Commercial Law Issues - Assignment

Running Head: COMMERCIAL LAW
COMMERCIAL LAW
Name of the Student:
Name of the University:
Author Note

1COMMERCIAL LAW
Answer 1
Issue:
In the given circumstances, the issue that has been identified is whether the Thermomix can be
held liable for negligence.
Rule:
The common law provisions related to negligence had been first established in the case of
Donoghue v Stevenson [1932] A.C. 562. In this case it had been held by the court that a person
must not commit or omit to do any act which causes an injury or loss to the neighbor of such
person. The judgment of this case opened the doors to claimants a wide range of actions that can
be taken against for negligence of the plaintiffs. In this case it had been held that a person has a
duty of care to take reasonable steps to prevent any injury or loss likely to be sustained by
anyone who is affected by the actions of such individuals. In this case the essential elements
which are required to be present for claiming damages due to negligence of the defendant had
been laid down:
 Duty of care on the part of the defendant to prevent any damage or injury likely to be
sustained by the claimant
 Breach of duty of care by the defendant
 Causation of damage sustained by the claimant
 Remoteness of damage
Duty of care- The duty of care on the part of the defendant is the first important essential in
establishing a claim of negligence. For the purpose of assessing whether a defendant owed a duty

2COMMERCIAL LAW
of care to the plaintiff the courts generally apply the Caparo test as established in the case of
Caparo Industries pIc v Dickman [1990] 2 AC 605. Apart from the common law provisions the
law of negligence, is also governed by the statute Wrongs Act 1958 .
Breach of Duty of Care: It can be stated that the breach of duty of care on the part of the
defendant is the next important essential element which has to be proved by the claimant for
establishing a successful claim of negligence. To assess whether the defendant had breached his
duty of care the courts generally apply the objective test as established in the case of Vaughan v
Menlove (1837) 3 Bing. N.C. 467. This test assesses whether any reasonable person acting in
the same circumstances of the defendant would have taken additional steps to prevent any
damage likely to be sustained by the plaintiff. However, in certain circumstances it is not
necessary to prove that the defendant had been negligent in his actions or omissions due to which
injuries are sustained by the plaintiff. Examples of such a principle in which the facts of the case
speak for itself is res ipsa loquitor (Luntz et al. , 2017).
Causation: For a plaintiff to bring any claims of negligence against the defendant, the claimant
must establish that he sustained the damages or injuries due to the negligent actions of the
defendant. The courts generally apply the ‘but for’ test as established in the Barnett v Chelsea
& Kensington Hospital [1969] 1 QB 428. The ‘but for’ test assess whether the plaintiff would
have sustained the injuries of damages had it not been for the negligent actions or omissions of
the defendant. It has been further provided in section 51 of the Wrongs Act 1958 that for
establishing any successful claims of negligence against the defendant, it is required for the
plaintiff to prove every fact that attributed to the causation of the injury.

3COMMERCIAL LAW
Remoteness of damage: For establishing claims of Negligence against the defendant, it is
essential for the plaintiff to prove that the damage sustained by him was not too remote. The
Courts generally apply the Wagon Mound test as established in the The Wagon Mound no 1
[1961] AC 388. In this case it had been held that that the defendant is only liable for any damage
sustained by the plaintiff if the damage was of a foreseeable kind. A plaintiff cannot claim not
any damages from the defendant if the loss or damage sustained by the plaintiff resulted from an
inherent risk. However, it has been provided in the Wrongs Act that in case of physical injuries, a
person can only claim monetary damages if the burn injuries sustained is more than 5% as
provided in the Medical Association Guidelines.
Application
Thus by analyzing the facts of the case it is evident, that the owners of the Kitchen model
sustained burn injuries due to the defect existing in the kitchen appliance which had been sold by
Thermonix appliance. By the application of the decision of the Donoghue v Stevenson, it can be
stated that manufacturers have a duty of care to the customers. It can be stated that by the
application of the Caparo test it can be stated that Thermonix Appliances had a duty of care to
the customers. By the application of the Vaughan v Menlove case it can be stated they breached
their duty of care by not taking adequate precautions to ensure the safety of the customers. Any
reasonable person in this scenario would have taken adequate steps to ensure the safety of the
customers. Further by the application of the ‘but for’ test as established in the Barnett v Chelsea
& Kensington Hospital, it can be stated that the plaintiff had sustained by the negligent actions or
omissions of the defendant. The damage sustained by the customers was not also too remote too
the defendant. This can be substantiated by the application of the test as established in the
Wagon mound case. Thus in this case it is clearly evident that the manufacturer is liable to pay