Commercial Law: Negligence and Australian Consumer Law

Commercial Law
0
BULAW5914
1 / 1 7 / 2 0 1 9
Student’s Name

Commercial Law 1
Contents
Question 1........................................................................................................................................1
Facts 1
Issue 1
Rules 1
Negligence................................................................................................................................2
Australian Consumer Law........................................................................................................3
Application 5
Conclusion 6
Question 2........................................................................................................................................7
Facts 7
Issue 7
Rules 7
Application 8
Conclusion 9

Commercial Law 2
Question 1
Facts
In the provided case, a person named Jane purchased Samsung Galaxy Note 7. The battery of
this cellphone had overheating issue. Samsung, being the manufacturer of this phone soon
became aware of this issue as many of the people raised their concern. To prevent the further
issue Samsung made a formal recall of all the Galaxy Note 7 devises from the market in October
2016 but Jane did not get her phone replaced and was using the same. In February 2017, she
suffers from a burn in hand as well as her BMW car was also destroyed cause of overheating
phone. Here, in the case, Jane is a victim as he surfed from a loss.
Issue
Following issues need to be answered:
 What are the rights that Jane have according to the provisions of negligence and
Australian Consumer Law
 What are the possible damages under both the aforesaid laws
 What are the defenses that are relatable and can be raised by the defendant
Rules
A person has the right to initiate an action against the other who do not act as a
reasonable person under negligence as well as Australian Consumer Law (ACL). However,
under both of these laws, situations are different, under which a person can initiate such actions.

Commercial Law 3
Following discussion is focused on right, damages, and defenses available under negligence as
well as Australian Consumer Law.
Negligence
Rights under Negligence
Negligence is a concept of Tort law. According to this law, negligence is a situation where a
person breaches his/her duty of care. However, for the successful claim of negligence, breach of
the duty of care by a person is not enough but in addition to this certain other requirements are
also there which needs to be fulfilled. Following four requirements are mentioned under Tort
Law:-
The defendant must owe a duty of care (Plunkett, 2018)
Such duty of care must be breached
There must be a loss to the victim
Such loss must be a direct result of the negligence of the defendant
(Mccormickmurphy.com, 2018)
If all the four conditions are satisfied then a victim can initiate an action against the
defendant for negligence. According to the decision given in the case of Donoghue v Stevenson
[1932] UKHL 100 a manufacturer owes a duty of care towards the consumer. Similarly,
according to the decision given in the case of Re Polemis & Furness Withy & Company Ltd.
[1921]3 KB 560, a defendant can only be held liable to pay the damage for all the losses that
come out because of his/her negligence. In addition to the Tort Law, Wrongs Act 1958 (Vic)
also contains the provisions related to negligence. Section 18 of the act prescribes the provisions
related to action for damages by a person interested.