Provisions of Australian Consumer Law and Law of Tort
There are two issues which are involved in this case. The primary issue which is whether Ann has any claim against the Salami manufacturer under Section 54 and 138 of the Australian Consumer Law. The secondary issue is whether Ann has a right against the Supermarket Pty Ltd.
The issues in this case can be solved by discussing the provisions of Australian Consumer Law and the Law of Tort. Consumer law ensures that products or goods which are sold in the market, should be supplied in the market if it is safe and free from minor defects and acceptable in the marketing. Section 54 of Competition and Consumer Act 2010 requires that goods should be of acceptable quality. The Section provides that there is a guarantee that a good is of an acceptable quality if a person supplies the good to a consumer in trade or commerce. The Section further explains the acceptable standard of quality which provides that a good should be fir for all purposes for which that kind of goods are supplied. In this respect, a good should be regarded to have acceptable quality, if the consumer is acquainted about the representation or any other relevant circumstances made of the good by the supplier or manufacturer. Clause 4 of this Section provides that if a good, which is supplied to a consumer, does not meet acceptable quality, the reason for not being able to comply with the provision should be drawn to the attention of the consumer. In the famous case ACCC v Valve Corporation (No 3) [2016] FCA 106 it was held by the Court that Section 54 of the Australian Consumer Law should be applied in a the case. In Norton v Hervery Motors Ltd, it was held by the District Court that acceptable quality of a good should be determined by reasonable consumer test regard to the factors listed in Section 7(1).
Additionally, Section 138 of the Competition and Consumer Act 2010 provided that an action can be taken against the manufacturer for the liability of any damage or loss suffered by a person for a good with safety defect. It is provided that a manufacturer of good shall be liable to make compensation to a person if the good has a safety defect in it and the reason for suffering injuries by the individual is the result of safety defects. The individual could recover the damage he has suffered, from the manufacturer, if the safety defect was the neglect or wrongful act of the manufacturer. The Australian Consumer Law has conferred powers upon ACCC to issue notices requiring the production of information or documents. Civil penalties for the breach of the provision can extend up to A$220,000 for an individual for every contravention.
Application
Negligent act of the manufacturer can be described by analysing the famous case of Donoghue v. Stevenson [1932] All ER 1, where it was established that negligence is the act of causing careless injury to a person or a property. Where a person fails to oblige with the duty to care he owes to another person, he shall be deemed to have committed negligence. The individual should be liable for foreseeable injury which the plaintiff may have suffered because of his act.
In the landmark case of Bolton v Stone [1951] AC 850 the likelihood of causing harm to a person was analysed by the Court. If the injury suffered by the plaintiff was foreseeable by a reasonable person, the defendant shall be liable for causing breach of duty.
In this case, there were negligence on the part of Smallgoods Pty. Ltd. The company manufactures processed meat products, which itself requires that they should be careful while making a particular batch of products available to the market. Every product requires to undergo bacteria treatment process. The product which Ann purchased and consumed was not put through the bacteria treatment process and was contaminated. It was the negligence of the Smallgoods Pty. Ltd. that they did not perform their duty to care and put through the packaging for bacteria treatment process, which resulted into ill health of Ann. The breach of duty to care was also contravening the Section 54 of the Competition and Consumer Act 2010. The salami product failed to meet the consumer guarantee regarding product safety.
Finally as a breach of duty to care and supply goods of acceptable quality has been identified in the case study, the manufacturer that is the Smallgoods Pty. Ltd. can be held liable as per the Section 138 of the Competition and Consumer Act 2010. Smallgoods Pty. Ltd. sold the unacceptable quality of salami which made Ann suffer serious health issues. It is the duty of the manufacturer that if a product does not meet the acceptable quality, the reason should be communicated to the consumer. Smallgoods Pty. Ltd. failed to do so as well. Hence, the causation is satisfied and damages can be claimed from Smallgoods Pty. Ltd.
The conclusion can be made thereafter observing the situation had Smallgoods Pty. Ltd is liable for being negligent to supply goods which are of acceptable quality.
In this present case, the involved issue is to determine whether Ann has any right against the Supermarkets Pty. Ltd.
Relevant Laws
Under the Australian Consumer Law, retailer can be held directly liable for the loss or damages that a consumer has suffered from a good which contravenes consumer guarantee provided under Sec 54 of the Competition and Consumer Act 2010. If any damage is suffered by a consumer, Australian Consumer Law requires that the damage should be reported to the manufacturer. Section 54 of the Competition and Consumer Act 2010 applies to the retailer or seller also as they have a duty towards the consumer to provide goods which are of acceptable quality. The Australian Consumer Law shall consider the way in which the product is being marketed, its packaging and the warnings or instructions accompanying the good while determining the safety of a good. The seller also owe a duty of care to the consumer. If the consumer guarantee is not met, the seller shall be liable to any damages caused to a person. It is provided under Sec 208 of the Competition and Consumer Act 2010 that if the contravention to product safety was due to the act of any other person in spite of performing due diligence to avoid such incident by the defendant, the defendant cannot be held liable for any injury or damage caused to the plaintiff.
It was established in the case of Zuvela v Geiger [2007] WASCA 138 that a reasonable purchaser would expect a good to be o acceptable quality, if it is being sold otherwise than in an auction. Any defects in the good should be made known to the consumer.
The batch of salami which was contaminated was not the responsibility of the Supermarkets Pty. Ltd. The seller of a product is not expected to check the bacterial contamination of a product. The processed meat is put through a bacteria treatment process which was the sole duty of Smallgoods Pty. Ltd. The injury which Ann suffered was not foreseen by Supermarkets. It was held in the case of Cork v Kirby Maclean [1952] 2 ALL ER 402 that, it needs to be proved in a case that the injury was the liability of alleged party and could have been avoided by any act or omission of the party They did not owe any duty of care regarding the bacteria treatment check to the consumers. The product had not expired when Ann purchased the product from the store. In this case, there was a contributory negligence of Ann, as she did not look at the ‘use by’ date, which she was expected to take a look at. Supermarket cannot be held liable in this case, as they did not have an information about that particular batch not to be undergone the treatment process. When it was made available in their store to the consumer, the product was within due date. They would have been held liable if the injury caused to Ann was foreseeable by the Supermarket. There was no breach of duty on their part as they did not owe any duty to check whether a product is contaminated or not. Additionally, it was the fault of Ann herself that she used the salami after it was expired. Though the sign that Supermarket Pty. Ltd. had regarding limiting their liability is not a valid ground for escaping the liability of a seller, the injury which Ann had suffered was not for the negligence of Supermarket. Ann cannot claim any damages from Supermarket.
Conclusion
Therefore, from the above discussion, it can be concluded that, the injury caused to Ann was the result of negligent act of Smallgoods Pty. Ltd. and Ann. Here, Supermarket Pty. Ltd. cannot be held liable under the ACL.
The issue in this situation is to derive Shanti’s rights to claim compensation for the damages suffered by her from the factory under the rules relating to the tort of negligence.
The causing of harm to another person to whom a duty of care is owed due to not acting in a reasonable way is called negligence under tort law. Three elements are required to assess the existence of negligence. They are categorised as duty of care, breach of duty and causation. Further to analyze damages the element of remoteness also has to be taken into consideration. These elements are discussed below.
The notion of this element had been brought to existence through the landmark case of Donoghue v. Stevenson [1932] All ER 1. The provisions of the civil liability Act 2002 with respect to duty of care is interpreted in the light of common law rulings. The neighbour principle was provided by the case. The principle makes any person liable whose failure to take reasonable care may cause harm to another person. This may be proved under the provisions of the foreseeability test or proximity test. The proximity of the defendant and the plaintiff is analyzed through the tests.
In the case of Govier v UnitingCare Community [2017] QCA 12, the court expressly stated that the employer has a duty of care to the employees with respect to the workplace. In case the employees are injured in the work place the employer has to take liability if it is because of their negligence.
The breach element is taken into consideration after duty of care. The element is analyzed through the use of an “objective test”. The objective test has been discussed in the case of Bolton v. Stone [1951] AC 850. In this case the court stated that a person who is having a duty of care must act like a reasonable person to prevent the harm. The reasonable person would take into consideration elements like probability and seriousness of injury along with the additional Healthcare burden. These elements were analyzed and applied in the case of Paris v. Stepney Borough Council [1951] AC 367.
The final factor of establishing negligence is causation. This element is analyzed by the “but for” test. The test had been used in the case of Cork v Kirby Maclean [1952] 2 ALL ER 402. The test signifies that the injury to which the plaintiff have been subjected to must result out of the second element which is the breach. This means that the injury must be a sole result of the breach. The existence of the injury without the breach would nullify a claim for negligence.
Under this element the courts analyze the fact that whether the injury which has been suffered is too remote to be compensated. A damage which may be too remote for a reasonable person to foresee is not allowed to be compensated under the rules of negligence. Only those damages which have to capacity of being foreseen reasonably would be compensated by the courts as per the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388.
Damages are provided to the plaintiff in case negligence is established for the damages incurred because of the careful act.
Shanti has been working for the factory and parks her car in a place owned by the factor. This would mean that an authorized person who parks his car i that place would be owed with a duty of care. This is because the neighbour principle makes any person liable whose failure to take reasonable care may cause harm to another person. In addition, the case of Govier v UnitingCare Community also provided that if the employees are injured in the workplace the employer has to take liability for injury. Therefore the factor owed a duty of care to Shanti.
As the factory owes a duty of care to Shanti, the further analysis is required in relation to the second element of breach of duty. The objective test states that a person who is having a duty of care must act like a reasonable person to prevent the harm. The reasonable person would take into consideration elements like probability and seriousness of injury along with the additional care burden. Therefore, in this given case it needs to be seen that whether the factory manager has acted in a reasonable way with respect to the injury caused to Shanti. This has to be done by replacing the manager with a reasonable person.
Probability – it is evident that where there is a failure to take reasonable care in case of the parking lot, there are chances that injury may occur to the car owners, cars or other property. This is because it has been provided by the facts that there have been various instances of car theft reports in relation to parking lot.
Seriousness- The seriousness of injury which may be caused to the car owners, cars or other property is not in doubt. This is because it is event that people can be seriously injured in terms of physical injury during a car theft.
Burden of precautions – in this case all Shanti had proposed for was to enhance a few security measures for the par such as increased lights as it was dark. It was not much of a burden.
Thus a reasonable person in the position of the manager would have taken extra care as the security guard was far from people to access and the parking lot was dark in the light of probability and seriousness of injury. The duty of care is breached.
Causation is also evidently present in relation to the “but for” test application as thief would not have come and injure Shanti in case there were increased security measures.
Shanti has suffered physical damages as well as loss of employment and both the damages are reasonably foreseeable and thus she can claim both under the law of negligence from the factory.
Conclusion
The factory manager has been negligent and Shanti has to be compensated by the factory for the losses incurred by her under negligence.
References
ACCC v Valve Corporation (No 3) [2016] FCA 106
Bolton v Stone [1951] AC 850
Competition and Consumer Act 2010
Cork v Kirby Maclean [1952] 2 ALL ER 402
Cork v Kirby Maclean [1952] 2 ALL ER 402
Donoghue v. Stevenson [1932] All ER 1
Govier v UnitingCare Community [2017] QCA 12
Norton v Hervery Motors Ltd,
Overseas Tankship (UK) Ltd v Morts Dock & Civil Engineering Co Ltd [1961] AC 388
Paris v. Stepney Borough Council [1951] AC 36
Zuvela v Geiger [2007] WASCA 138
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