LLB 240 - Provisions of Negligence - Tort Law
Added on 2020-03-01
7 Pages1387 Words66 Views
Running head: TORT LAW Tort LawName of the StudentName of the UniversityAuthor note
1TORT LAWIssueThe question to determined respect to the given scenario is whether provisions of negligence asprovided by law of torts along with the provisions of the Australian consumer law as providedthrough scheduled 2 of the competition and consumer Act 2010 create a legal liability forMacTools Ltd.RulesThe rules provided by common law with respect to the tort of negligence along with theAustralian consumer law is used to determine the liability of a manufacturer in Australia.As provided by the principles of common law any harm cost to a buyer for user of a goodsmanufactured by a manufacturer is the responsibility of such manufacturer. The principal wasprovided through the landmark case of Donoghue vs Stevenson 1932 AC 522.Only when a person alleged of owing a duty of care can reasonably foresee an injury to becaused to some other person through their actions can a actual duty of care exist. Usually theforce ability test is used to identify whether a duty of care is vested in a person or not. That testwas used in the case of Chapman vs Hearse 1961 106 CLR 112. However with changing legalprinciples in Australia at present only those principles which have been pre determined throughcases are used to identify the existence of a duty of care. It is an already established principal inAustralia that a manufacturer owes a duty of care to a consumer who uses its goods.If the duty of their food by the manufacturer is violated a claim against him is established. Asprovided by the case of Australian Competition and Consumer Commission v TPG Internet PtyLtd[2013] HCA 54 the inability of a manufacturer to act in specific circumstances in the same
2TORT LAWway as a reasonable person would have what the breach of consumer guarantees by themanufacturer is educate to initiate that the existing duty of care has been breached by themanufacturer.The Civil liability Act 2002 NSW states that a standard of care which has to be observed by aperson towards another is determined through the analysis of four elements which include thedegree seriousness involved in the injury, the onus of taking precautions, the probability of theinjury in case the due care is not observed and the social needs of the activity.The actual Harm which the plaintiffs suffers is signified through the concept of causation. It wasprovided by the judges through the case of Caltex Oil (Australia) Pty Ltd v The Dredge“Willemstedt” (1976) 136 CLR 529 that in most of the cases where pure economic loss is notinvolved the real cause of the injury is the breach of the duty or not can be analysed by applyingthe but for test although there are various other tests available for matters of a more Complexnature. The test determines causation by analysing that if the defendant had been reasonabletowards his duties then the harm would have still been caused or not.Along with the primary three elements needed to establish negligence the concept offoreseeability or remoteness is also used by the courts to determine duty of care. The defendantis usually not considered to be liable to any damages if the court comes to the conclusion that theinjuries suffered by the plaintiff was to remote to make the defendant liable although if it isestablished that the defendant has committed negligence. The test which is used to determinewhether a event was to remote to be compensated or not is known as the excel test. The test hadbeen stopped to be used after the Vagabond number one case however in Australia the case is
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