Availed By The Importer Or The Manufacturer -Myassignmenthelp.Com

Question: Discuss About The Availed By Importer Or The Manufacturer? Answer: Introducation The existence of a duty of care in common law is done through the application of various tests. One of the primary test for analyzing whether the duty exists of not is the caparo test as provided through the landmark case of Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords. According to the principles of this test if a person can be harmed foreseeably by the actions of another the other person owes him a duty of care. However to establish that there was negligence in the situation the duty of care has to be contravened. The objective test is best applied for determining the breach of the duty of care owed by a person. The objective test had been used in the case of Vaughan v Menlove (1837) 3 Bing. N.C. 467 where a reasonable person would have been placed in the position of the defendant and then analyzed whether they would have taken the same decision or not which was taken by the defendant, If the decision would involve additional care than the duty would be deemed to be violated by the defendant. The existence of a duty of care and a breach of duty of care alone is not capable of establishing a tort of negligence. Whether the violation of the duty has caused the injury to the person is also considered for the purpose of establishing negligence. The most popular test which is applied for determining the element of causation is known as the but for test. The provisions of the test have been provided in the case of Barnett v Chelsea Kensington Hospital [1969] 1 QB 428. According to the test the injury should not have been caused of the negligent act was not present, that is if the injury would have been caused irrespective of the negligent act there is no claim of negligence. As stated in the case of Murphy v Brentwood DC [1991] AC 398 a person can only claim damages in relation to negligence which are reasonably foreseeable in a objective manner. The aggrieved party is not entitled to any additional damages. Contributory negligence is a form of defense which can be taken by a wrongdoer against the aggrieved party. According to the concept in case the injury had been caused to the plaintiff because of his or her own negligence than the claim of damages by such person is either reduced or totally defeated. In the case of Railways v Halley [1978] 20 ALR 409 the court held that the damages of negligence were to be reduced as there was contributory negligence on the part of the plaintiff. ACL through part 3-5 provides rules in relation to the right of consumers against the manufacturers towards product liability of dangers goods. These provisions are provided through Section 138-150 of the ACL. The manufacturers and importers liability in relation to those products from which safety issue may arise are dealt with by the sections. The following rights are bestowed upon individuals who are subjected to injury by such products. As per section 138 and 139 of the ACL any person getting injured through the use of a product as the right to bring a claim against the manufacturer and the importer Section 140 and 141 states that a claim against the manufacturer and the importer can be bought by a person whose real property or goods have suffered damages due the use of such product Section 142 of the ACL however provides certain defenses to the importers and manufacturers. The defense can be availed in the following situation The defect did not exist when the goods were manufactured The defect resulted out of any legal compliance towards the standard of goods Any technique or scientific knowledge when the goods were manufactured was not adequate to discover the defect. The product was a mixture of other products which were defective Application The above discussed rules have to be applied in order to determine the common law rights of Ann and Carol against Bruce. According to the application of the Capro test as per the Caparo case it can stated that it was reasonably foreseeable for Bruce to known that his actions can harm those who are nearby. Thus as per the neighbor principle Bruce owes a duty of care towards Ann and Carol. However a reasonable person in the same situation would not have taken any additional care as he would not now that the mower may explode. Therefore as the duty of care was not violated through the application of the objective test it can be stated that there was no negligence on the part of Bruce against Ann and Carole. The second issue is in relation to determining the whether there is any negligence by the importer and manufacturer against Bruce, Carol and Ann along with any defenses. As per the application of the neighbors principle and the Capro test as provided through Donoghue and Caparo case respectively it can be stated that the importer and manufacturer both have a duty of care towards Bruce, Ann and Carol. This is because it is reasonable foreseeable for them that if a defective product is provided it can harm the users along with those who are nearby. A reasonable person in the same situation would have ensured that there is no defect in the machine and thus according to the application of the objective test the duties of care have been violated. By applying the But For it can be determined that a injury to Bruce, Ann and Carol would not have been caused if the machine was not defective. Thus were all three elements of negligence have been established in can be said that a negligence claim is present in the situation. In addition the defense of contributory negligence is also not applicable in this case as there is no fault of any party involved as provided by the case study. The damages which can be claimed by Bruce, Ann or Carol include Bruce: compensation for being unable to work for six months, the incurred extensive medical expenses and cost of window replacement but not the damage of disk as it was not reasonably foreseeable Ann: compensation for fractured legs and severe cuts and being unable to work for three months The third issue is in relation to the rights of Bruce, Ann or Carol against the importer and manufacturer under the provisions of ACL. As per section 138-141 they have the right to claim damages for personal injury as well as any injury to property. Thus the damages which were provided in common law would be applicable here as well along with the loss of Erics data contained in the Disk. The possible defenses which the importer and manufacturer may rely on in the situation are provided in section 142. However as per the facts of the case study none of the defenses can be successfully availed by the importer or the manufacturer. Conclusion Thus it can be concluded that Bruce has no liability against Ann and Carol under the provisions of common law Hanks, Distributor and Mower have tortuous liability against Ann, Bruce and Carol as per the provisions of negligence in common law and they cannot avail any defense. Ann, Bruce or Carol have the right to claim compensation in accordance to section 138 to 141 of the ACL The defenses under section 142 are not applicable in this case References Railways v Halley [1978] 20 ALR 409 Murphy v Brentwood DC [1991] AC 398 Barnett v Chelsea Kensington Hospital [1969] 1 QB 428 Vaughan v Menlove (1837) 3 Bing. N.C. 467 Caparo Industries pIc v Dickman [1990] 2 AC 605 Donoghue v Stevenson 1932 AC 562 Competition and Consumer Act, 2010 Grant v Australian Knitting Mills. PC 21 OCT 193