Tort Law: MacTools Ltd Liability in Negligence and Consumer Law

This report analyzes the legal liability of MacTools Ltd under Australian tort law, specifically focusing on negligence and consumer law principles. It examines the duty of care owed by manufacturers, the concept of causation, and the application of relevant legal precedents such as Donoghue v Stevenson. The report considers the implications of the Civil Liability Act 2002 (NSW) and the Australian Consumer Law, assessing the potential for negligence claims against MacTools Ltd. The analysis includes the application of contributory negligence principles in the case of Aurora and the assessment of economic loss for Jessica, providing a comprehensive overview of the legal responsibilities and potential liabilities in the given scenario. The report concludes with an evaluation of the negligence claims and the potential for contributory negligence.

Running head: TORT LAW
Tort Law
Name of the Student
Name of the University
Author note

1
TORT LAW
Issue
The question to determined respect to the given scenario is whether provisions of negligence as
provided by law of torts along with the provisions of the Australian consumer law as provided
through scheduled 2 of the competition and consumer Act 2010 create a legal liability for
MacTools Ltd.
Rules
The rules provided by common law with respect to the tort of negligence along with the
Australian 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 goods
manufactured by a manufacturer is the responsibility of such manufacturer. The principal was
provided 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 be
caused to some other person through their actions can a actual duty of care exist. Usually the
force ability test is used to identify whether a duty of care is vested in a person or not. That test
was used in the case of Chapman vs Hearse 1961 106 CLR 112. However with changing legal
principles in Australia at present only those principles which have been pre determined through
cases are used to identify the existence of a duty of care. It is an already established principal in
Australia 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. As
provided by the case of Australian Competition and Consumer Commission v TPG Internet Pty
Ltd [2013] HCA 54 the inability of a manufacturer to act in specific circumstances in the same

2
TORT LAW
way as a reasonable person would have what the breach of consumer guarantees by the
manufacturer is educate to initiate that the existing duty of care has been breached by the
manufacturer.
The Civil liability Act 2002 NSW states that a standard of care which has to be observed by a
person towards another is determined through the analysis of four elements which include the
degree seriousness involved in the injury, the onus of taking precautions, the probability of the
injury 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 was
provided 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 not
involved the real cause of the injury is the breach of the duty or not can be analysed by applying
the but for test although there are various other tests available for matters of a more Complex
nature. The test determines causation by analysing that if the defendant had been reasonable
towards his duties then the harm would have still been caused or not.
Along with the primary three elements needed to establish negligence the concept of
foreseeability or remoteness is also used by the courts to determine duty of care. The defendant
is usually not considered to be liable to any damages if the court comes to the conclusion that the
injuries suffered by the plaintiff was to remote to make the defendant liable although if it is
established that the defendant has committed negligence. The test which is used to determine
whether a event was to remote to be compensated or not is known as the excel test. The test had
been stopped to be used after the Vagabond number one case however in Australia the case is

3
TORT LAW
still used with a few modifications such as in the case of Nadar vs urban transit authority of
NSW 1985 2 NSWLR 501.
In Australia contributory negligence commonly arises when it can be identified that the
person to whom the injury was caused was negligent himself towards causing the injury.
Historically when the concept of contributory negligence arise the courts used to cancel the
whole claim of negligence and provide relief to the defendant because of the negligent action of
the defendant. However presently the whole claim is not defeated because of contributory
negligence rather the court analyses how much negligence was contributed towards the heart by
the plaintiff in order to find out what damages should be paid to them as in the recent case of
Maureen Townsend v Phillip O’Donnell [2016] NSWCA 288 the concept had been used in
Australia where the court only provided 60% of the compensation to the plaintiff.
Another case in Australia main damages the proportionate it because of contributory negligence
is the case of Logar v Ambulance Service of NSW (Sydney Region) [2016] NSWDC 255. In this
case the court only provided 40% of the total compensation to the plaintiff.
Application
In Australia already established principles are used to determine the liability in negligence.
MacTools ltd who are the manufacturers of the drill will automatically have a duty of care to any
individual who uses or purchase the drill. In the present scenario Aurora who was provided the
drill by Maulan who actually purchased it from MacTools for use, thus Aurora is entitled to be
owed with a duty of care by MacTools.
As provided in the scenario there was as little as 1% chance that there would be problems with
the drill if it is used for a period of more than 5 minutes. However given the amount of injury

4
TORT LAW
which could result out of the use of drill in case they did not know about such facts a reasonable
person should have informed the plaintiff about the chances of malfunction. However such
actions were not undertaken by MacTools as they would have incur loss if they had to recall the
drill. They would have been no injury Cause to Aurora if such simple instructions of not using
the drill for a elongated period would have been passed to them for the drill would have been
taken back for repairs. Therefore it is proved beyond reasonable doubt that MacTools can be
charged for negligence.
On the other hand, clear instructions are provided through the drill, that any person who uses the
grill must ensure the safety his eyes by wearing protective goggles. As this information was not
read by Morgan he was not able to provide this information to Arora as a result Arora got injured
by not using the protective goggles. Therefore in such circumstances it can be provided that
Aurora herself was negligent towards her own safety and contributed to the harm. In such
situations the compensation to be paid to her would be adjusted based on the principles of
contributory negligence.
Another person Jessica who was a glass artist had incurred financial losses as the malfunction of
the drill caused problems to the electric line and a glass structure which she was designing got
damaged. According to the principles of remoteness only the initial harm is entitled to be
compensated. Therefore no legal liability exist for MacTools towards Jessica.
Conclusion
There is negligence on the part of Mac tools
There is contributory negligence on the part of Arora

5
TORT LAW
No legal liability exist with respect to Jessica.

6
TORT LAW
References
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstedt” (1976) 136 CLR 529
Chapman v Hearse (1961) 106 CLR 112
Civil Liability Act 2002 (NSW)
Donoghue vs Stevenson 1932 AC 522.
Logar v Ambulance Service of NSW (Sydney Region) [2016] NSWDC 255
Maureen Townsend v Phillip O’Donnell [2016] NSWCA 288.