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(Australian Technical and Management Collage) ?Assignment Task 1: Microeconomics Name –  Student ID: Subject:  Teachers’ name:Date of Submission:          COMMERCIAL LAW Part A Issues: P is a football lover and lifelong fan of ABC club. He got his glasses broken by a stray ball from the player while enjoying the match in the stands. The issue is against whom P can take legal actions foe his damage.• A player• Coach• Local council• Football clubRule:Bolton v Stone 1951 AC 850 Miss Stone was struck by a ball while she was strolling on the street with adjacent ground. The cricket matches use to hold in this ground since 1864 and it was protected from the fence of 2.1 meters. The House of Lords analysed that hitting the ball out of the ground is rear occasion and it is a foreseeable risk that ball can hit over the fence outside the ground on rear basis. The plaintiff was not successful in getting any compensation as he should consider the foreseeable risk of injuries which is also small and slight. In ordinary life, while taking all precautionary measures of care, risk still exists. Duty of Care:In eyes of law, the official body having the capacity to organise and manage sport events by making such activities as safe as possible for the all people who participate.Risk is involved in all kind of sport. However, the players and spectators come in the ground with the acceptance of unavoidable risk towards reasonable foreseeability. Law has not enforces any duty of care for unseeable, imaginary dangers of risks. Breach of duty (4-100):Doing something, which a reasonable would not expect to do or would have done in the circumstances, is termed as breaching of duty of care. Bolton v Stone (1951)Defences:• Voluntary assumption of risk (4-170):The plaintiff’s claim is not successful under voluntary assumption of risk and defendant has to prove that plaintiff is agreeing upon involvement of risk.  • Contributory negligence (4-160)People’s carelessness towards themselves could also cause damages and compensations on part of defendant could be reduced if these are occurred due to contributory negligence. The Statute Law offers the apportionment of expenses for damages among parties. Plaintiff has to own negligence for being victim of contributory negligence. Civil Liability Acts 2002 (4-161)Under Civil Liability Acts 2002, the reasonable person should at plaintiff’s position to understand the standard of care and court has right to reduce liability by 100%.  • Inherent Assumption of Risk: In all physical sports, there is an inherent risk involved from flying objects like balls and spectators should be attentive towards these risks.  Analysis:The possible action of spectator P against players is not admitted. The players are not directed to hit the balls towards spectators with the intensions of damaging and harming them. The argument that other player failed in catching or stoping the ball would not liable them for any damage and it would not considered as breach of duty of care. The spectators come in the ground with acceptance of inherent risks of flying bodies and they should keep an eye on these risks during the course of game. The plaintiff’s action against coach with the argument that to directing players to hit balls towards spectators is not acceptable. The negligence of football club is also rejected in this case as Bolton v Stone 1951 AC 850 case is the best reference in which petitioner was unsuccessful in taking compensations for his minor injuries and court did not ask cricket club to take any measures as hitting the ball over the fence is negligible risk. Even taking preventive measures against risk of striking balls can’t make the game risk free. There could be possibilities of other risks as well for which spectator should be held active and responsible. Local council can’t be held negligent as they support the sporting events for recreation of local communities. However, raising the height of fences might be a sensible precaution to avoid such incidents in future and to remove the conflicts. Conclusion:After detailed discussion on above scenario, it is concluded that spectator P can’t sue anybody against his personal loss of breaking glasses as participants come in the ground with the duty of care towards themselves and acceptance of inherent risks of game. Part B: (1) Issue: Does Ann or Carol have legal rights to sue Bruce under common law duty of negligence?Rule:Common Law Duty of Negligence:In legal terms, negligence means the failure of doing what a reasonable person would have done in those circumstances. The plaintiff must need to establish the duty of care own by defendant towards him. Plaintiff need to establish three things before recovering reimbursement from defendants in duty of negligence:• The defendant own the duty of care towards plaintiff• The defendant breached the duty of care• The property damages or personal injuries of the plaintiff occurred because of breach of duty of care (Hobart Community, 2013)Duty of Care:Duty of care generally arises when a reasonable person is required to have attention, caution and watchful behavior towards other people and public. In other words, defendant should be aware of his conduct which might result in damage or injury of plaintiff. (Donoghue v Stevenson 1932 AC 562)Case: Donoghue v Stevenson 1932 AC 562In this case, Mrs Donoghue is a plaintiff who got a ginger-beer bottle from her friend in in Paisley, Scotland. The opaque and sealed packaging of bottle made its impaction impossible. While drinking the second glass of ginger-beer, Mrs Donoghue noticed the decomposed snail in the bottle. As a result, Mrs Donoghue got gastroenteritis (physical illness) and mental shock. He took an action against the manufacturer Mr. Stevenson for his duty of negligence. The next question is did the defendant breach the duty of care. It can be determined through two factors:The foreseeability of risk: Higher the risk, higher the efforts to avoid it. The reasonable actions of the defendantThe reasonable and foreseeable actions of the defendant towards the plaintiff and his reasonable response in the circumstances would fail the defendant to meet these standards of care and hence Breach of duty of care occurred.  Analysis:In the case scenario, we can determine that Bruce owns the duty of care to its neighbours and all the people who are directly closed and can be affected from the actions of a person are included in the neighbours as explained in case Donoghue v Stevenson (1932). After establishing a relationship of neighbours and owing a duty of care, the next step is did Bruce breach the duty of care. The consideration of factors of breaching duty of care showcase that Bruce was not was not aware about foreseeable risk and plaintiffs Ann and Carol can’t sue the Bruce for his negligence. As explosion was sudden and reasonable possibility of exploding the faulty tank was negligible. Therefore Bruce is not held responsible in breaching the duty of care – Bolton v Stone 1951 AC 850.Conclusion:Bruce holds the duty of care but under such circumstance, he is not liable in breaching the duty of care, therefore Ann and Carol can’t sue Bruce for his duty of negligence under Common Law. Question: 2 Referring only to the common law duty of negligence, explain the basis of any liability in the tort of negligence that Hank’s, Distributor and Mower might have against Ann, Bruce and Carol. Also consider the possibility of any defences in negligence.  Issue: Under tort of negligence, Hank’s, Distributor and Mower have any liability towards against Ann, Bruce and Carol. Rule:The parties involved in the case are Assembler, Distributor, Retailor, Consumer and Neighbours which are named as Mower Ltd., Distributor’s Ltd., Hank’s Hardware, Bruce and his neighbours are Ann and Carol who were closely affected from the product.Manufacturer’s Liability:If the consumer face any damage, loss or harm from defective product, then manufacturers are held responsible for compensations of all physical and financial losses. (Legalvision, 2015) Consideration of:• Existing Duty of care• Breach of Duty of Care• Harms suffered by consumer Manufacturer’s statutory obligations- ACL Pt 5-4:1. The quality of goods is acceptable (s54)2. Goods matches with their disclosed purpose(s55)3. Goods are according to the description (s56)4. Goods are fit in demonstration model (s57)5. Repair and spare parts for the good will be available (s58)6. Good would be complied with any express warrantee. (s59)Analysis:The equipment does not matches with statuary obligations of the manufacturer under ACL (Part 5-4) and it’s clearly explains that manufacturing and selling parties owns the duty of care towards consumers and his neighbours- Donoghue v Stevenson (1932) who were not in direct contract of buyer and seller. But the Lord of House created a new principal of Duty of Care owns by manufacturer to its consumer and all people who are in close relation to the product under definition of neighbours. Bruce, who purchased the lawn mower from the retailer but it didn’t matchwith its intended purpose. Bruce is using the product in front yard of the house; and any fault in the product can harm the pedestrians who is Ann is this scenario. Carol is wife of Bruce who faced damages as well. So manufacturer and selling parties have liability to recover their damagesunder tort of negligence based on Donoghue case. However, the breach of duty of care makes the suppliers liable for recovery of damages ignoring the significant measures of precautions taken by suppliers for checking faulty fuel tank. Because, this negligence has resulted in sever losses.Wyong Shire Council v Shirt (1980) 146 CLR 40:In this case, duty of care was breached and Mr Shirt (plaintiff) got his head struck to the bed of river and got serious injuries. Therefore, council hold the liability for injuries of Mr. Shirt. Defence for manufacturers: Some defences can be used by manufacturer to avoid liability for selling defective product or reduce its burden. • Defendants can accept the risk might let the free from the plaintiff’s liability.• Defendants can prove the carelessness, misuse, or not using the precautionary measures while using the product on behalf of plaintiff which might reduce the risk.  Conclusion:Distribution, retailer and assembly parties are held liable for the damages, loss and injuries faced by Bruce, Carol and Ann because of breaching duty of negligence and defendants can’t get any defence under this scenario as there was no foreseeable risk was involved in using land mower in the front yard.  Question 3: Does Ann, Bruce or Carol have any possible rights under Part 3-5 of ACL against Hank’s, Distributors Ltd. or Mower Ltd.?  Issue: Rights of Ann, Bruce and Carol under ACL Part 3-5 against Hank’s, Distributor and Mower Ltd. Rule:ACL (Part 3-5) explains, Manufacturer’s liability for goods with safety defects ¶7-215If the manufacturer is held responsible for its faulty products then he is liable for compensating the losses or damages. This section ACL explains:? Safety defect cause injury or death of the people (ACL s138) ? Loss of one person because of damage to other person as a result of safety defect(ACL s139) ? The loss or damage of the person due to destruction of another object as a result of safety defect (ACL s140) ? Safety Defects could cause the damages to land, building and fixtures of a person (ACL s141) Analysis:Ann Carol and Bruce high rights for recoveries of their losses from manufacturers of being direct and closer affected people. Bruce is consumer and affected person under (s3) and (s2) respectively. He can get remedies for sure if he got any faulted product for person injuries, financial losses and destruction of fixtures and land. Carol is wife of Bruce and she faced financial losses and mental pain of seeing her husband injured and unemployed. Therefore, she has also right to be recovered for her damages and harms.  Jaensch v Coffey (1984) 155 CLR 549:The plaintiff was wife of policeman who was informed about the sever condition of her husband in road accident and later on she got a psychiatric illness and depression. The defendant was held responsible for all injuries of the plaintiff who did not got injured in road accident but during visits of hospital. Ann was a pedestrian and has no contract with manufacturers and sellers. But based on Donoghue v Stevenson (1932) case, she has the right of compensations from manufacturers. Conclusion:Ann, Bruce and Carol have the rights for compensations from manufacturers under ACL part (3-5) Question 4:?Could Hank’s, Distributors Ltd. or Mower Ltd. raise any possible defences under the ACL?Issue: Possible defences for Hank’s, Distributors Ltd, and Mower Ltd under the ACLRule:Defences for manufacturer’s ¶7-215ACL (s142) provides some possible defences against defective good, which are as follows:• The defect was not found at time of supplying good by the manufacturer (s 142(a));• Defect wad found only because of meeting mandatory standards of goods (s 142(b));• Scientific and technical knowledge at the time while they were supplied from manufacturers were not enabled to detect the fault (s 142 (c)); and• Incorporation of other good parts in another goods and connected with design, packaging and marketing factors (s 142(d)).Analysis:In the above scenario, the manufacturers and sellers can’t get any defence under (s142 (a)), (s142 (b)) and (s142 (d)). Only under (s 142 (c)) can provide defence for manufacturers that ‘the state of technical and scientific knowledge, at the time when products were supplied was not such to uncover the discovery of defects’. Conclusion:The above analysis of defence for manufacturer’s act shows that only (s 142 (c)) can be best defence for manufacturers in this scenario.   References:Bolton v Stone 1951 AC 850 Wyong Shire Council v Shirt (1980) 146 CLR 40:Jaensch v Coffey (1984) 155 CLR 549:Donoghue v Stevenson 1932 AC 562Civil Liability Acts 2002 (4-161)Hobart Community. (2013). Negligence and the Duty of Care. Retrieved from http://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-careLegalvision. (2015, June 22). Is a manufacturer liable for defective goods?Retrieved from https://legalvision.com.au/is-a-manufacturer-liable-for-defective-goods/


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