Rights and Defenses under Negligence and ACL

Commercial and Corporation Law
1/13/2019
Student’s Name

Commercial and Corporation Law 1
Contents
Question 1........................................................................................................................................2
Issue.............................................................................................................................................2
Rules.............................................................................................................................................2
Rights, damages, and defenses under Negligence....................................................................2
Rights, damages, and defenses under Australian Consumer Law............................................3
Application...................................................................................................................................5
Conclusion...................................................................................................................................5
Question 2........................................................................................................................................6
Issue.............................................................................................................................................6
Rules.............................................................................................................................................6
Application...................................................................................................................................7
Conclusion...................................................................................................................................8
References........................................................................................................................................9

Commercial and Corporation Law 2
Question 1
Issue
What rights Jane has under negligence as well as under Australian Consumer Law in
against of the manufacture of defective Samsung phone. Further, this is check that what are the
possible damages and defenses in the case according to the law of negligence and ACL. At last,
to check that which cause of action will be the most suitable to Jane.
Rules
Rights, damages, and defenses under Negligence
In Australia, Negligence is a concept, which is defined under common law as well as
under statue. In common Law, the Tort Law consist the provisions related to negligence. As per
the tort law, negligence is a situation where a person does not perform the duty as a reasonable
person and in such a manner breach his/her duty of care. According to the decision given in the
case of Caparo Industries PLC v Dickman [1990] UKHL 2 to establish a duty of care, there must
be a relationship of proximity between the defendant and the plaintiff. Further, the risk must be
foreseeable to defendant and at last, it must be just and reasonable to impose the penalty on
defendant.
Another case named Donoghue v Stevenson [1932] UKHL 100 is also a significant one to
study in the area of negligence. In this case, Mrs. Donoghue visited a café with her friend and her
friend ordered a ginger beer. Mrs. Donoghue had the beer with ice cream and then suffered from
personal injury. She brought an action in against of the manufacturer of cold drink. In the
decision, the court held that claim of Mrs, Donoghue will be successful. Further, it was given

Commercial and Corporation Law 3
that a manufacturer owes the duty of care towards the consumer. For a successful claim of
negligence, duty of care needs to be there at the end of defendant. Further, defendant must
breach this duty, there must be a loss to the plaintiff, and the same must not be a remote loss. In
addition to the common law, Wrongs Act, 2015 is there which covers the provisions related to
negligence. If to talk about damages for negligence, this is to mention that a plaintiff can ask the
damages for personal injury, economic loss, and psychiatric injury occurred to him/her.
However, there is a certain limit on the amount of damages that can be a grant to a claimant
under a claim of negligence. These limits are mentioned under the Wrongs Act, 2015. According
to the amendments made under section 28G of this act, a person can be awarded by a maximum
$577 050 for a non-economic loss.
Further, some defenses are also mentioned under Tort Law whereby defendant is not
liable or less liable even doing a negligent act. Contributory negligence is one of the significant
defenses. It is a situation where along with the defendant, the claimant also is liable for the
negligence and his/her acts somewhere contribute to the happening of negligence at the end of
the defendant. As decided in the case of Capps v Miller [1989] 1 WLR 839, the amounts of
damages are reduced in cases of contributory negligence and action of plaintiff must be a
contributory cause to.
Rights, damages, and defenses under Australian Consumer Law
Schedule 2 of the Competition and Consumer Act 2010 (CCA) contains the provision of
Australian Consumer Law (ACL). The act requires manufacturer and distributors of the country
to act in a fair and justifiable manner (Coorey, 2015). The act protects the interest of consumer
from unfair and fraudulent practices such as unconscionable conduct, false representation,
deceptive conduct and other acts similar to these (Corones, 2012). Section 7 of the act defines the