Tort Law: Case Analysis of Negligence and Contributory Negligence

This report provides a comprehensive analysis of a Tort Law case, focusing on the principles of negligence, duty of care, and contributory negligence within the Australian legal framework. The report examines a scenario where a consumer, Aurora, is injured while using a power drill manufactured by McTools Ltd. The analysis delves into the manufacturer's duty of care, drawing upon the precedent set by Donoghue v. Stevenson and relevant sections of the Civil Liability Act 2002. The report argues that McTools Ltd. breached its duty by failing to inform the customer about potential defects and risks associated with the machine. Furthermore, the report considers the concept of contributory negligence, as Aurora failed to follow safety instructions. The conclusion suggests that while McTools Ltd. is liable for negligence, Aurora's actions may limit her claim due to contributory negligence, as per the Civil Liability Act. The report also references several legal cases and academic articles to support its arguments.

Running head: TORT LAW
Tort Law
Name of the student:
Name of the university:
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Issue:
The issue of the case is whether the alleged manufacturing company has violated the
principles of the Tort law or not.
Law:
In Australia, there are certain laws enacted for the civil wrongs. The law regarding
Torts is one of them (Barry, 2017). There are numerous provisions mentioned under the law
that protect the interest of the victim if he suffers for the wrongful acts of the wrong doer.
The main elements of the negligence are that there must be certain evidences regarding the
negligent act of the defendant and certain damage must be caused due to this (Cusimano &
Roberts, 2016). In this case, there are certain evidences against the negligent act of the
McTools Ltd. regarding the manufacturing of the power-drilling machine. Therefore, the case
contains the provision of the negligence. Under the law, there is a provision regarding the
duty of care that is one of the fundamental rules of the negligence law. The provision of the
duty of care was first time come into the lights by a popular case of Donoghues v Stevenson
[1932] AC 562. In that case, a consumer bought a ginger beer and found a decomposed body
of a snail into the bottle. The consumer became ill and filed a suit against the manufacturer
for his act of negligence. The Court observed that manufacturer of a product owes certain
duties to the consumers and if there is a violation observed, he should be liable under the
necessary provision of law. In Australia, the negligence is a part of the Civil Liability Act
2002 (Fordham, 2013). In Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7, it
was contended by the Court that it is responsibility of the occupier of a place to owe certain
duty to others and he must foresee all the risks that can be accrued from that place. Therefore,
it can be stated that there are certain elements present regarding the duty of care. In the case
of Donoghue, the court had elaborately prescribes all the essentials of the rule (McKendrick,

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2014). As per the observation of the court, every person must owe certain duty to other and
should have to foresee the potential risks regarding the same. In Australia, duty of care is
prescribed under section 5B (1) of the Civil Liability Act 2002. A violation regarding the duty
of care can cause both physical and mental damage (McLachlan, 2013).
Under the Tort Act, there is a chapter on the defense program of the defendants and
works as an umbrella to the defendants. Contributory negligence is one of them. It is a plea
that can be taken by the defendant to protect his interest. Under the necessary provision of
this defense, it has been stated that if in an accident the sufferer is also liable, defendant will
get certain benefits regarding this. The benefit is that the victim could not claim full amount
of damage from the defendant. Section 5R of the Civil Liability Act 2002 discuss about the
provision of the defense. However, it should be bored in mind that contributory negligence is
a partial defense that is available to the defendant of a case.
The damage amount is based on the perspective of every case. In Imbree v McNeilly
[2008] HCA 40, the plaintiff was allowed the defendant to drive a car without any license
and the defendant had crushed the car and got the plaintiff injured. It was observed by the
court that the plaintiff is partly liable for the accident as he allowed the defendant to drive the
car having know about the fact that he did not owed any license and therefore, barred by the
law to ask for full amount of damage. Based on the amount of liability by the plaintiff, the
court ordered the defendant only 30% of the claimed money by the plaintiff.
Application:
The present case is based on the above named principle of the negligence. It is
observed that the husband of the victim, Mulan bought one drill machine from McTools Ltd.
and the victim used the same. The company had failed to tell the customer about the defect of
the machine that there is a risk if the machine used if used five minutes at a stretch. It is the

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responsibility of the company to foresee the risks. However, the company was failed to
perform his duty and unable to maintain the standard of duty (Rajapakse, 2016). As per the
statement of the Donoghue V. Stevenson’s case, it can be stated that the manufacturer
company had failed to meet all the elements of the duty of care and therefore, liable for the
negligent acts. There are sufficient evidences against the defendant to make him liable under
the provision. It is a fact that the company is liable for the negligent act that it failed to inform
the customer regarding the defect of the machine and there is damage occurred regarding the
same to the plaintiff (Stewart & Stuhmcke, 2014).
However, the case is also attracts the provision of the contributory negligence. It has
been stated in the case that the victim had not read the instructions properly and had not taken
necessary steps to avoid the accident. Under section 5R of the Civil Liability Act, it has been
clarified that the plaintiff, Aurora must be taken certain possible measures regarding the
work. The defendant can only able to get the benefit under the provision when the victim is
partly liable for the accident. In the present case, the victim had not used any goggles when
the machine was on and there was a short circuit occurred and she lost one eye. The
defendant is liable as they had not informed the customers about the fault of the machine
(Latimer & Chester, 1968). The plaintiff is also liable as she had not abide by the norms of
the instructions and failed to meet the criteria of the same.
Conclusion:
Therefore, in the lights of the above mentioned provisions and case laws, it can be
stated that the company is liable for breach of necessary duties owed by him and liable for the
violation of the standard of duties. On the other hand, it can be stated that the victim is unable
to claim full amount of money from the company as she was also liable for the accident and
barred by the principle of the contributory negligence.

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Reference:
Barry, C. (2017). Statutory modifications of contributory negligence at common
law. Precedent (Sydney, NSW), (140), 12.
Cusimano, G. S., & Roberts, M. L. (2016). Contributory Negligence and Assumption of
Risk. Alabama Tort Law, 1.
Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernàndez-
Cueto, C., ... & Pinchi, V. (2016). International Guidelines on the Methods of
Ascertainment of Personal Injury and Damage Under Civil-Tort Law. In Personal
Injury and Damage Ascertainment under Civil Law (pp. 583-602). Springer
International Publishing.
Fordham, M. (2013). Legislation and Case Notes: Contributory Negligence and the Disabled
Claimant.
Latimer, H., & Chester, A. (1968). Selected sermons of Hugh Latimer. Charlottesville:
Published for the Folger Shakespeare Library [Washington, by] University of Virginia
Press.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press
(UK).
McLachlan, R. (2013). Deep and Persistent Disadvantage in Australia-Productivity
Commission Staff Working Paper.
Rajapakse, P. J. (2016). Contamination of food and drinks: Product liability in
Australia. Deakin L. Rev., 21, 45.

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Stewart, P., & Stuhmcke, A. (2014). Lacunae and litigants: A study of negligence cases in the
high court of Australia in the first decade of the 21st century and beyond. Melb. UL
Rev., 38, 151.