Cases & Commentary on Tort-Free-Samples for Students-Myassignment

Question: Advise MacTools Ltd as to its legal position, citing relevant legal authority. Answer: Introduction A tort is the term in law which denotes a civil wrong and one of the forms of tort is negligence. Negligence denotes the contravention of obligation of care by one party which injures or harms the other party (Latimer, 2012, p. 225). In the following parts, an advice has been prepared for MacTools Ltd to make them aware of the liabilities arising out of their negligence and the possibility of reducing the claims by highlighting the contributory negligence of Aurora. The situation which Jessie and the possible case of negligence by her, has also been analyzed. Issue The legal issue in this case revolves around the liability of MacTools arising from their negligence towards Aurora and Jessie. Rule In negligence, the actions of the individual are such that they pose of chance of another getting injured and so a duty of care is owed by them to the other person. When this duty of care is not fulfilled and the other party is injured, a case of negligence is made. In order to establish a case of negligence, there is a need to show the duty of care, the breach, foreseeability, damages, loss not being too remote, and finally the direct causation (Barnett and Harder, 2014, p. 148). For establishing duty of care, the neighbors rule given in the case of Donoghue v Stevenson [1932] AC 562 proves to be of help. In this case, the court held that due to the close relation amongst the manufacturer and consumer, there was a possibility of the actions of the former affecting the latter. And due to this reason, the former was asked to compensate the latter for the dead snail found in the bottle, which resulted in the latters sickness (E-Law Resources, 2017). Next step is to show that this duty of care was breached. In Paris v Stepney Borough Council [1951] AC 367, the plaintiff was not provided the safety gear when the council knew that the work involved the need of safety gears. Due to the injury caused to the plaintiff, he was blinded and so, the duty was held to be breached by the court as the safety gear was not provided (Swarb, 2017). There is also a need for the damage to be foreseeable for a claim to be made. This means that there had to be a chance of the harm to be caused. The foreseeability of loss depends upon the view of a prudent person (Clark, 2010, p. 306). The damages cannot be too remote and have to be significant for the damages to be awarded to the other party (McKendrick and Liu, 2015, p. 468). This means that the injury has to be such that was predictable and which causes some major loss to the other party. The last requirement is to show that the injury was a direct result of the negligence of the party which owed the duty. Once all of these elements come together, the harmed party can make a claim of negligence and claim compensation for their injuries (Gibson and Fraser, 2014, p. 170). A leading defense in cases of negligence is contributory negligence. Under this defense, the injured party does something which contributes towards the harm sustained by them. In other words, their actions are such which result in the injury being sustained. And in such cases, upon the discretion of the court, the amount of damages ordered to be paid to the plaintiff is brought down by the magnitude of their contribution (Legal Services Commission, 2016). Davies v Swan Motor Co [1949] 2 KB 291 was such a case where the plaintiff was deemed to have been a contributor towards their injuries (Harvey and Marston, 2009, p. 244). Application The facts of the case have to be analyzed to prove the negligence of MacTools Ltd. MacTools Ltd was the manufacturer of the product which was used by the consumer, i.e., Aurora. The purchase of product by Mulan would not evade the liability of MacTools Ltd on the basis of Donoghue v Stevenson. In this case, the relationship of the parties had to be reason for one party owing a duty of care towards another. Here also, the relationship between MacTools Ltd and Aurora was such that the actions of MacTools Ltd could injure Aurora. And due to the proximity of relationship between the two, a duty of care was owed to Aurora by MacTools Ltd. To show the contravention of this duty, the failure of MacTools Ltd would prove to be of help. This is because the company, just to not undergo the cost of recalling the drills, decided not to do anything about the possibility of a short circuit. Even though this chance was very less, it was still a possibility, which made the incident reasonably foreseeable. And a prudent person would have taken steps to avoid such incident. By not taking the requisite step, the duty of care which MacTools Ltd owed to Aurora was breached. The loss of eye is a substantial injury as per Paris v Stepney Borough Council and the breach of duty of care would make MacTools Ltd liable to compensate Aurora. Though, there was a clear contribution in this injury by Aurora. This is evident from her ignoring the safety warning which was issued by the company which was contained on the drill. She failed to read this warning, and this is her fault and not the fault of MacTools Ltd. So, for the damages she suffered, her contributory negligence would result in the amount being decreased on the basis of Davies v Swan Motor Co. A claim of negligence by Jessie also has to be evaluated. In this case, MacTools Ltd could not have foreseen that due to the malfunction of drill, the power would go off and the vase of Jessie would be shattered. There was a lack of foreseeability to take precautions against it. Also, a duty of care was not owed by MacTools Ltd to Jessie as there was no proximity in their relationship. Hence, a duty of care was not owed by MacTools Ltd to Jessie. Conclusion To conclude, MacTools Ltd would be liable to compensate Aurora for her losses arising from their negligence and this amount would be reduced by the amount decided by the court for Auroras contributory negligence. However, MacTools Ltd would not have to compensate Jessie as a case of negligence was not present here. References Barnett, K., and Harder, S. (2014). Remedies in Australian Private Law, Victoria: Cambridge University Press, p. 148. Clark, E. (2010). Cyber Law in Australia, The Netherlands: Kluwer Law International, p. 306. E-Law Resources. (2017). Donoghue v Stevenson [1932] AC 562 House of Lords. Retrieved from: https://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php Gibson, A., and Fraser, D. (2014). Business Law 2014, 8th ed, Melbourne: Pearson Education Australia, p. 170. Harvey, B., and Marston, J. (2009). Cases and Commentary on Tort, 6th ed, New York: Oxford University Press, p. 244. Latimer, P. (2012). Australian Business Law 2012, 31st ed, Sydney, NSW: CCH Australia Limited, p. 225. Legal Services Commission. (2016). Negligence. Retrieved from: https://www.lawhandbook.sa.gov.au/ch01s05.php McKendrick, W., and Liu, Q. (2015). Contract Law: Australian Edition, London: Palgrave Macmillan, p. 468. Swarb. (2017). Paris v Stepney Borough Council: HL 13 Dec 1950. Retrieved from: https://swarb.co.uk/paris-v-stepney-borough-council-hl-13-dec-1950/