A Problem Question on Tort Law

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>Question 1 

Yes, Barack is liable to Theo-Paul under the tort of negligence. The negligence part of tort law involves unintentional harm caused by one’s carelessness. Proving negligence entitles the injured plaintiff to being compensation for the injury to their body, property, emotions, financial status, intimate relationships or reputation.

One must prove the resulting harmso as to succeed in a bid tobe compensated in a negligence case. The case of Donoghue v. Stevenson [1932] lays the foundations of the fault principle in common law. The plaintiff, who is May Donoghue, drank a bottle of gingerbeer that was given to her by an acquaintancethathad purchased it personally from a shop. 

The ginger beer was made and sold by a manufacturer who happened to be David Stevenson located in Scotland. While MayDonoghuewas drinking the beer, he stumbled upon the remains of a decomposing snail. She then sued Stevenson though there lacked a relationship of contract since the friend had made the purchase.

This prevented a direct action against Stevenson. However, later on it was allowed due to an implied warranty. This was the warranty of fitness of use of a product in a completely different category of tort. The biblical passages to love thy neighbour was interpreted as the legal requirement to not harm thy neighbour by Lord Atkin who then went on to define a neighbour as any person who is directly affected by an act that onereasonably ought to have them in mind as being so affected when one is committing the acts or in other cases the omissions in question. 

The main point of this case was the extension of the concept of duty of care. The first principle of negligence is that reasonably foreseeable injury must be compensated. In the landmark case in consumer law in Australia of Grant v The Australian Knitting Mills ([1936] A.C.

562), the plaintiff, Dr Grant, become ill as a consequence of wearing woolen underpants that was been manufactured by the defendant milling company trading under the name ‘Australian Knitting Mills Ltd’. The underpants in question contained an excess of a chemical known assulphite. He wore them just after purchase for one entire week without washing them before doing so. The Privy Council held that the defendants were liable to the plaintiff for the injury he suffered. 

In the more recent English case of Caparo v. Dickman [1990] brought to jurisprudence a ‘threefold test’ to establish a duty of care. First, the injury must bereasonably foreseeable in that there must be a link of proximity between theinjured plaintiff and negligent defendant and lastly it must be fair, just as well as reasonable to impose liability upon the defendant.

However, a big portion of the principles are still at the judges’ discretion. This test only act as a guide for the courts to examine the duty of care owed to the plaintiff by defendant. As common law jurisprudence grows, the courts have had to grow out of the ‘threefold test’ established in the case of Caparo v. Dickman [1990] and adapt to the changing times. As a result new elements and principles have had to be developed and others scrapped off but they all have justice as their main inspiration. 

The first element to be proved is that the defendant in this case Barack was truly under a legal duty to act in a particular way towards the plaintiff, Theo-Paul. Barack as a seller of a commodity is under duty to ensure that the commodities he sells are fit for use and are of a merchantable quality. It is important to note that unlike a breach of contract suit, tort cases are not overly hinged upon an agreement between the parties in a suit.

Secondly, it must be proven that the defendant has breached the legal duty he was under by failing to act accordingly. Barack has indeed breached his duty as a seller by failing to make sure that the ladder he sold to Alfonse is fit for use in the manner in which it was designed. This is proved by the fact that Theo-Paul took reasonable care to completely unfold the ladder, fix the spreader arms and then proceeds to use it and unfortunately it falls apart and he falls hitting his head on the concrete thus suffering a serious brain injury. 

Furthermore, it is the first time the ladder was used. This shows that the ladder when sold to Alfonse was faulty. A similar case is that of Priest v Last (1903) the buyer bought a hot-water bottle from a chemist.

His wife used the hot-water bottle and it burst leaving the wife was scalded. Evidence indicated that, the bottle was by nature not meantto be used as a hot-water bottle. The chemist was held liable for negligence. Finally, it is of utmost importance that the plaintiff provesthat he actually suffered physical injury or loss as a direct consequence of the defendant’s breach of the legal duty he was under. Theo-Paul falls as he is using the ladder Barack sold to Alfonse by Barack.

He hits his head on the concrete and suffers brain damage as a result. He ends up being permanently unable to perform mental or physical work of any kind.

He suffers from extreme migraines and has to be heavily sedated to ease his pain, these migraines will last his entire remaining lifetime. He is unable to carry on with his job where he used to earn $400,000 per year thus loses income. 

In addition he is no longer able to play sports. He is left with a terribly poor quality of life. All this is attributed to the faulty ladder.

Foreseeability is another element of negligence. The negligence must be a proximate cause of the injury. This is to say that if one can foresee something bad happening to another as a result of his actions then he should take reasonable measures to break the chain of events that lead to harming another. If a harmful result is unforeseeable then it is considered as being remote thus a claim for damages due to negligence must fail.In this case it would include Barack checking the ladder for faults and testing it before selling it to Alfonse. It is foreseeable that the person who is using the ladder will indeed get injured if the ladder is faulty.

It was a dissenting opinion in the case of Palsgraf v Long Island Rail Road Co. that the defendant had a duty of care towards the plaintiff regardless of foreseeability.

The facts off the case are that the plaintiff, Palsgraf, was injured by scales that were falling as she was on the platform. 

The scales fell because of a commotion. The train conductor went to help a man into a departing train. The man was transporting a package.

The package was full of fireworks. It was shown that the conductor mishandled the passenger’s package and so it fell. The fireworks fell and exploded on the ground. This caused shockwaves through the platform. This made the scales fall.

Palsgraf wasinjured by the falling scales and she then sued the train company which was the employer of the the conductor for negligence. In Australia however, the test of foreseeability was put to use by judges Kirby, Hayne and Callinan in the Perre v Apand[1999] case where plaintiff had a contract to sell potatoes.

The defendant had supplied bad seeds which caused an infection in a land belonging to the plaintiff’s neighbourSparnon. Regulations meant that potatoes planted close to infected land cannot be sold and therefore the plaintiff’s potatoes were not accepted. The Plaintiff was the victim of an economic loss. 

The losses suffered by the Perres were a foreseeable result of Apand’s act of supplying the diseased seeds to them. Factualcausation is also required for a liability of a defendant to be proved, it must be proven that the specific act or omission was the cause of the loss or damage suffered. The most common test is to ask if the injury would have happened without the accused’s breach of duty owed to the injured party.

For Theo-Paul, he would not have gotten injured but for the faulty ladder bought from Barack. 

Question 2 

Theo-Paul can indeed sue under Part 3-5 of the Compensation and Consumer Act 2010. This part is about liability of manufacturers for goods with safety defects.A safety defect is problem in a product that creates a risk of the consumer getting injured. The Act states that the manufacturer of a good is liable to compensate an individual under the conditions that: the manufacturer supplies the goods in trade or commerce, the goods have a safety defect and the individual suffers injuries because of the safety defect.

In this case, Theo-Paul took care to set up the ladder properly before using it and even then, it fell apart as he was using it and consequently he got a serious injury thus demonstrating that the ladder had a safety defect.

The Act also states that the injured individual has the right to bring an action against the manufacturer to recover the amount of the loss or damage that he sufferedas a result of the good’s safety defect. The Act also goes a step further to make the manufacturer liable for any loss or damage suffered by an individual if the good was ordinarily acquired for personal, domestic or household use and is destroyed or damaged because of the safety defect. It should be shown that the person used the destroyed or damaged good for personal, domestic or household use and the person suffered a loss or damage as a result of the destruction or damage to the property.

The ladder did get damaged as Theo-Paul was using it at Alfonse’s home to remove leaves from the gutter and consequentially he got injured. 

Theo-Paul can also sue Barack under Part 2 of division 5-4 of the same Act that is about an action against suppliers of goods. The suit will be based on the grounds that there was a breach of the guarantee as toacceptable quality of the ladder in that it ought to be usable for all the use which such a goodissold for and in this case the ladder was unfit for use. It was defective and unsafe.

It is clear from the facts of the case that he did not cause it to become of unacceptable quality as he was using it in the way in which it was meant to be used. The supplier, Barack, is liable even if the loss or damage did not come about because of a business or professional relationship between him and Theo-Paul

Question 3 

There are different civil remedies that are available in Australian courts under Australian law. Among them is the award of damages where there are limits put in place.[8]The award of damages in essence should make the plaintiff whole again and be sufficient to take the injured back in the position he or she was before negligent act of the defendant, also known as indemnification. Anything that is more than the actual cost of compensation will in effect unlawfully allow a plaintiff to profit from the tort.

Loss of earnings is calculated as the net earnings a plaintiff would have had, if they had not fell victim to the injury which for Theo-Paul is $400,000 a year less the net earnings they have after the injury for which is nothing in his case. 

The court if obliged to consider how much the plaintiff’s ability to earn income is be affected in the future and for how long this will continue. Other factors that need to be taken into account include taxation, discounting of future economic loss and discount for vicissitudes where a court will normally apply a 15%. It is assessed as a lump sum.

From the suit of negligence against Barack, Theo-Paul will receive special damages to cover medical expenses incurred and the loss of earnings to the date of trial. In the award, Theo Paul will also receive General damages to cover the loss of earning capacity in the future, pain and suffering and loss of enjoyment of life.

Question 4

Damages caps can be defined as a set of laws that regulate the amount of non-economic damages that can be awarded to the plaintiff for a case. The term Non-economic damages refer to all other categories of damages such as emotional distress, suffering and pain that are difficult to quantify in monetary form. There are two rationales that have led to the institution of damages caps.

Firstly, damages caps are used to avoid the high costs encountered by traders in doing business which eventually pass on to the consumer by mitigating the liability of service providers. When the cost of insurance for service providers rises, the cost of the service rises too. This then means it will be more costly for the service providers to trade, which ultimately means that consumers will have to pay more to cover these increased costs. Secondly, damage caps are used to discourage frivolous or malicious lawsuits. Courts seekto ensure that the justice system is used only by people who are honestly injured and are seeking compensation.

At times some people will file a law suit for the sole purpose of obtaining a big pay day when they have not suffered. 


  1. Paul Latimer, Australian Business Law 2015, Thirty-fourth Edition, Oxford University Press, pp 125 
  2. Pam Stewart and Anita StuhmckeAustralian Principles of Tort Law,3rd edition, The Federation press, pp 70 
  3. Liability for Defective Products Bill, 1991: Second Stage, SeanadA‰ireann, Vol. 130, 14 November 1991. 
  4. Steven Rares, Striking the Modern Balance Between Freedom of Contract and Consumer Rights, 14th International Association of Consumer Law Conference Sydney, 2 July 2013, Accessed at https://www.fedcourt.gov.au/publications/judges-speeches/justice-rares/rares-j-20130702 
  5. Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 311-324 [10.45]) 
  6. The Compensation and Consumer Act 2010,Part 3-5 
  7. The Compensation and Consumer Act 2010, Part 2 of division 5-4 
  8. Australian Government , Australian Law Reform Commission, Australian remedies: misappropriation and other defaults, Accessed at https://www.alrc.gov.au/publications/alrc-80-legal-risk-international-transactions/8-australian-remedies-misappropriation-an 
  9. Damage Caps, Accessed at https://injury.findlaw.com/accident-injury-law/what-is-a-damages-cap.html#sthash.fSWRnueQ.dpuf 
  10.  IBID Note 3
  11. Ted A. Greve& Associates, How Non-Economic Damages Caps Are Implemented and How Excessive are They?, Accessed at https://www.mydrted.com/non-economic-damages-caps/
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A Problem Question on Tort Law. (2017, Jun 26). Retrieved June 18, 2024 , from

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