Torts & Consumer Law Case Study

The assignment presents two distinct legal scenarios. The first involves Carl, a chef who prepares a potentially poisonous Fugu fish for Harry. It examines whether Carl's lack of expertise constitutes negligence and analyzes potential defenses like voluntary assumption of risk. The second scenario focuses on Betty, who purchased an iPhone 8 advertised with a 5X zoom but received a phone with only 3X zoom. This part explores Betty's rights under the Australian Consumer Law (ACL) for non-conforming goods, potentially leading to repair, replacement, or a refund.

Running Head: MANAGEMENT LAW
Management Law
Name of the Student
Name of the university
Author note

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Table of Contents
Question 1...................................................................................................................................................2
Question 2...................................................................................................................................................4
Question 3...................................................................................................................................................6
Question 4...................................................................................................................................................9
Bibliography...............................................................................................................................................11

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Question 1
Issue
The issue in this case is to determined that a valid agreement have been signed by Susan with
Tom
Rules
A valid contract is formed between parties two or more parties if all the requirements in relation
to it are fulfilled. The basic requirements for the purpose of establishing a contract include offer,
acceptance, consideration, intention, capacity and free consent1.
A person cannot be made to enter into a contract through the application of force or consent
which is not exercised freely. Consent provided by the party is said not to be free if it includes
the element of undue influence, Duress, misrepresentation or fraud.
In case duress is established by a party to the contract they are allowed to evade their contractual
liabilities in relation to the contract. In the given situation duress occurs if a party forces another
to get into a contract by given a threat to the person, his property or economy2.
In the case of Barton v Armstrong [1973] UKPC 27, [1976] AC 104 it had been provided by the
court that a person who is made to get into a contract due to a physical duress has the right to
avoid the contract even if such duress was not the primary reason of getting into the contract.
Application
1 McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
2 Poole, Jill. Textbook on contract law. Oxford University Press, 2016.

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In the provided scenario it has been stated that Tom has fell in love with Susan. Tom is a multi
millionaire and has proposed Susan who is of the age of 20 to marry him. They had met through
a dating site and Susan is not a resident of Australia. Susan had been promised by Tom that she
would be brought to Australia and would be provided with a house, car and safety. However
while they were about to get married Susan was asked to sign a contract by tom which would
restrict her from making a claim in case of divorce exceeding $100000. In addition she had been
threatened by Tom that if she does not get into a contract she would be made to leave Australia
and he would not marry her.
Applying the provisions of Duress in this case it can be clearly stated that Susan has been forced
by Tom to get into the contract. This is because she would have not got into the contract if such
threat had not been given by Tom. Therefore according to the provisions of duress as provided
by the above discussed case of Barton, Susan can evade her restriction under the agreement as it
is not valid.
Conclusion
Through the application of the provisions related to personal duress it can be stated that a valid
agreement has not been signed by Susan.

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Question 2
Issue
The issue in this case is to determine that whether Steve is bound legally to purchase the car from
Jason.
Rule
A contract is formed between two parties if proper offer and acceptance is made. An offer has to
be certain and complete in order to be binding.
There is a difference between offer and an invitation to a treat as provided by the case of AGC
(Advances) Ltd v McWhirter3. An invitation to treat cannot be accepted to get into a contract.
In the given situation the doctrine of promissory estoppels would come into the context. There
are five major elements of promissory estoppels. Firstly a form is legal relationship must exist or
must be anticipated to exists. Secondly there must be a promise or representation by one the
party to the contract as provided by the case of Waltons Stores (Interstate) Ltd v Maher4. Thirdly,
one of the parties must suffer detriment relying on the promise made by another party. Finally
the circumstances must prove that it would be inequitable or unfair for a party to be allowed to
break a promise.
The court in this case has the discretion to allow any remedy which it thinks fit to compensate
the party which has suffered any losses or due to the promise made by another party.
Application
3 (1977) 1 BLR 9454
4 (1988) 164 CLR 387

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It has been provided in the scenario that Steve who had been wanting to purchase a car came
across an advertisement on the Internet made by Jason. According to Steve this was the exact car
which he had been searching for. A considerable amount of effort has been provided by Steve
while inspecting the car totally. Steve almost spent a total of 4 hours with respect to the
inspection and acquired all details about the car. However Steve provided Jason that he would
have purchase the car if the car had tinted Windows, leather seats and turbo engine. There was
no formal offer made by Steve on this instance as it did not contain essential elements like price
and delivery.
However depending upon the statement made by Steve, Jason made an investment of $50,000
with respect to installing tinted Windows, leather seats in a turbo engine in the car. According to
the provisions of promissory estoppel discussed above a person can be entitled to compensation
even if there was no contract created between the parties. In this case there is anticipation that a
legal relationship with be created. This is because considerable time has been spent by Steve in
order to expect the car and any reasonable person would understand that he is serious about
purchasing the car. There was a representation which had been made by Steve that he would
purchase the car if it contain the above mentioned features. Jason relied on such representation
made by Steve and installed the above mentioned features buy undertaking considerable
investment. If the car is not purchased by Steve then it is evident that Jason will suffer significant
losses and therefore the doctrine of promissory estoppel would prevent Steve from not
complying with his promise. The court may order Steve to purchase the car from Jason or any
equal remedy.
Conclusion

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Steve is liable to purchase the car from Jason through the application of the doctrine of
promissory estoppel
Question 3
Issue
The issue identified in this question is that whether Carl was negligent or not in relation to his
actions
Rule
The principles related to negligence have been created through the decision of the case
Donoghue v Stevenson5. Any harm which a person can foresee results in a duty of care.
The civil liability act 2002 (NSW) also provide regulations in relation to negligence by an
individual or a corporation.
The foreseeability or the Caparo test which has been created through the case of Caparo
Industries Plc v Dickman6 is applied to determine the presence of a duty of care. The principles
state that if the hand could have been foreseen the duty of care is present.
The objective test which was created by the case of Vaughan v Menlove (1837)7 is deployed to
determine the violation of the duty. The principles of the test places a reasonable individual in
similar position to analyze the action of a defendant. Thus if the reasonable person took extra
precaution the defendant is guilty.
5 1932 AC 522
6 [1990] 2 AC 605
7 3 Bing. N.C. 467

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The “but for” test determined factual causation. The principles state negligence is established
only if the act was responsible for the suffered injury as if the act was not initiated the injury
would not happen. The principle originated from Barnett v Chelsea & Kensington Hospital8
Contributory negligence is based on the principle of Voluntary assumption of risk. If a person
who had knowledge that an act is dangerous and may result in injuries or does not take
precaution a reasonable person would take and suffers injury cannot claim the total loss for the
injury9. Such a situation can be used by the defendants a defense. The court uses the concept to
proportionate damages as done in Astley v Austrust Limited10
Application
In the given situation although Carl was a novel chef he did not have the skills which were
required to prepare a giant Fugu. He know that if he does no cook it properly the person eating it
may suffer injury,. Therefore through the foreseeability test a duty of care exists towards Harry.
A reasonable person knowing that he is not qualified enough to do so would not have prepared
the fish. Therefore the duty of care is violated by Carl through objective test. If the fish was not
prepared Harry would not have at it and got ill. Thus through the “but for” test factual causation
is proved. Negligence of Carl is thus established.
Harry at the fish having the knowledge that the fish was require to be cooked by a professional
chef which Carl was not ate the fish. This accounted to negligence on his own as a reasonable
person would not have done so. Here Harry voluntarily assumed risk and contributed to the
harm. This can be used as a defense by Carl.
8 [1969] 1 QB 428
9 Cusimano, Gregory S., and Michael L. Roberts. "Contributory Negligence and Assumption of Risk." Alabama Tort
Law 1 (2016).
10 (2000) 197 CLR 1.

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Conclusions
Carl is negligent but can use the defense of voluntary assumption of risk and contributory
negligence.

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Question 4
Issue
Deterring the rights of Betty with respect to the Australian Consumer Law
Rule
The Australian Consumer law is provided in the schedule 2 of the Competition and Consumer
Act 2010 (Cth)
Section 56 of the ACL states that where goods have been supplied with respect to trade and
commerce through the use of description by a by a supplier to the consumer and such supply
does not take place through the process of an auction it is promised by the seller that the goods
would be as same as what have been provided by the description11.
According to consumer guarantees where the goods are not in accordance to the description the
consumer can claim a repair, replacement or refund for the good.
Application
In the given situation Betty had purchased iPhone 8 with respect the description provided in its
website that it has 5X zoom. However when she received the phone she saw that the zoom was
only 3X and the battery was not as expected. Here apple has violated section 56 of the ACL. This
is because the phone does not corresponded to the description stated by it when it was advertised
to be sold.
11 Competition and Consumer Act 2010 (Cth) at Schedule 2 s56.

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Therefore in the given situation Betty can ask apple to repair the phone, if it cannot be repaired
than replace the phone with a new phone matching the description and if it cannot be done than
claim refund from apple for the phone in relation to consumer guarantees.
Conclusion
Betty has the right to claim a repair, replacement or refund from apple with respect to the phone.

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Bibliography
Competition and Consumer Act 2010 (Cth)
Cusimano, Gregory S., and Michael L. Roberts. "Contributory Negligence and Assumption of
Risk." Alabama Tort Law 1 (2016).
Lee, Rosa. "Promissory Estoppel and Proprietary Estoppel: A Response to the Myth of a
Unifying Approach." King's Student L. Rev. 6 (2015): iii.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK),
2014.
Poole, Jill. Textbook on contract law. Oxford University Press, 2016.