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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 partiesagainst the party who owns duty of care towards that innocent party. It must be noted that, thiscause of action can only be taken when other party in under obligation to take reasonable careand 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 takeaction under this cause of action:Duty to take care- the most important element under this cause of action is the duty totake care. Defendant must own duty to take care towards the plaintiff and this duty must beexisted at the time when negligence is committed by the defendant. Obligation of the party tocomply with the standard care is the obligation which is recognized by the law and the mainpurpose of this obligation is to prevent the harm caused to the plaintiff. The most importantelement of this obligation is foreseeability which means this obligation is emerged in thosecircumstances when damage caused to the plaintiff is foreseeable in nature if defendant fails tocomply with the standard care. Another important element of duty of care is the closenessbetween the parties, which means plaintiff and defendant must be sufficiently close with eachother (Bolton v Stone  AC 850). If two of these elements are present then only defendantowns duty to take reasonable care towards the plaintiff. Civil Liability Act 1936 recognized theconcept 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 breachsuch duty. In other words, defendant does not complied with the required standard of care. Itmust be noted that, for proving that defendant beach the duty to take care; court evaluates thestandard 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 theplaintiff 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, thenin 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 liabilitymanufacturer owns duty to take reasonable care towards the ultimate consumers whilemanufacturing its product. In context of this rule, manufacturer is the person who creates theproduct, assemble the goods, import the goods, and reflect itself as manufacturer of the productamong the people. It must be noted that manufacturer of the product can be held liable for anyinjury or damages that caused to the consumer of the product.Rule related to the manufacturer liability was recognized by the Court in caseDonoghuev 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 safetydefect. 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 whilemanufacturing the product. In this case, court recognizes the tort of negligence for providing thereasoning of the decision (Law revision, n.d.).Decision of the Court in this case includes two types of test that were foreseeability testand the proximity test. Under the foreseeability test, court determine whether damage or injurycaused to the plaintiff was foreseeable in nature and if such damage or injury was foreseeablethen defendant was liable under tot of negligence. Another test was the proximity test whichdetermines the closeness and nearness between the parties. Any person who was close or near tothe plaintiff was liable to take reasonable care. In case both the tests are positive then defendantwas held liable for the negligence.In context of this case, manufacturer and any other person falls under the category ofmanufacturer was held liable to take care while manufacturing their products for the ultimateconsumers, because it is clear hat products are manufactured by the ultimate consumer and theyare going to consume it. Therefore, it is necessary for the manufacturer to avoid any foreseeableharm to the consumer.In this case, numbers of consumers are injured by using product TM31 supplied byThermomix and manufactured by the Vorwerk & Co. KG., because of which both Thermomix