAW 3
of negligence against the defendant, as the contaminated drink was a breach of duty, which was
deemed as reasonably foreseeable by the court (Latimer, 2012).
The duty of care is based on the proximity of parties. In sports tournaments, the duty of
care is raised between the competitors to spectators, competitors to competitors, and even coach
to competitors. The damage cannot be too remote and has to be substantial for a claim of
negligence to be upheld (Martin & Lancer, 2013). For awarding the damages, the test presented
through Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 has to be applied, where it
has to be proved that the injury would not have taken place, save for the breach of duty of care
by the defendant (Strong & Williams, 2011).
The foreseeability of damages plays a key role to prove the negligence. In this regard, the
case of Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078, proves to be of help. Stone was
stuck by a cricket ball while she was outside her home, and sued the cricked club for negligence.
The court held that the risk of harm to Stone was not reasonably foreseeable and so a breach of
duty did not take place (E-Law Resources, 2017). The competitors in sports owe a duty of care
towards the spectators. In Cleghorn v Oldham (1927) 43 TLR 465, the court held that the
plaintiff had not assumed the risk of accident as she as just a spectator. The occupiers and
organizers of the sport events also owe an obligation of care to the spectators. This was
established in Langham v Connell Point Rovers Soccer Club [2005] NSWCA 461, where the
damages of $233,758 were awarded to the spectator for tripping over the rope in car parking
(Davies, 2012).
Vicarious liability is a crucial theory due to which the employer is made accountable for
the work of the employee (Giliker, 2010). In the case of McCracken v Melbourne Storm [2005]

COMMERCIAL LAW 4
NSWCA 107, the club was made accountable for the injuries sustained by the player due to the
other player being indulged in illegal tackle (Davies, 2012).
Application
In the given case study, in order to make the player, coach, local council owning the
football ground, or the football club liable, the first step is to show that a case of negligence was
present. The obligation of care was owed in this case, on the basis of Donoghue v Stevenson due
to the relationship and the proximity of the parties. P was in proximity to the four defendants due
to which, the actions of these four could easily impact P. The glasses of P broke, which can be
claimed as an economic loss. So, he can claim damages for the injury he sustained due to the
impact of the ball on his face ad due to his glasses being broken. Applying Barnett v Chelsea &
Kensington Hospital, P’s glasses would not have been broken if the proper care had been taken
by the defendants.
The player can raise the issue that he could not have reasonably foreseen that P would be
hit, thus resulting in an obligation of care not being owed on the basis of Bolton v. Stone. It was
not his duty to install the barricades which would have protected P and he could never foresee P
being harmed in this way. Hence, the player cannot be made liable. The same would be the case
for the coach and the club. Had the player been held liable, the club could have been held guilty
owing to the principle of vicarious liability. Though, as this is not the case, the club cannot be
made liable. And the coach never owed an obligation of care to spectator due to the lack of
foreseeability.
In this case, the local council who owed the football club can be made liable for the
negligence on their part in installing necessary safeguards to protect the consumers from being

COMMERCIAL LAW 5
hurt. Cleghorn v Oldham makes it very clear that by being the spectator, P had not assumed the
risk of injury. And on the basis of Langham v Connell Point Rovers Soccer Club, the local
council would have to compensate P for his losses.
Conclusion
To conclude, P would only be able to make a thriving claim against the local council and
would fail in his claims against the player, the coach and the football club due to lack of
reasonable foreseeability.
Part B
(1)
Issue
Whether a case of negligence can be made by Ann and/ Carol against Bruce, or not?
Rule
As has been stated earlier, in order to prove that negligence is present, certain elements
have to be proved. The threefold test specified under the case of Caparo Industries plc v
Dickman [1990] 2 AC 605, helps in defining if a duty of care was present. The three
requirements, based on this test, to prove negligence, include the proximity between the parties,
the reasonable risk of harm and the justness for imposing the penalties (Lunney & Oliphant,
2013).

COMMERCIAL LAW 6
For claiming the damages under the tort of negligence, it is crucial to show that the
damages were not too remote. The remoteness in the damages resulted in the plaintiff not being
awarded any damages as remedy in Overseas Tankship (UK) Ltd v Morts Dock and Engineering
Co Ltd [1961] UKPC 2 (H2O, 2016). A key point which helps in determining the foreseeability
of injury’s risk is the view of the prudent person. Wyong Shire Council v Shirt (1980) 146 CLR
40 provided that the view of a sensible person is to be taken for deciding if a particular loss was
foreseeable (Swarb, 2015). The damages for the injury and loss can be claimed, resulting from
the negligence, which includes the economic loss and the mental distress caused (Legal Services
Commission, 2016).
Application
In the given case study, Bruce was the owner of the lawnmower which exploded. Due to
these reasons, Ann was physically injured and the files of Carol were destroyed. In order to hold
Bruce liable it has to be shown that he owed a duty of care towards Ann and Carol. Bruce was
working in proximity with the two and his actions had the possibility of impacting both them;
hence, an obligation of care was owed by Bruce. The foreseeability is the key issue of this case.
Wyong Shire Council v Shirt necessitates the risk of harm to be foreseeable. A reasonable person
would not have been able to foresee that the lawnmower would explode due to faulty fuel tank.
So, the risk of harm was not foreseeable in this case. Also, this would lead to the threefold test
given in Caparo Industries plc v Dickman not being met. Even though the damages were
substantial on the basis of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd,
the lack of foreseeability would beat the case of negligence against Bruce.

COMMERCIAL LAW 7
Conclusion
Hence, a case of negligence would not be successful by Ann and/ Carol against Bruce
owing to lack of foreseeability.
(2)
Issue
Whether Hank’s, Distributor and Mower can be held liable for negligence by Ann, Bruce
and Carol, or not?
Rule
Contributory negligence is main defences cited in the cases of negligence. This concept
highlights that the plaintiff adds towards the harm which they have to bear owing to the
negligence undertaken by the defendant. When such is found, the court reduces the damages
awarded to the plaintiff by their magnitude of contribution towards the injury (Dongen, 2014).
Application
In order to hold the three defendants liable, the first step is to establish that an obligation
of care was present. The case of Donoghue v Stevenson makes it clear that a manufacturer owes
an obligation of care towards its consumers. Thus, a duty of care is owed by the three defendants
towards its consumers, which was Bruce. On the basis of Caparo Industries plc v Dickman,
Bruce and the three defendants were in proximity due to the consumer manufacturer relationship.
Though, the defendants were not in proximity to Ann or Carol as they were not the consumers.
Further, a risk of harm could be foreseen for Bruce as he was the consumer and faulty machinery

COMMERCIAL LAW 8
has the chances of the consumer being injured on the basis of Donoghue v Stevenson. But the
defendants could not have reasonably foreseen if the other two people would have been injured
and this would be based on the case of Bolton v Stone. Lastly, imposing penalties would be
justified in this case due to the substantial injury received by the defendant.
A defence of contributory negligence would not stand in this case. This is because none
of the plaintiffs did anything to contribute towards their injuries.
Conclusion
Hence, Hank’s, Distributor and Mower can be held liable for negligence only by Bruce
and not by Ann and Carol, owing to the lack of proximity between them and the defendants.
(3)
Issue
Whether Ann, Bruce or Carol have any rights under Part 3-5 of the ACL against Hank’s,
Distributors Ltd or Mower Ltd or not?
Rule
The provisions of Australian Consumer Law, or ACL, are covered under schedule 2 of
the Competition and Consumer Act 2010 (Cth). The purpose of this act is ensuring that healthy
competition is present and the consumers of the nation are properly protected (Corones, 2012).
Through this act, the protection to the consumers is given regarding the false representations,
unfair contractual term, unconscionable conduct and misleading or deceptive conduct. Any
breach of the provisions of ACL, attracts the penalties covered under it (Coorey, 2015).

COMMERCIAL LAW 9
For making a case against the manufacturer pursuant to provisions of ACL, it has to be
shown that the person was a manufacturer as per the criteria laid down in ACL’s section 7. This
section provides that any individual, who grows, produces, extracts, assembles or processes the
goods, along with the other requirements covered under this section would be deemed as a
manufacturer. The conditions for supplier are covered under section 2 of ACL. To make a claim
under Part 3-5 of the ACL, the person does not have to be proved as a consumer pursuant to
section 3 of this act, where monetary limits have been prescribed along with the purpose of use
of product. Section 9 requires that a claim under Part 3-5 of the ACL can only be made when the
product contains a safety defect (Austlii, 2017).
Part 3-5 relates to the liabilities of the manufacturer in such cases where the product
develops safety defects when the particular product was manufactured by the manufacturer. The
customers have been granted certain rights based against the manufacturer. Section 138 provides
that it is the liability of the manufacturer when a loss or harm is caused to some other person
owing to the safety defect in the product and which results in injury to the user. The liability for
death of thee injured party is also covered under this section. Section 193 imposes the similar
liability for the loss of one party which results from another party being injured, or due to the
death of another party. Section 140 imposes the penalty on the manufacturer for the damage or
destruction of goods, due to safety defect in the manufactured product. And section 141 imposes
the penalties on the manufacturer owing to the damages to fixtures, land or building due to the
safety defect (Austlii, 2017).
In Glendale Chemical Products Pty Ltd v Australian Competition & Consumer
Commission & Anor [1998] FCA 1571, the applicability of this part led to the defendant being
held liable for the plaintiff’s loss. This case was raised after boiling water was dispensed through

COMMERCIAL LAW 10
the slower pipe, after which the dry Glendale Caustic Soda followed. The plaintiff sustained
burns to his eyes and face and sued the defendant as he had repackaged the product. As
repackaging made him the manufacturer, the defendant was made liable (Jade, 2017).
Application
In the given case study, Ann, Bruce and Carol, all three can make a claim against the
defendants. This is due to the fact that they do not have to be proved as consumer to make a
claim under Part 3-5. The defendants were assemblers, developers and manufactures of the
product, thus making them manufacturer as per the criteria laid down in ACL’s section 7. So, for
the physical injury sustained by Ann and Bruce, they can make a claim pursuant to section 138.
Based on Glendale Chemical Products Pty Ltd v Australian Competition & Consumer
Commission & Anor, they would be successful in their claims. For the damage to the files of
Carol, she can make a claim under section 140. And Bruce can also make a claim under section
141 for the damage to his home.
Conclusion
Thus, Ann, Bruce and Carol can successfully make a claim, under Part 3-5 of the ACL,
against Hank’s, Distributors Ltd or Mower Ltd.
(4)
Issue
Whether Hank’s, Distributors Ltd or Mower Ltd have any possible defences in this case,
or not?

COMMERCIAL LAW 11
Rule
The ACL is an effective legislation and it not only safeguards the consumers, but also the
manufacturers. The defences which can be cited by the manufacturers for the claims made
against them are covered under section 142. This section requires the manufacturers to adhere to
the standards. The manufacturer can, pursuant to Section 142(a)(iii) show that a defect was not
present when the product was supplied. They can show that the defect could not have been
determined due to the available scientific or technical knowledge, pursuant to section 142(c),
when the product was supplied. And based on section 142(d), it has to be shown by the
manufacturer that the components of the finished goods had defect due to the omission or the
acts undertaken by the manufacturer of the finished good, or was due to thee carelessness in
assembly of the product (Austlii, 2017).
Application
The three defendants can claim a defence under section 142(a)(iii) and show that the
defect was not present at the time of supply and also show that the standard was met. They can
cite a defence under section 142(c) and blame it upon technology. Lastly, each party can impose
blame on another and state that it was the fault of the other party, pursuant to section 142(d).
Though, the last defence is most likely to fail.
Conclusion
Hence, Hank’s, Distributors Ltd or Mower Ltd does have possible defences in this case,
pursuant to section 142 of ACL.

COMMERCIAL LAW 12

COMMERCIAL LAW 13
References
Abbott, K., Pendlebury, N., & Wardman, K. (2007). Business Law (8th ed.). London: Thomson.
Austlii. (2017). Competition and Consumer Act 2010 - Schedule 2. Retrieved from:
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html
Coorey, A. (2015). Australian Consumer Law. London, United Kingdom: LexisNexis
Butterworths.
Corones, S.G. (2012). The Australian Consumer Law. New South Wales: Lawbook Company.
Davies, C. (2012). Negligence and Risk Management and Sport. Retrieved from:
https://researchonline.jcu.edu.au/25604/1/25604_Davies_2012.pdf
Dongen, E.V. (2014). Contributory Negligence: A Historical and Comparative Study. Boston:
Brill Nijhoff.
E-Law Resources. (2017). Bolton v Stone [1951] AC 850 House of Lords. Retrieved from:
http://www.e-lawresources.co.uk/Bolton-v-Stone.php
Gibson, A., & Fraser, D. (2014). Business Law 2014 (8th ed.). Melbourne: Pearson Education
Australia.
Giliker, P. (2010). Vicarious Liability in Tort: A Comparative Perspective. Cambridge:
Cambridge University Press.
H2O. (2016). Wagon Mound (No. 1) -- "The Oil in the Wharf Case". [Online] Retrieved from:
https://h2o.law.harvard.edu/collages/4919

COMMERCIAL LAW 14
Jade. (2017). Glendale Chemical Products Pty Ltd v Australian Competition & Consumer
Commission & Anor [1998] FCA 1571; 90 FCR 40. Retrieved from: https://jade.io/j/?
a=outline&id=116054
Latimer, P. (2012). Australian Business Law 2012 (31st ed.). Sydney, NSW: CCH Australia
Limited.
Legal Services Commission. (2016). Negligence. Retrieved from:
http://www.lawhandbook.sa.gov.au/ch01s05.php
Lunney, M., & Oliphant, K. (2013). Tort Law: Text and Materials (5th ed.). Oxford: Oxford
University Press.
Martin, J., & Lancer, D. (2013). AQA Law for AS Fifth Edition (5th ed.). Oxon: Hachette UK.
Strong, S.I., & Williams, L. (2011). Complete Tort Law: Text, Cases, & Materials (2nd ed.).
Oxford: Oxford University Press.
Swarb. (2015). Wyong Shire Council v Shirt; 1 May 1980. Retrieved from:
http://swarb.co.uk/wyong-shire-council-v-shirt-1-may-1980/
Swarb. (2016). Bolton v Stone: HL 10 May 1951. Retrieved from: http://swarb.co.uk/bolton-v-
stone-hl-10-may-1951/