Assignment Commercial Law
The case is of Rahul and Priya, where Rahul visited a large retail store, Baby’s R Us to buy baby cot for their new born child. The sales assistant, William, suggested two cots, Lullaby Wonder as sold and Sleep Sound as portable as it can easily assembled and disassembled.
This resulted in buying of Sleep Sound which on use collapsed, and folded and trapped their two months old child which was taken to hospital for the fear of injury and Priya was also treated for shock caused by this incident at the hospital.
The report presents advice to Rahul and Priya to sue the supplier on the rights pertaining to the tort of negligence and also advised to them to sue under Part 3-5 of the Australian Consumer Law.
1. Advise to Priya and Rahul on rights they may have to sue in the tort of negligence
Issue: The issue is towards the retail store to sue by Rahul and Priya in the tort of negligence for the selling the defective products due to its use of may cause harm to the new born child, Aaru.
Rule and Application:
In this case, the Australian common law, Australian Consumer Law, tort law, and the product liability law were applied.
It is advised to Priya and Rahul that that tort is a legal wrong that is committed by one entity against another and the awards of damage is the common remedy for tort. The tort provides protection to entity for unlawful demeanor that also gives right to claimant to sue in tort of negligence to seek out compensation from for the damage, injury or loss.
In Australian common law, a negligence tort resulting in actual damages, loss or harm, results in legal liability for the person involved in tortious act.
Priya and Rahul have right under the Australian common law and tort law to sue the retail store for new born baby cot, Sleep Sound for the purchase of defective product and the use of that product have caused harm to their child, Aaru as this can be due to a defect present in the manufacturing or in the design of the baby cot.
Thus, Priya and Rahul have rights to sue the retail store, Baby’s R Us for selling this product to Rahul even though it was not involved in the design and manufacture of the baby cot.
Under the Australian Consumer Law, section 18 of the ACL there is also right to make a claim on misleading conduct by seller, their sales assistant, William (AustLII, 2018).
In Australian law, the tort of negligence is a civil wrong and it also means breach of legal duty to take care by defendant who has led to harm, damages, or loss to claimant. It is advised to them that under the tort law for negligence, the claimants need to provide the different elements of negligence so make the dependent held liable for the negligence action/ behavior.
One of the negligence elements is duty where it is important to establish that defendant owned a duty of care to the claimant (Stychin, 2012). The Australian law recognizes the duty exist and arise among the defendant and plaintiff to act in a manner that is desirable as a reasonable person (Stychin, 2012).
Under this element, it is advised that there essential to determine whether or not the defendant owned a duty towards the new born child.
Another element is breach of duty, the claimant has right to prove that defendant has breached duty towards the claimant/ plaintiff (McDonald, 2005). The breach of duty means that the defendant has failed to exercise reasonable care to fulfill their duty towards the customers.
In this, it is determined that whether or not the retail store personnel has exercised reasonable care in suggesting the baby cot for new born child. Another key element is damages, which can be physical injury and economic loss to a person due to negligence action of the defendant because of failure to exercise reasonable care to person with whom duty of care is owned.
Thus, under this element, it is important to establish that plaintiff suffered damage (physical injury to new born child) as a result of breach of duty. Here, reasonable foreseeability is seen as a condition that is required under the tort law that points on the party consequences of an action that can rationally result in the injury or damage (Zipursky, 2009).
thus, the principle of reasonable foreseeability towards tort of negligence can be referred which the retail stores at the time of selling the baby cot for new born can reasonably foresee that it is prone to cause a damage to the new born and still continues to sell points to commit of tort of negligence by retail store seller.
The case of Garvey v. A. I. Namm, 136 App. Div. 815 can be referred where department store was held negligence for the damages for a personal injury alleged to plaintiff toward the failure to use reasonable care in the product inspection to discover defects before giving to plaintiff which can be identified by the use of reasonable act by the retailer (Casetext, 2018).
It is also advised to Rahul and Priya that the manufacture and retailer holds liability for the sold baby cot product in the state for defective products and are liable for claim and proceedings and as these parties in the manufacture and distribution process respectively.
Thus, Rahul and Priya have right to attempt to sue them for their defective product. Under the Australian Consumer Law, Rahul as the buyer of the baby cot purchaser has right to seek for product replacement or repair and can also seek for money refund but that will based on the seriousness of the damage (Barker, 2000).
It is also advised that there is right towards the product liability system in strict liability torts (Klerman, 2011) for Priya and Rahul, as buyer which is concerned with the damage being caused to their new born child from the use of the defective product and liability of the retail store towards it.
Thus, it is advised to Priya and Rahul that under the common law for products liability, they can make claim for the damage suffered person on the base of common law tort of negligence.
Under the Australian Consumer Law, there are penalties per breach of the Australian Consumer Law which includes unconscionable conduct and supply of consumer goods that do not comply with safety standards (Barker, 2000). Under section 54 of Australian Consumer Law, there are statutory guarantees such as an assurance to supply consumer goods that are of standard quality.
Thus, under part 3- 5 of Australian Consumer Law, they have right to take action against the defective product in regards to safety defect. It is also advised that Rahul and Priya have right to sue and make damage claim for retail store under the Wrongs Act which is a State statutory law in Victoria as well as under the Australian Consumer Law where the Federal jurisdiction would apply.
Conclusion: It be concluded that Rahul and Priya have rights under the Australian Consumer Law to take action aging the supplied defective baby cot product for their new born child and to sue the retail store in tort of negligence to seek claim for damage by seller due to breach of duty in failure to provide a duty owed to the buyer party.
Issue: The issue is to provide advice to Rahul and Priya to sue manufacturer and supplier under Part 3-5 of the ACL.
Rule and Application: Here, the Australian Consumer Law was applied.
Part 3 of ACL explain on unfair practices, consumer transactions, information standards and the manufacturer liability of for goods with safety defects.
The part 3-5 of the Australian Consumer law, provide an adequate guidance for the manufacturer, importer and the distributor of the product towards safety of consumers. It is advised to Priya and Rahul that legislative invention for manufacturer’s liability can be taken under part 3 -5 of the Australian consumer law towards the claim for personal injury.
Under this, a strict liability is imposed on the manufacturer as well as the importer of the products that are defective that can lead to personal injury or damage to property. Part 3-5 of the ACL provides a consumer to take remedy action against the retailer who is the immediate suppliers of products/ goods.
To hold liability towards the suppliers of products under the Part 3-5 of the ACL, the products must be defective to be legally responsible (Corones, 2011).
The section 138 of ACL deals with the compensation claim for personal injury where the person has suffered injury due to defect in product and liability falls towards manufacturer (Corones, 2011). It is advised that the manufacturer is liable of the baby cot when the new born suffered damage or loss from the product that is defective considering section 138.
To establish manufacturer liability, Priya and Rahul need to prove the defect existence in Sleep Sound and injury suffered to new born baby due to the defect.
Also, referring to the section 139, the manufacturer can also be held liable as a person has suffered damage (shock to Priya) in case when the baby has injury due to the product defect. Also, under section 9 (1) of the ACL, the defective good is one when its safety is entitled to expect by public and not by a particular person (Corones, 2011).
Also, in regards to the defective concept, it is advised that under the Part 3–5, the plaintiff has right as well as the responsibility of proving that the baby cot product, Sleep Sound was defective and also establish that the baby has suffered damage because of the product defect.
It is advised to the plaintiff that they need to establish and show a causal link to sue under Part 3-5 of the ACL. Here, the case of Peterson v Merke Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1 can be referred where the court was not certain to find a causal link among the injury to Mr. Peterson and defect (from taking Vioxx) as the person has heart problems and other health conditions (Faunce, 2010).
The manufacturer in such case can present that injury was caused due to buyer/ customer own conduct thus, can lead to situation of contributory negligence.
Thus, it can be advised to Rahul and Priya that to sue under Part 3-5 of the ACL considering the manufacturer liability as well as of importer for goods that has safety defect with right of getting compensation for the damage/ loss caused by the use of defective product.
Under Part 3-5 of the ACL, the manufacturer and importer would have statutory liability to provide compensation to person suffering injury as a result of their product and also put aside the issue related with contract, breach of duty and duty of care existence under the tort law.
It is advised that they can sue the manufacturers as well as the importer (Lars Aaberg) and supplier (retailer) of the baby cot, Sleep Sound product under the Part 3-5 of the ACL. These can be sued on the basis of defect on the goods, i.e. Sleep Sound baby cot product thus, can take action against the manufacturers of Sleep Sound product with safety defects as well as defective goods actions.
Under Division 2 – Defective goods actions, section 143 provides time to commence the defective goods actions within 3 year time once the person happen to be aware of the loss or damage or about the safety defect of the product and also become aware of the indentify of the entity that was responsible for the manufacture of that product (AustLII, 2018).
Thus, it is advised to Priya and Rahul that they can sue and take defective goods actions at any time within a period of 3 years as they become aware of the suspected harm/ injury to their baby, the safety defect of the Sound Sleep baby cot and gain awareness on the identity of the manufacturer.
In addition to this, under section 147 that is concerned with an unidentified manufacturer, under this, the person can introduce a defective goods action and no knowledge of manufacturer identity can give a written notice to the supplier of the product that is known to the person and can request the supplier to provide details to indentify the manufacturer of the product (Corones, 2011).
Thus, on basis of section 147 of ACL, Rahul and Priya can sue to supplier (Baby’s R Us retailer) of the Sound Sleep product and can ask the supplier to give particular to identify the manufacturer where the supplier fails to provide the required information. Thus, on basis of section 147, the plaintiff sues the supplier and seeks compensation for the damage by the supplier of the baby cot product.
Conclusion: Thus, it can be concluded that Priya and Rahul can sue direct manufacturer along with importer and supplier of the product with safety defect under Part 3-5 of the ACL for personal injury caused due to use of the defective product.
AustLII. 2018. COMPETITION AND CONSUMER ACT 2010 – SCHEDULE 2. [Online] Available at: http://classic.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html (accessed 22 May 2019).
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