Tort and Consumer Laws: Negligence, Consumer Rights, and Case Studies

This report analyzes two key areas of law: tort and consumer law. The first section focuses on negligence, using a case study involving a café and a consumer who suffers injury from a defective product. It explores the elements of negligence, including duty of care, breach of duty, and causation, referencing relevant legal principles and cases like Hambrook v. Stroke Bros and Smoldon v. Nolan to support its arguments. The second section delves into consumer law in Australia, specifically consumer guarantees and rights under the Australian Consumer Law. It examines a scenario where a consumer purchases defective goods, including a coffee machine, washing machine, and curling tongs, and discusses the remedies available, such as replacement, repair, and compensation. The analysis references key sections of the Australian Consumer Law, including sections 29, 33, and 138, to explain consumer protections against false representations and liability for defective products. The report provides a comprehensive overview of both areas of law, applying legal principles to practical scenarios to illustrate the rights and responsibilities of parties involved.

Running Head : Tort and Consumer Laws
TORT AND CONSUMER LAWS
Name of the Student
Name of the University
Author Note

1Tort and Consumer Laws
Introduction
Negligence is the term used under law of tort to involves certain conduct of
individuals that cause unreasonable injury to property and persons. The person is guilty of the
negligent act when his act deviates from the behaviour which the prudent person is reasonably
expected to do under certain circumstances1. Thus the law necessitates juror to apply his sense
and behaviour in ascertain the standard of care to ensure the safety of others.
Application
The fact of the case is Jim, Kit and Erik stopped in a café at Melbourne and buy three
bottles of drink. They started drinking and having a lovely conversation, all of a sudden Kit
started coughing and his tongue gets choked. One of his friend Erik is a trained nurse pushes his
chest and he coughs up a plastic ball which is part of the bottle. The kit has been diagnosed with
clinical depression and was not able to continue his further study at the university. The question
arises in the particular case is whether the café is responsible for negligent act and Kit is entitled
to receive damages under the law of tort for the loss he incurred due to breach of duty.
In the instant case, Kit drinks a bottle of drink and his tongue get choked by the plastic
ball which is part of the lid of soft drink. The cover of soft drink is loose which the café seller
should inspect at the time of selling it to the consumer. The café seller owes a duty of care
1 Laing, Gregory K., and Simon Hoy. "A Retrospective of Professional Liability of
Auditors in Australia." Journal of New Business Ideas & Trends 16.1 (2018).

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towards the consumer to ensure that the bottle of drink is free from defect to prevent any
significant harm or injury to the health of the consumer. But he breaches his duty and as a result
of which Kit who is buyer suffers physical injury as tongue get choked by the part of the bottle
lid after that Erik saved him. Kit suffers permanent mental loss and fails to continue further
studies. The mental harm which Kit suffer is due to the negligent act of café seller. If the harm is
not foreseeable, then the defendant can raise the plea to establish that he was not negligent. But
the duty cast on the part of the seller is to inspect the goods free from defect at the time of selling
to the customer. Thus the Kit case of negligence is strong as the claim brought by Kit is tenable
in law. The café seller is responsible for the act of negligence as the harm is foreseeable and
there is a direct relation between the act of seller and damage caused to the buyer, Kit due to
misconduct of seller. Whether or not negligence has taken place can be proved if the four factors
are proved that is the seller owes the duty of care and the seller breaches his duty to take
responsibility by not discover the latent defect in the bottle. The buyer suffers a loss due to
failure to take care which he is obliged to do under law of negligence. In the similar cases of
Hambrook v. Stroke Bros, the plaintiff s along with her children suddenly saw the lorry rushing
towards him2. She got frightened for the safety of children as he was informed that a similar case
happens with another child previously. In the result of anxiety, she undergoes nervous shock
which ultimately causes death. It was held by Lord Atkin that the plaintiff was allowed to
recover notwithstanding the fact that the shock was arising due to the fear for the safety of
children and not for his own.
2 Hambrook v. Stroke Bros

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Rules
The law of negligence involves in the particular case by which one person possesses
specific responsibility of care towards another. Thus negligence is to do or omit to do which a
prudent man in the ordinary circumstances would do or neglect to do and if another person
suffers loss or injury due to the failure on the part of the person who owes duty to take care, then
the sufferer is entitled to receive damages in the form of compensation3. The Civil Liability Act,
1936 is applied to ascertain the negligence of person and liability they sustain due to the
negligent act of that person4. The person who suffers loss or injury due to the negligent act of
another if he brings an action against another in the law of negligence, then the victim is entitled
to receive damages in the pecuniary compensation5. The three fundamental element under the
law of negligence is the defendant owes the obligation of care towards the plaintiff, the plaintiff
infringes his responsibility, the plaintiff suffers damage due to the infringement of burden of care
of the defendant. All these conditions required to be satisfied against the defendant, even if one
requirement is not fulfilled, then the defendant failed to prove that plaintiff was careless.
The duty to take care involves specific legal obligation which one person owes to
evade causing injury and occurs where the injury is “reasonably foreseeable if duty is not to
perform. There must be an adequate relationship of intimacy which is termed as proximity
3 Martin, Kenneth. "Topical matters pertaining to the tort of negligence-the attribution
of blame." Brief 43.7 (2016): 38.
4 The Civil Liability Act, 1936
5 Stickley, Amanda P. Australian torts law. LexisNexis Butterworths, 2016.

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between two people to exist responsibility of care6. If the duty of care is breached the first
question which the court takes into regard is standard of care that is reasonably be expected in
particular circumstances7. The standard of care is evaluated by observing what a prudent person
would do or omit to do in similar situations. If the defendant found to be acted in a different
manner, which is not reasonable or their act falls beyond the purview of standard duty of care,
then he will prove to be negligent. In order to establish the violation in taking care, there must be
a clear relationship between the two-act that it is necessary to build in order to prove that damage
is caused due to the negligent act of the defendant. For example, if the person slip-up on a wet
floor and his break due to falling on the floor there is a direct connection between the injury
incurred and the wet floor. But if a person falls on a wet floor and his arm gets injured but on the
same day earlier morning the same arm get an injury by falling from bicycle then the question
arises whether one act or both the action is responsible for his damage and to what magnitude.
The general principle is the duty of care includes that the harm must be foreseeable, the risk was
not a minor and reasonable person if he in the position of that person would have acted in certain
reasonable manner8.
In Smoldon v. Nolan, the plaintiff aged about 17 suffers severe injuries by playing
hooker9. He sued against two defendants under the law of negligence. The allegation against the
6 Alexander, Kern. "Tort Liability for Ratings of Structured Securities under English
Law." University of Oslo Faculty of Law Research Paper 2015-06 (2015).
7
8 Pappalardo, Kylie. "Duty and control in intermediary copyright liability: An
Australian perspective." Copyright Perspectives. Springer, Cham, 2015. 241-259.
9 Smoldon v. Nolan

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first defendant is discharged as there was no appeal against that judgment. The plaintiff alleged
that the second defendant owes a responsibility to take care which includes ensuring the safety of
all individuals. The second defendant appealed against the decision. In Dominion natural gas v.
Perkins, it was held that negligent had been proved against the defendant regarding reasonable
care which he is bound to take unless it is proved that harm was caused by the act of subsequent
violation10. In the case of Donoghue v. Stevenson held that the manufacturer is not absolved
from liability for damage caused due to latent defect merely because he is the owner of the
property11. Lord Atkin held that the manufacturer of good is under a legal obligation to the
ultimate consumer to take care that products are free from any defect, whether latent or patent
that is harmful to health.
Conclusion
Thus it can be concluded that Kit is entitled to get damages from café seller for his
negligent act. The negligent act involves the seller of café failed to exercise the duty of care
which cause loss or injury to Kit. The damages for personal injury can be either in the form of
compensatory or punitive.
10 Dominion natural gas v. Perkins
11 Donoghue v. Stevenson

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Answer to Question 2
Introduction
Consumer law in Australia embodies certain rights of a consumer that can be termed as
consumer guarantees. The rights include the right to replacement, repair and refund in addition to
that consumer is also entitled to claim compensation for loss or damages which he sustains due
to the defective service12. Under the Australian Consumer Law, there is a provision which
authorises the consumer to bring an action for safety defect in the product against manufacturer
whey they incurred loss or damage as the result of such defective product13.
Application
In the present scenario, Max purchases coffee machine, washing machine, heated curling
tongs for his wife. Max is very disappointed after purchasing the goods as the coffee machine
stop functioning after making six coffee, washing machine and heating curling tongs are
defective. The sales assistant at the time of purchasing goods gives him the wrong description for
advertising which is considered illegal under Section 29 of the Australian Consumer Law.
Section 29 of the said Act laid down that it is unlawful to make false representation regarding
12 Pearson, Gail. "Further challenges for Australian consumer law." Consumer Law and
Socioeconomic Development. Springer, Cham, 2017. 287-305.
13 Kariyawasam, Kanchana, and Shaun Wigley. "Online shopping, misleading
advertising and consumer protection." Information & Communications Technology Law 26.2
(2017): 73-89.

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value and standard of products. Section 29 of the said Act is prescriptive in nature which
safeguards the consumer from making false representation to instigate the consumer to purchase
the goods. Section 33 of the said act laid down that engaging in a misleading act concerning
goods or services is contrary to law. The misleading conduct involves any misrepresentation
concerning characteristic, nature, quantity, manufacturing, appropriateness for purpose. Section
138 of the said Act laid down that the manufacturer will be responsible if due to the defective
goods, the consumer suffers loss or injury. In this case, Max is entitled to bring an action under
Section 138 of the Australian Consumer Law against the manufacturer for faulty goods. The
remedies available to Max under Australian Consumer Law includes an injunction, orders and
damages. The Smart Electrical Pty Ltd comes within the definition of the manufacturer as stated
in Consumer law of Australia, then the company will be liable for damage caused to the Max, the
consumer for defects in goods.
Rules
The Australian Consumer Law provides a legal framework to claim liability for defective
goods. Any person can bring action against the manufacturer if he suffers a loss due to the faulty
foods14. In order to bring an action under Section 9 of the Australian Consumer law, the
consumer must prove that there is a safety defect. The safety defect covers the standard of safety
which the consumer is authorized to expect15. In considering the safety standard of goods the
following factors are taken in the regard that is the technique of marketing the products,
14 The Australian Consumer Law
15 Bembrick, Catherine. "Australian consumer law: False or misleading extended
warranties representations." LSJ: Law Society of NSW Journal 9 (2015): 86.

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packaging, use of certain marks in commodities, the safety warnings required for the goods, the
reasonable usage and determination of goods, period in which the goods were delivered to the
market16. Section 138 of the Act laid down that the manufacturer will be liable loss suffered by a
person due to the faulty goods. The Australian Consumer Law provides national execution power
to be applied by all regulators of consumer law. For example, the consumer can claim a
replacement, repay or repairs if the supplier fails to fulfil his legal obligations regarding
consumer guarantees. As per the provision laid down in the act, the person does not come within
the ambit of the consumer if they purchase goods of price less than $ 40,000. The person is
treated as a consumer if he purchases goods for domestic, personal use or consumption worth
more than $ 40,000. For example, the person who buy goods for transportation also comes within
the purview of consumer regardless of price. Section 18 of the Act protects the consumer from
deceptive practice or engaging in the misleading act. Whether the act is construed to be deceptive
or misleading will depends on conditions adjacent to the conduct. This implies that significant
circumstances which will be taken into consideration are product label, advertisement or
statement which is made by sale assistant. Section 7 of the act laid down that manufacturer
includes the following persons that is the person who holds goods to public will be treated as
manufacturer, the definite manufacturer of goods, the person who allows the name of the
business or symbols to be functional in public and the person who ingresses products to Australia
in the case where the manufacturer carries business at any place outside Australia. Section 147 of
the act protect the consumer in the case the consumer did not know the name of the
manufacturer17. If the consumer request the supplier for the name of the manufacturer, if the
16 Thampapillai, Dilan, et al. Australian commercial law. Cambridge University Press,
2015 17 Rodgers, Greg. "Consumer law: Liquidators and defective products: Must they act on
a recall order?." Proctor, The 35.1 (2015): 34.

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supplier failed to provide the details of the manufacturer then it will consider faulty gods action
on the part of the consumer18. To succeed faulty product case, it is necessary to establish that the
consumer suffers actual damages which are caused due to the faulty goods. For instance, it is
necessary to produce medical bills which are incurred for pursuing treatment for an injury in case
if the consumer willing to establish his claim on defective products under the consumer law. If
someone purchases useful goods which turn defective then the consumer is entitled to bring
action against the supplier. Section 142 of the act further laid down that the manufacturer is
entitled to bring following defences which include that the defect occurred in consequence of
confirmation to mandatory standard, defect is not present at the time of selling the goods to
consumer, the defect is not exposed due to scientific and technical knowledge at that time, the
defect lies only in marking or design or instruction of products. Grant v. Australian Knitting
Mills holds the consumer laws in which if the manufacture has knowledge that the consumer
may get injured then it implies that the manufacturer possesses a burden to take care19. In
Woolworths case, the seller sold product with the knowledge that the same is hazardous. The
consumer suffers acute damages due to misconduct of Woolworths as he fails to perform duty by
providing adequate warnings linked with the product20. He is held liable under consumer law. In
the case of Jetstar and Virgin, there is an allegation of misleading the consumer about
airfares21. The ACCC pleaded that the price of airfare is higher after the transaction in
comparison to advertised price due to additional fees made while booking process. In Coles
18
19 Grant v. Australian Knitting Mills
20 Woolworths case
21 Jetstar and Virgin case

10Tort and Consumer Laws
case, the Australian Competition and Consumer Commission raise an action against Coles by
raising that Coles is involved in unconscionable conduct22.
Conclusion
Thus it can be concluded that Max is entitled to receive damages which he sustained due
to faulty goods from the manufacturer who breaches his duty to take reasonable care. The defect
can be a defect in designing or in manufacturing or in warnings. Max is also eligible to bring
action against the service assistant who misleads him by facilitating false information about the
22 Coles case

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product to indulge consumer for purchasing product, it constitutes wrongful act on the part of
service assistant. The legal remedies involve firstly, Strict liability which implies the
manufacture is absolutely liable for product fault which happens at the time of manufacturing
process regardless of manufacture standard of care. Secondly, it includes Negligence by which
the plaintiff is entitled to damages if she can prove that the manufacturer breaches the duty to
take care which he owes towards the consumer.

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13Tort and Consumer Laws
Bibliography
Scholars and Journals
Stickley, Amanda P. Australian torts law. LexisNexis Butterworths, 2016.
Laing, Gregory K., and Simon Hoy. "A Retrospective of Professional Liability of Auditors in
Australia." Journal of New Business Ideas & Trends 16.1 (2018).
Alexander, Kern. "Tort Liability for Ratings of Structured Securities under English
Law." University of Oslo Faculty of Law Research Paper 2015-06 (2015).
Pappalardo, Kylie. "Duty and control in intermediary copyright liability: An Australian
perspective." Copyright Perspectives. Springer, Cham, 2015. 241-259.
Martin, Kenneth. "Topical matters pertaining to the tort of negligence-the attribution of
blame." Brief 43.7 (2016): 38.
Thampapillai, Dilan, et al. Australian commercial law. Cambridge University Press, 2015.
Rodgers, Greg. "Consumer law: Liquidators and defective products: Must they act on a recall
order?." Proctor, The 35.1 (2015): 34.
Pearson, Gail. "Further challenges for Australian consumer law." Consumer Law and
Socioeconomic Development. Springer, Cham, 2017. 287-305.
Kariyawasam, Kanchana, and Shaun Wigley. "Online shopping, misleading advertising and
consumer protection." Information & Communications Technology Law 26.2 (2017):
73-89.

14Tort and Consumer Laws
Bembrick, Catherine. "Australian consumer law: False or misleading extended warranties
representations." LSJ: Law Society of NSW Journal 9 (2015): 86.
Case Laws
Hambrook v. Stroke Bros
Smoldon v. Nolan
Dominion natural gas v. Perkins
Donoghue v. Stevenson
Grant v. Australian Knitting Mills
Woolworths case
Jetstar and Virgin case
Coles case
Legislation
The Civil Liability Act, 1936
The Australian Consumer Law