Commercial Law: Case Study on Negligence and Australian Consumer Law

This assignment presents a commercial law case study involving Priya, Rahul, and their baby Aaru, who were injured due to a defective baby cot. The assignment explores the legal avenues available to Priya and Rahul. Firstly, it analyzes the tort of negligence, detailing the duty of care, standard of care, and breach of duty, and advising on the rights to sue the seller. Secondly, it examines the applicability of Part 3-5 of the Australian Consumer Law (ACL), specifically focusing on liability for goods with safety defects. It identifies who can be sued and the basis for the claim, including sections related to product liability and consumer rights. The document provides a comprehensive overview of commercial law principles, product liability, and the rights of consumers in cases involving defective products, offering a detailed analysis of potential legal actions under both tort law and the ACL.

COMMERCIAL LAW

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
Case Scenario..............................................................................................................................1
1. Advise Priya and Rahul what rights they may have to sue in the tort of negligence. ............1
2. Advise Priya and Rahul if they can sue under Part 3-5 of the ACL. If so, who would they
sue, and on what basis?..............................................................................................................3
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
Commercial law can be defined as the law which deals with the commercial sector for
providing the guidance which is required by any of the individual or organisation. It is necessary
to follow the guidance which is mention under the commercial law. It is also understood as
business law or mercantile law where it covers number of acts and laws under it and they are
corporation law, contract law, intellectual property law and many more (Gillespie, 2017). In
context of the file, their will be brief explanation of the case in the beginning and after that same
case study will be solved. It will include the discussion about trot of negligence and at the end it
will be explained that who can be sued on the basis of given case scenario.
MAIN BODY
Case Scenario
The case is related with Priya, Rahul and their new born baby boy Aaru. Both, husband
and wife are interest in visiting new places. After the born of Aaru, his father went to purchase
new baby's cot. He decided to purchase “Sleep sound” because it is more comfortable and
suitable for the new born baby and even it is easy to assemble and disassembled because it was
potable in nature. The main reason behind purchasing “sleep sound” was to provide extra safety
to their baby because once it is fixed, it stays in the same position tell the gesture is changed.
When both husband and wife went for the adventure trip they uses the same “sleep
sound” which was found collapsed, folded and even Aaru was trapped inside it. After seeing this
mother was also socked due to which both of they required the treatment so that they can recover
from this incident. Now, they are not sure who is the real manufacture of the product because
product was purchased in bulk from one of the importer.
1. Advise Priya and Rahul what rights they may have to sue in the tort of negligence.
Law of Tort: It is defined as the wrongdoing which is done by one party to another. This
falls under the category of civil wrong were liability is raised against the person who have
committed the crime (Saleem, 2012). Whenever case is filed under this situation, it is found
defendant have to prove that he/she is not guilt in this case where they have to come up with
strong evidences. If defendant is able to prove that there was no his/her fault then plaintiff have
to bear all the losses. Under this, party do not have the intention to perform unlawfully but still
action is taken against the person who have been found guilty under this.
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Tort of Negligence: It is the situation where person to whom duty is assigned is failed to
complete it. Here, the person who have assigned the work to have option to sue for negligence.
Here, trot means personal injury or monetary damages (Goode, Kronke, McKendrick and
Wool, 2012). In the above case, it is found that there was the negligence from seller because he
was required to provide the relevant information to the person who comes to his shop for
purchasing any of the product. Tort of negligence mainly occurs whenever person do not focuses
on their work and because of that problem arises in front of the involved client.
Duty of care owned: It is the condition where it is required to check who owns the duty
of care while entering into any of the contract. In the beginning of the contract, it is necessary to
find who owns which kind of duty in any of the case because it is necessary to clarify it in the
beginning. If this things can be done in the beginning, then it will provide more flexibility
whenever default is done (Whaley and McJohn, 2016). In above case, it is was necessary for
supplier to understand the situation and provide information to the client because supplier didn't
purchased the product from the company but he still relied that quality of sleep sound is well
enough to sell in the market. Here, supplier should have informed that although it have the long
lasting and durable but still guarantee cannot be taken as goods have been purchased from one of
the importer.
Standard of Care: This is also one of the important thing because it decides that how
work is required to be done and who have the ultimate duty to care for the work which has been
assigned to them. In the above case it can be understood that parents are the one who owns the
duty in this case because they should have ensure whether their child was taking rest I the best
manner or not. But, both mother and father were watching television in next room where as
child was sleeping. Although, they relied on the words which were spoken by the seller but still
they should have not relied totally upon them because ultimate effect was seen upon the Aaru.
Breach of Duty: This condition only occurs whenever two or more them two party enters
into the contract and one fails to perform their part of work. The contract should be either
voluntary or written. When ever there is the breach of duty there is high possibility that defaulter
might have to compensate for the default which is performed by him (Holtzmann and Neuhaus,
2015). Plaintiff do have the option case a file in this condition against the person have breached
term and condition. In above case there was no breach of contract because it was found that none
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of the party breached their contract but the main thing which created the issue in this case was
false information due to which Aaru and Priya has to suffer.
In above case, it was found that there was the tort of negligence under which seller didn't
perform his part of work as per the required term and condition (Coulson, N., 2017). The
principle of trot of negligence says that, any of the person who didn't perform their part of work
then they are liable for the legal punishment. In the above given case, Priya and Rahul have the
option to sue the seller who have sold the product to them without providing the relevant
information to customer. If it is proved that there was the negligence done by William, they it
will be his responsibility to pay the damages which were suffered by the Rahul and Priya. Also,
seller will be fined for providing irrelevant information to the client. Even there is the chances
that licence can be checked because company doesn't have the appropriate information about the
seller and manufacturer.
2. Advise Priya and Rahul if they can sue under Part 3-5 of the ACL. If so, who would they
sue, and on what basis?
The ACL stands for Australian Law consist number of parts having their own rules and
regulations regarding different types of aspects carried out in a country. It involves, Part 3-5 i.e.,
Liability for goods with safety defects including several divisions which are explained here.
Division 1
Initially, Division 1 consist the criteria of Actions against producers for products with
safety defects including section 138 of Liability for loss or damage suffered by an injured
individual. However, this section consist a manufacturer of products is considered to be liable
for compensating an individual if they supplies goods in trade of commerce, products with safety
defect and the customer suffer injuries due to presence of security defect respectively (Bently
and Sherman, 2014). It consist the fact that client may recover by taking an action against
manufacturer in context of damage or loss faced by a person. Meanwhile, it involves case of
death by injury then an action were an action under law of State or Territory about liability of
respect of injuries and safety defect should be considered as wrongful act, neglect & default of
manufacturer's.
Secondly, the section of 139 regarding Liability for loss or damage suffered by a
person other than an injured individual. It consist that producer of goods is liable to
compensate a person if they will provide products in trade & commerce, security defect, face
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injuries by safety defect, suffering loss or damage because of injuries & death of a person due to
injury and loss or damage did not come about because they have business or professional relation
among an individual and the person (Schultz and Mitchenson, 2016). It also involve the
regulation that an individual may recover through conduct an action opposed the manufacturer,
the amount of damage or loss suffered a person.
The section 140 involves Liability for loss or damage suffered by a person if other
goods are destroyed or damaged. It involves the producer is responsible for to compensate a
customer if they render good in trade or commerce, product with safety defects and goods of a
kind ordinarily acquired for personal, domestic or household utilisation or consumption are
destroyed due to safety defects (Baamir, 2016). Meanwhile, it also consist that aspect of using
products by a client or want to utilise the defective goods for domestic, household or personal
consumption. In addition to this, it considers the criteria of person suffers loss or damage as a
results of destruction accordingly.
The section 141 involves Liability for loss or damage suffered by an individual if land,
buildings or fixtures are damaged or destroyed. It consist the consideration that product
manufacturer is considered to be liable for compensating an individual while good producer
supplies products in trade or commerce, safety defect and buildings, fixtures or land are
ordinarily acquired for private use and the person used these assets for private utilisation & they
face loss or damage as a result of destruction.
At the other hand, the section 142 Defences to defective goods actions in case of
electricity, good with safety defect and scientific or technical knowledge at a time when products
are provide by manufacturer.
Division 2
This part includes Defective goods actions section 143 Time for commencing defective
goods actions involving the criteria that an individuals take action any time within 3 years when
they get aware about alleged loss, safety defect of products and identity of person who produce
goods (Lee, 2012). However, it involves the fact that defective goods must be commenced within
10 years if supply through producer of products to which an action relates. The another section
of 144 consist Liability joint & several considers the if two or more individuals are responsible
under Division 1 for the same damage, they are jointly as well as severally liable (Jess, 2011). In
addition to this, the section of 145 is about survival of action which involves that survival of
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cause of action vested in individuals who die applies to practices under Division 1. Moreover,
the section 146 of No defector goods action where workers' compensation law etc. applies the
Division 1 does not implement to loss or damage and that could be recovered under Law of
Common wealth, a State or a Territory. It will relates to employees compensation or provides
affect to an agreement which is international.
The section 147 of Unified manufacturer consist the aspects which state that an
individual having wishes to institute a defective products action and does not have information
that who is the actual producer of goods to which specific action would relate. At the other hand,
the section 148 of Commonwealth liability for goods that are defective only because of
compliance with Commonwealth mandatory (Keirsbilck, 2011). Additionally, the section section
149 that consist the criteria Representative actions by the regulator which should be followed in
appropriate manner.
Division 3- Miscellaneous
Under section 150 of the act, it is explained the if any of the term and condition of the
contract is changed then option to sue will not be available with the consumer because in this
condition it will be counted as void contract. In addition, subsection 2 says that contract should
not be excluded in any of the condition because it should be related with the provisions (Hobér,
2011).
When it sue under part 3-5 of competition and consumer act, Rahul and Priya will get the
option sue main defaulter. In Division 1, they can sue manufacture for manufacturing the goods
which are not safe and secure for use. The main reason due to which Rahul will have option to
sue manufacture because he was the who didn't their part of performance and because of that
seller and purchaser has to suffer. In this case, even there is the option to sue seller under section
147 of Division where discussion is related with unidentified manufacture because it is the
responsibility of seller that they should be aware of the product which they purchase from
unknown distributor because in that condition if anything happen wrong then ultimate liability
will arise on seller themselves. So, here Rahul have the option to sue William for the negligence
which he had done while purchasing the product from unknown buyer.
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CONCLUSION
It can be concluded that commercial law is one of the essential law because it decides that
how any of the business activity is required to be conducted. There are number of law which falls
under the category of commercial law such as consumer and competition law, corporation law
and many more. It is necessary that person should perform their part of work and if they are not
able to do that then case can be filed against them as it will fall under the category of tort of
negligence. Guidelines of ACL part 3-5 describes about the duties and responsibilities which
must be fulfilled by the consumer else penalty can be imposed.
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REFERENCES
Books & Journals
Baamir, A. Y., 2016. Shari’a Law in Commercial and Banking Arbitration: Law and Practice in
Saudi Arabia. Routledge.
Bently, L. and Sherman, B., 2014. Intellectual property law. Oxford University Press, USA.
Coulson, N., 2017. A history of Islamic law. Routledge.
Gillespie, J., 2017. Transplanting Commercial Law Reform: developing a'rule of law'in Vietnam.
Routledge.
Goode, R., Kronke, H., McKendrick, E. and Wool, J., 2012. Transnational commercial law:
international instruments and commentary. OUP Oxford.
Hobér, K., 2011. International commercial arbitration in Sweden. Oxford university press.
Holtzmann, H. M. and Neuhaus, J. E., 2015. A Guide To The 2006 Amendments To The
UNCITRAL Model Law On International Commercial Arbitration: Legislative History
and Commentary: Legislative History and Commentary. Kluwer Law International BV.
Jess, D. C., 2011. The insurance of commercial risks: law and practice. Sweet & Maxwell.
Keirsbilck, B., 2011. The new European law of unfair commercial practices and competition law
(p. 312). Oxford: Hart.
Lee, R., 2012. Law and regulation of commercial mining of minerals in outer space (Vol. 7).
Springer Science & Business Media.
Saleem, M. Y., 2012. Islamic commercial law. John Wiley & Sons.
Schultz, T. and Mitchenson, J., 2016. Navigating sovereignty and transnational commercial law:
the use of comity by Australian courts. Journal of Private International Law. 12(2).
pp.344-378.
Whaley, D. J. and McJohn, S. M., 2016. Problems and materials on commercial law. Wolters
Kluwer Law & Business.
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