Tort Law Case Study Analysis

This case study analyzes the principles of tort law, specifically focusing on duty of care and contributory negligence as they apply to a specific incident involving the McTools company. It discusses the legal responsibilities of both the victim and the manufacturer, referencing key cases and statutory provisions under Australian law. The conclusion highlights the shared liability in the case, emphasizing the importance of adhering to safety instructions.

Running head: LAW
Tort Law
Name of the student:
Name of the university:
Author note

1TORT LAW
Issue:
The issue of the case is whether the McTools company is responsible for the accident
occurred or not.
Another issue raised in the case is whether the company is liable to pay full
compensation to the company or not.
Laws:
This case attracts the principle of duty of care and contributory negligence that are
engraved under the provision of Tort law1. In Australia, tort law is based on the principle of
common law. Both the principles are within the scope of the term negligence. Negligence is a
careless act that injured a person and may cause damage to the victim. A person is said to do
negligence if he fails to take certain measures what a prudent man would do in that position.
Negligence has been attached in the Civil liability Act 2002 in Australia. In the case of
negligence, the claimant has to prove the damage that is occurred due to the negligent act of
the wrongdoer2.
Therefore, from the definition of negligence, the duty of care principle is observed. It
is the duty of every person to act diligently so that it could not harm others. In a historical
case of Donoghue v. Stevenson [1932] AC 562, it was observed by the Court that the
manufacturer of a product is liable for the every disputed item that are made by him. The
elements of duty of care are engraved in the case3. In this case, it was held that if the claimant
1 Barry, C. (2017). Statutory modifications of contributory negligence at common law. Precedent (Sydney,
NSW), (140), 12.
2 Cusimano, G. S., & Roberts, M. L. (2016). Contributory Negligence and Assumption of Risk. Alabama Tort
Law, 1.
3 McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).

2TORT LAW
proves the violation regarding the provision of the duty of care, the defendant has to
compensate the claimant. The main objective of the case is that the defendant should foresee
the effect of anything conducted by him. Problem regarding the duty of care is that the limit
of the liability in such cases. In a famous case of Ultramares Corp. v Touche & Co 174 NE
441 (1931), a company suffers for the wrong accountant policies of the accountant and a
claim arose regarding the breach of duty of care by the accountant. Court stated that the
liability of a person under this provision could be limitless and it is to be understood whether
there is a scope for the person to foresee the damages4. In Perre v Apand (1999) 198 CLR
180, the court was pleased to decide that if the conduct of the defendant is not foreseeable in
nature, he will not be liable under the provision of the Duty of Care. The duty of care can be
claimed in circumstances like physical or mental harm caused to the plaintiff. Damage can be
claimed in case of emotional shock too. The provision is described in section 31 of the Civil
Liability Act 2002.
Under section 5D of the Civil Liability Act 2002, there is a provision regarding the
harm is mentioned. Under the elements of the negligent act and the provision of the duty of
care, harm is one of the essentials. The harm can be of physical or psychological damage.
The present case is attracting the provision of the contributory negligence too. In the
tort law of Australia, there are certain defenses mentioned for the defendant where the
claimant is barred by law to claim full amount of damages from the defendant. Contributory
negligence is a part of it. Under this rule, it is to be observed whether the claimant is also
liable for the accident or not. In Pitts v. Hunt [1990] 3 All ER 34, it was observed by the
4 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.

3TORT LAW
court that in any accident, if there was certain evidences that proved the negligent act of the
claimant, law will protect the interest of the defendant to certain extant and the claimant will
bar by the law to claim full compensation from the defendant. In Astley v. Austrust Limited
(2000) 197 CLR 1, the same principle was established by the High court of Australia.
Under section 5R of the Civil Liability Act 2002, it was mentioned that it is the duty
of a person to abide by the instructions carefully before use a particular thing and should take
necessary things to avoid any accident5. If the plaintiff fails to avoid such things, and an
accident occurred due to this, he will be liable for the same partly along with the defendant.
This term of contributory negligence is acting as a defense to the defendant. The liability
regarding the acts is depending on each facts of the case and there is no specific rule
mentioned regarding the liability of this case. In Mak Woon King v Wong Chiu [2002] 2
HKLRD 295, a worker employed under the company of the defendant had failed to complied
with the instruction of the company and was killed. Court held that the liability of the
company is less than the liability of the workers and ordered to pay only 15% of the claimed
money6.
Application:
In this present case, same principle of duty of care and contributory negligence will be
applicable. Aurora, the victim had failed to follow the instructions properly and suffered from
5 Fordham, M. (2013). Legislation and Case Notes: Contributory Negligence and the Disabled Claimant.
6 McLachlan, R. (2013). Deep and Persistent Disadvantage in Australia-Productivity Commission Staff
Working Paper.

4TORT LAW
serious eye injury7. Therefore, the law to claim full compensation from the company bars her
and the observation of the case of Mak Woon King will be applied. It was her duty to take
possible care to avoid any harm. However, she failed and the principle of contributory
negligence will be injected here8.
The manufacturing company is also liable in certain parts. The company had failed to
owe certain duties regarding the product. The fact was known to the company that there is a
possibility of short-circuit if the machine is working for more than five minutes continuously.
The company had failed to take reasonable steps for that and failed to make the customers
cautious about the facts. Therefore, the rules of Donoghue’s case will be applicable in that
case.
Conclusion:
7 Rajapakse, P. J. (2016). Contamination of food and drinks: Product liability in Australia. Deakin L. Rev., 21,
45.
8 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.

5TORT LAW
Therefore, it can be conclude that the manufacturing company is liable under the
provision of the duty of care principle. However, it can defend itself under the provision of
the contributory negligence as the victim is also partly liable for the accident.

6TORT LAW
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.
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.
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.