Principles Of The Tort Law

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Principles Of The Tort Law

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Question:
Discuss about the Principles of The Tort law.

Answer:

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, 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 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.

References:
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.
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.

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