Negligence On The Part Of Mac Tools-Free-Sample for Students

Question: Advise Mactools Ltd as to its legal Position citing relevant legal Authority. Answer: Issue The question to determined respect to the given scenario is whether provisions of negligence as provided by law of torts along with the provisions of the Australian consumer law as provided through scheduled 2 of the competition and consumer Act 2010 create a legal liability for MacTools Ltd. Rules The rules provided by common law with respect to the tort of negligence along with the Australian consumer law is used to determine the liability of a manufacturer in Australia. As provided by the principles of common law any harm cost to a buyer for user of a goods manufactured by a manufacturer is the responsibility of such manufacturer. The principal was provided through the landmark case of Donoghue vs Stevenson 1932 AC 522. Only when a person alleged of owing a duty of care can reasonably foresee an injury to be caused to some other person through their actions can a actual duty of care exist. Usually the force ability test is used to identify whether a duty of care is vested in a person or not. That test was used in the case of Chapman vs Hearse 1961 106 CLR 112. However with changing legal principles in Australia at present only those principles which have been pre determined through cases are used to identify the existence of a duty of care. It is an already established principal in Australia that a manufacturer owes a duty of care to a consumer who uses its goods. If the duty of their food by the manufacturer is violated a claim against him is established. As provided by the case of Australian Competition and Consumer Commission v TPG Internet Pty Ltd[2013] HCA 54 the inability of a manufacturer to act in specific circumstances in the same way as a reasonable person would have what the breach of consumer guarantees by the manufacturer is educate to initiate that the existing duty of care has been breached by the manufacturer. The Civil liability Act 2002 NSW states that a standard of care which has to be observed by a person towards another is determined through the analysis of four elements which include the degree seriousness involved in the injury, the onus of taking precautions, the probability of the injury in case the due care is not observed and the social needs of the activity. The actual Harm which the plaintiffs suffers is signified through the concept of causation. It was provided by the judges through the case of Caltex Oil (Australia) Pty Ltd v The Dredge Willemstedt (1976) 136 CLR 529 that in most of the cases where pure economic loss is not involved the real cause of the injury is the breach of the duty or not can be analysed by applying the but for test although there are various other tests available for matters of a more Complex nature. The test determines causation by analysing that if the defendant had been reasonable towards his duties then the harm would have still been caused or not. Along with the primary three elements needed to establish negligence the concept of foreseeability or remoteness is also used by the courts to determine duty of care. The defendant is usually not considered to be liable to any damages if the court comes to the conclusion that the injuries suffered by the plaintiff was to remote to make the defendant liable although if it is established that the defendant has committed negligence. The test which is used to determine whether a event was to remote to be compensated or not is known as the excel test. The test had been stopped to be used after the Vagabond number one case however in Australia the case is still used with a few modifications such as in the case of Nadar vs urban transit authority of NSW 1985 2 NSWLR 501. In Australia contributory negligence commonly arises when it can be identified that the person to whom the injury was caused was negligent himself towards causing the injury. Historically when the concept of contributory negligence arise the courts used to cancel the whole claim of negligence and provide relief to the defendant because of the negligent action of the defendant. However presently the whole claim is not defeated because of contributory negligence rather the court analyses how much negligence was contributed towards the heart by the plaintiff in order to find out what damages should be paid to them as in the recent case of Maureen Townsend v Phillip ODonnell [2016] NSWCA 288 the concept had been used in Australia where the court only provided 60% of the compensation to the plaintiff. Another case in Australia main damages the proportionate it because of contributory negligence is the case of Logar v Ambulance Service of NSW (Sydney Region) [2016] NSWDC 255. In this case the court only provided 40% of the total compensation to the plaintiff. Application In Australia already established principles are used to determine the liability in negligence. MacTools ltd who are the manufacturers of the drill will automatically have a duty of care to any individual who uses or purchase the drill. In the present scenario Aurora who was provided the drill by Maulan who actually purchased it from MacTools for use, thus Aurora is entitled to be owed with a duty of care by MacTools. As provided in the scenario there was as little as 1% chance that there would be problems with the drill if it is used for a period of more than 5 minutes. However given the amount of injury which could result out of the use of drill in case they did not know about such facts a reasonable person should have informed the plaintiff about the chances of malfunction. However such actions were not undertaken by MacTools as they would have incur loss if they had to recall the drill. They would have been no injury Cause to Aurora if such simple instructions of not using the drill for a elongated period would have been passed to them for the drill would have been taken back for repairs. Therefore it is proved beyond reasonable doubt that MacTools can be charged for negligence. On the other hand, clear instructions are provided through the drill, that any person who uses the grill must ensure the safety his eyes by wearing protective goggles. As this information was not read by Morgan he was not able to provide this information to Arora as a result Arora got injured by not using the protective goggles. Therefore in such circumstances it can be provided that Aurora herself was negligent towards her own safety and contributed to the harm. In such situations the compensation to be paid to her would be adjusted based on the principles of contributory negligence. Another person Jessica who was a glass artist had incurred financial losses as the malfunction of the drill caused problems to the electric line and a glass structure which she was designing got damaged. According to the principles of remoteness only the initial harm is entitled to be compensated. Therefore no legal liability exist for MacTools towards Jessica. Conclusion There is negligence on the part of Mac tools There is contributory negligence on the part of Arora No legal liability exist with respect to Jessica. References Australian Competition and Consumer Commission v TPG Internet Pty Ltd[2013] HCA 54 Caltex Oil (Australia) Pty Ltd v The Dredge Willemstedt (1976) 136 CLR 529 Chapman v Hearse (1961) 106 CLR 112 Civil Liability Act 2002 (NSW) Donoghue vs Stevenson 1932 AC 522. Logar v Ambulance Service of NSW (Sydney Region) [2016] NSWDC 255 Maureen Townsend v Phillip ODonnell [2016] NSWCA 288.