Consumer Law and Product Liability

This assignment delves into a scenario involving a faulty fuel tank in a purchased lawnmower, causing injuries to users and property damage. It analyzes the situation through the lens of the Australian Consumer Law (ACL), examining the rights of the consumer Bruce and the potential claims by Ann and Carol for compensation due to their losses. Additionally, it explores possible defenses that Hank's Distributors Ltd. or Mower Ltd. could raise against the ACL violations.

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Cover Sheet
Name of the student
Student ID
Word count

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Contents
Part A..........................................................................................................................................................3
Applicable law.........................................................................................................................................3
Application of law and conclusion..........................................................................................................4
Part B...........................................................................................................................................................5
Issue 1......................................................................................................................................................5
Applicable law.........................................................................................................................................5
Application of law and conclusion......................................................................................................5
Issue 2......................................................................................................................................................6
Applicable law.....................................................................................................................................6
Application of law and conclusion......................................................................................................6
Issue 3......................................................................................................................................................7
Applicable law.....................................................................................................................................7
Application of law and conclusion......................................................................................................7
Issue 4......................................................................................................................................................8
Applicable law.....................................................................................................................................8
Application of law...............................................................................................................................8
Bibliography................................................................................................................................................9

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Part A
Issue Can P sue anyone, that is, the player, The coach, local council which owns the football
ground or the football club.
Applicable law
When any spectator is found to be injured while watching any sporting event then the main
question that arises is who shall take the responsibility of such injury.
It is analyzed in (Woods v Multi-Sport Holdings Pty Ltd) and (Rootes v Shelton , 1967)by
Glesson CJ and Kitto J that the law of negligence is applicable even if the games are
risky. The law of negligence is a tort law wherein the defendant is liable for the losses
that are sustained by the plaintiff because of the non-compliance of the duty of care that
is expected from the defendant. Recently, in (Ollier v Magnetic Island Country Club ,
2004), the court held liability on an amateur golfer who failed to take reasonable safety
measures while striking a ball before playing which stuck another golfer. Also, in
(Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone ), there were insufficient
safety measures which resulted in declaring the defendant negligent. (Schot, 2005).
Thus, to impose negligence the main requirements include: (Schot, 2005)
I. Duty of care signifies that the defendant must carry out his acts so that no damage is
caused to the plaintiff who is his neighbor and is resemble foreseeable. In the event of
sports, there exist duty of care upon:
a. Every occupier against
 all those person who are present in the premises, that is, spectators, players, etc.
 to make every unsafe thing safe, and;
 to provide safety against dangers
b. a sports supervisor, that is, managers, trainers, administrators, medical advisors,,
organizers of events and volunteers, own duty of care against participants and spectators
(Watson v Haines, 1987).
c. all the participants own a duty of care against each other (Fraser v Johnston , 1990).
d. also, the employers are held to be owned by the actions of the players (Budgen v Rodgers
, 1993).
II. When the duty of care is not cater as per the desired level of standard then there is breach.
The breach is analyzed considering the age of the participant, experience of coach etc.
III. It is necessary that because of such duty there must be some loss that is suffered by the
plaintiff.
But, the defendant can protect themselves by establishing that the spectators are fully aware of
the inherent risks that are involved in the given situations and the spectators willingly
decided to be part of such sporting event and thus take defense of volenti non fit injuria.
But, it is held in (Woods v Multi-Sport Holdings Pty Ltd) and (Romeo v Conservation
Commission of the Northern Territory, 1998), when the risk is obvious then there is no
need to provide any kind of warning notice and the plaintiff must secure his own interest.
The law is now applied to the given situation.

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Application of law and conclusion
As per the facts, P is a lifelong fan of the ABC Football Club. While watching a game, P was hit
by a stray ball which broke P’s glasses.
P v Player
The Player is playing the game of football. As per (Fraser v Johnston , 1990), every player must
be responsible against other players. There is no duty of care that is imposed upon the
player to provide any kind of protection against the spectators. Since there is no duty of
care that is imposed, thus, there is no law of negligence that is applicable against any
player.
Thus, P cannot sue the player for the losses that is caused to him.
P v The coach
Now, every coach is also under the duty of care to guide the players in such a manner so that no
action is caused to them because of the any omission of duty on the part of the players.
However, there is no duty of care that is imposed upon the coaches to provide adequate
care to the spectators of the sporting event.
Thus, P cannot sue Coach for the injuries that are caused to him.
P v The local council which owns the football ground
The council owns the football ground and thus they are the occupiers of the premises. It is the
duty to provide care to all the people who are present on the premises and the premises
should be such so that it is safe for the people present. Now, the council thus must own
duty of care against P which is violated because there are no proper safety measures that
is taken by council.
P suffers injuries and thus P has every right to sue the council under the law of negligence
P v The football club
The football club is the organizers of the sporting event. Thus, as per (Watson v Haines, 1987)
they are the people who own a duty of care against a person who is present at the
premises. Thus, there exists a duty of care upon the football club.
Now, while watching a game, P was hit by a stray ball which broke P’s glasses. It is submitted
that the club must have cater their duty of care by proper providing fencing grounds.
Thus, the duty that is expected from the club is not met and because of the breach there is
loss that is caused to P.
So, the club can be held liable for the negligence that is caused to P.
But, club can reduce its liability if it can prove that it has placed adequate warning notices which
establish that there are chances that stray balls will come and the spectators must be
responsible for their own safety.

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Part B
Issue 1
Whether Ann and/or Carol be able to sue Bruce under common law duty of negligence?
Applicable law
The law of negligence is the applicable law in the given situation.
Every defendant is under duty to provide care to the plaintiff against every act and omission that
is undertaken by him (Donoghue v Stevenson , 1932). However, the duty is only against
those plaintiffs who are his neighbor that is with whom he is sharing proximate
relationship and such plaintiff must be presumably foreseeable by him (Grant v
Australian Knitting Mills , 1936). (FORESEEABILITY, 1999)
Further, when the duty if imposed then if the defendant is not able to cater such duty as per the
expected level of care that is required in the given scenario, then, there is breach of duty
of care (Australian Safeway Stores Pty Ltd v. Zaluzna , 1987).
If the duty of care takes place and because of breach if any damage is caused to the plaintiff then
the defendant is negligent. The damage must not be remote and must be caused because
of the breach of duty of care on the part of the defendant (Overseas Tankship (U.K.) Ltd\.
Moris Dock and Engineering Co. Ltd (The Wagon Mound), 1961).
Once all these three elements are comply with the plaintiff can sue the defendant under the law
of negligence.
Application of law and conclusion
Position of Ann
The facts submit that Ann is a pedestrian and because of the blast she suffered fractured leg and
sever cuts.
It is submitted that user of the lawnmower (Bruce) owns a duty under law that when using the
mower he must act in such manner so that no injury is caused to any of the plaintiff.
Now, the duty can only be imposed on Bruce when the plaintiff is his neighbor and is reasonably
foreseeable.
It is submitted that Ann is the pedestrian and is not present in the lawn when the explosion took
place. In order to make Ann the neighbor of Bruce it is necessary that they must be
proximate with each other. But, there is no proximity amid the two and also Bruce cannot
reasonably foresee the presence of Ann.
So, there is no duty of care can be imposed upon Bruce to provide safeguard to Ann under the
law of negligence.
Thus, Ann cannot sue the user for her injuries.
Position of carol

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It is submitted that Bruce is aware that while using the mower he must take precaution to
provide care to the persons and property that were closely linked with his actions. The
front room where the mower is being used is with proximate range and is reasonably
foreseeable by the user.
Thus, it is the duty of Bruce that he must act in such manner so that because of his usage of
mower no damage is caused to such room and its contents.
Now, an explosion took place because of the faulty fuel tank. It is submitted that if Bruce is
using the lawnmower knowing the fact that the fuel tank is faulty then he has violated his
duty of care that is expected from him.
Because of such breach Carol has suffered loss as the Computer disks containing data supplied
by Eric was destroyed because of the explosion.
Thus, Carol has full right to sue Bruce under the law if negligence.
Issue 2
Explain the basis of any liability in the tort of negligence that Hank’s, Distributor and Mower
might have against Ann, Bruce and Carol. Also consider the possibility of any defenses in
negligence.
Applicable law
The scope of the liability is negligence is very important.
As submitted a defendant is liable to the plaintiff provided the duty that is owned by the
defendant is not catered by him and which has resulted in causing harm to the plaintiff
which is not remote and is reasonably foreseeable. (L'Estrange)
However, when there is more than one defendant, then the major question arises is against whom
the plaintiff should bring an action of negligence? (MacLeod, 2002)
In (Donoghue v Stevenson , 1932), the defendant is a manufacturer however, it was held by Lord
Atkin that the definition of defendant is not restricted to manufacturers in consumer
goods, but includes retailers, assemblers, distributors (Evans v Triplex Glass, 1936).
So, all persons who are link in the chain of the distribution of the component will be liable to
their related link.
The assemblers and manufacturers are normally liable for lack of warning, negligent
manufacturing or design. The distributors are normally liable if there is mishandling.
.
Application of law and conclusion
As per the facts, there is explosion in the lawnmower because of the faulty fuel tank.
Ann - Now, Bruce cannot reasonably foresee Ann, thus, there is no duty of care upon Bruce
against Ann. So, Ann cannot sue Bruce for negligence. But, she can sue Distributors Ltd
or Mower Ltd considering the fact that there is negligent manufacturing and design.

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Bruce – Bruce is the user of the lawnmower and an explosion too place. Thus, he has full right to
sue his supplier from he has purchased the product, that is Hank’s Hardware. He can also
sue Distributors Ltd or Mower Ltd considering the fact that there is negligent
manufacturing and design.
Carol – Bruce is considered to win duty of care against the property of carol and this duty was
violated causing harm to carol. So, Carol can sue Bruce under the law of negligence. She
can also sue Distributors Ltd or Mower Ltd considering the fact that there is negligent
manufacturing and design.
Issue 3
Do Ann, Bruce or Carol have any possible rights under Part 3-5 of ACL against Hank’s,
Distributors Ltd. or Mower Ltd.?
Applicable law
Under the ACL, the distributors, manufacturers or any person who is dealing with the goods at
the retail level are expected to deliver the goods after compliance with all the consumer
goods and services guarantees that are mentioned under the ACL. If these guarantees are
not met then there are several remedies that can be availed by such aggrieved consumer.
Thus, the main consumer guarantees are: (Healey, 1988)
i. Section 54-55 - That the goods must be of acceptance quality. It signifies that goods must
be of merchantable quality when sold and must be fit for the purpose supplied. It must be
safe, durable and free from defects (David Jones v Willis, 1934).
ii. Goods must be fit for the purpose so specified by the consumer.
Once a consumer guarantee does not apply then the consumer can take an action against the
manufacturer. However, a manufacture is not the one who manufacturers the goods but
includes:
i. Any person who imports the goods in Australia;
ii. The person who puts the goods together;
iii. Holds himself as the manufacturer of the goods;
iv. Puts his name on the goods.
Once the guarantees are not comply with then the consumer has every right to seek action against
the manufacturer and claim repair, replacement or repairs but the remedy depends upon
the kind of failure (section 260 of ACL):
i. Major – if the failure is such that if the same is in the knowledge of the consumer then he
would not have purchased the same or of the defect cannot be remedied to make the good
fit for the purpose acquired in reasonable time or when the goods were unsafe.
ii. Minor - the failures which are not majors are minor.
Application of law and conclusion
It is submitted that because of the fuel take an explosion took place
Now, there are several rights which are owned by Ann, Bruce or Carol under Part 3-5 of ACL.

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The rights are established under section 54-5, that is the right to have a safe product, fit for the
purpose acquired, etc.
Now, Hank’s, Distributors Ltd. and Mower Ltd. who are the distributors and assemblers of the
goods are considered as manufacturer. Thus, Ann, Bruce or Carol can sue them
Also, as per section 260, the fault in the lawnmower was a major one as it was unsafe for use.
Thus, the consumer can claim replacement, repair or refund of price.
Now, since Bruce has purchased the mower so he can seek replacement, refund r repair.
The losses that are caused to Ann and carol can claim compensation for the loss they suffered.
Issue 4
Could Hank’s, Distributors Ltd. or Mower Ltd. raise any possible defenses under the ACL?
Applicable law
When any manufacture under ACL have found to be in violation of his statutory duties then he
must make good the loss that is suffered by the consumer.
However, there are few defenses that can be availed by such manufacturer. The same are:
i. That the defect is not present when the goods were first provided or supplied by the
manufacture;
ii. Because of the compliance of a mandatory standards that the defect has incurred in the
goods;
iii. The defect is attributable to the design of the finished product or to any markings,
instructions or warnings given by the manufacturer of the finished product, rather than a
defect in the component.
Thus, these are the basic defense that can be raised by the manufacture.
Application of law
Now, the exploitation that took place is because of the faulty fuel tank, thus, the manufacturer
can take a defense that the defect is attributable to the design of the finished product or to
any markings, instructions or warnings given by the manufacturer of the finished product,
rather than a defect in the component.
Also, they can submit that the defect is not present when the goods were first provided or
supplied by the manufacture.

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Bibliography
Australian Safeway Stores Pty Ltd v. Zaluzna (1987).
Budgen v Rodgers (1993).
David Jones v Willis (1934).
Donoghue v Stevenson (1932).
Evans v Triplex Glass (1936).
FORESEEABILITY, N. &. (1999, August 6). Doctrine of Law or Public Policy. Retrieved September 28, 2017,
from http://www.supremecourt.tas.gov.au/__data/assets/pdf_file/0003/53760/
Negligence99.pdf
Fraser v Johnston (1990).
Grant v Australian Knitting Mills (1936).
Healey, D. (1988). Australian Trade Practices Law. CCH Australia.
L'Estrange, N. (n.d.). PROXIMITY AND THE STANDARD OF CARE — COOK. Retrieved September 28, 2017,
from QLD. INSTITUTE OF TECHNOLOGY LAW JOURNAL :
http://www.austlii.edu.au/au/journals/QITLawJl/1987/11.pdf
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004).
MacLeod, J. (2002). Consumer Sales Law. Cavendish Publishing.
Ollier v Magnetic Island Country Club (2004).
Overseas Tankship (U.K.) Ltd\. Moris Dock and Engineering Co. Ltd (The Wagon Mound) (1961).
Romeo v Conservation Commission of the Northern Territory (1998).
Rootes v Shelton (1967).
Rootes v Shelton (1967).
Schot, N. (2005). Negligent liability in sport. Sports Law eJournal .
Watson v Haines (1987).
Woods v Multi-Sport Holdings Pty Ltd (2002).

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