Commercial law - Sample Assignment
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Added on 2021-05-31
Commercial law - Sample Assignment
Added on 2021-05-31
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Commercial Law1Commercial Law
Commercial Law2Answer 1:Tort of Negligence is defined as the legal action which is taken by the innocent parties against the party who owns duty of care towards that innocent party. It must be noted that, this cause of action can only be taken when other party in under obligation to take reasonable care and fails to take reasonable care because of which innocent party face damages and injury. Threeessential factors are stated below, and all these factors must be proved by the plaintiff to take action under this cause of action:Duty to take care- the most important element under this cause of action is the duty to take care. Defendant must own duty to take care towards the plaintiff and this duty must be existed at the time when negligence is committed by the defendant. Obligation of the party to comply with the standard care is the obligation which is recognized by the law and the main purpose of this obligation is to prevent the harm caused to the plaintiff. The most important element of this obligation is foreseeability which means this obligation is emerged in those circumstances when damage caused to the plaintiff is foreseeable in nature if defendant fails to comply with the standard care. Another important element of duty of care is the closeness between the parties, which means plaintiff and defendant must be sufficiently close with each other (Bolton v Stone [1951] AC 850). If two of these elements are present then only defendant owns duty to take reasonable care towards the plaintiff. Civil Liability Act 1936 recognized the concept of the negligence under part 6 of the Act, and section 31 of this Act defines the provisionin context of the duty to take care. Breach of duty- another important factor under this cause of action is the breach of duty,which means defendant who owns duty to take reasonable care towards the plaintiff must breach such duty. In other words, defendant does not complied with the required standard of care. It must be noted that, for proving that defendant beach the duty to take care; court evaluates the standard of care which is expected from any reasonable person in the similar situation (ALRC, 2018). Damages- last factor under this cause of action is the damages or injury caused to the plaintiff because defendant breach duty of care (Jaensch v Coffey (1984) 155 CLR 549).
Commercial Law3As per the general rule, in case any product contains any defect related to the safety, then in such case person who manufactured the product is held liable towards the ultimate consumer. Tort of negligence recognized the product liability of the manufacturer and as per this liability manufacturer owns duty to take reasonable care towards the ultimate consumers while manufacturing its product. In context of this rule, manufacturer is the person who creates the product, assemble the goods, import the goods, and reflect itself as manufacturer of the product among the people. It must be noted that manufacturer of the product can be held liable for any injury or damages that caused to the consumer of the product. Rule related to the manufacturer liability was recognized by the Court in case Donoghue v Stevenson 1932 AC 562. In this case, the central issue which was considered by the Court was “whether plaintiff had any right to file suit against Mr. Stevenson (manufacturer of the product) or not”. In this, Court decided that manufacturer of the product will be held liable for the safety defect. Court further stated that liability of the reasonable care is imposed on the manufacturer ofthe product, which means manufacturer is under obligation to take reasonable care while manufacturing the product. In this case, court recognizes the tort of negligence for providing the reasoning of the decision (Law revision, n.d.). Decision of the Court in this case includes two types of test that were foreseeability test and the proximity test. Under the foreseeability test, court determine whether damage or injury caused to the plaintiff was foreseeable in nature and if such damage or injury was foreseeable then defendant was liable under tot of negligence. Another test was the proximity test which determines the closeness and nearness between the parties. Any person who was close or near to the plaintiff was liable to take reasonable care. In case both the tests are positive then defendant was held liable for the negligence. In context of this case, manufacturer and any other person falls under the category of manufacturer was held liable to take care while manufacturing their products for the ultimate consumers, because it is clear hat products are manufactured by the ultimate consumer and they are going to consume it. Therefore, it is necessary for the manufacturer to avoid any foreseeable harm to the consumer. In this case, numbers of consumers are injured by using product TM31 supplied by Thermomix and manufactured by the Vorwerk & Co. KG., because of which both Thermomix
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