Application Of Contract And Tort Law To Personal Injury Essay.

Issues and Related Rules

Discuss about the Business Law for IRAC Methods.

Whether Jonas can sue his friend for seeking compensation for the harm incurred upon him under Contract law or Negligence law?

Contract Law

Tort Law- Negligence and Contributory negligence

A contract has been regarded as an agreement entered among two persons. In that agreement there must be an offer and acceptance, intent to create a lawfully binding agreement, a consideration, lawful capacity of individuals to enter in a contract and a proper understanding and consent. The above mentioned elements constitute an agreement to be enforceable between parties if these elements would not be there than there would not be any contract. Similarly, in this case there was no agreement so contract law would not be applicable for this situation.

As per the law of tort, Negligence has been defined as a failure in law in order to do what a reasonable individual would have done in the situations (Legal Aid, 2016). If the plaintiff wants to establish the liability of the defendant than he has to prove three things:

That the defendant owed the applicant an obligation of concern;

That the defendant violated that obligation of concern; and

Private harm or land injury by the plaintiff as a result of that contravention.

Obligation of concern has been defined as the situations and associations under which the act has been distinguished as giving rise to a lawful obligation to receive care. Consequently, it was essential for the applicant to institute that the defendant owed them a obligation of concern. The subsistence of an obligation of concern for a private harm and land injury was originally decided by the neighbor test in the matter of Donoghue v Stevenson. In this matter it was held that for establishing an obligation of concern under the neighbor test it can be spit up into two requirements:

Reasonable foresight of danger; and association of closeness. Therefore, it can be said that Jonas friend would be liable for negligence as it was his duty to warn Jonas before using the said charger as it did not had any safety mark on it.

At the same time the element of contributory negligence was present in this case as contributory negligence has been regarded as an act where the plaintiff fails to take reasonable care for his own safety or loss incurred. In this case, same thing happened as the injury occurred due to the carelessness of the plaintiff as he was talking on phone while his phone was charging and although there was not safety mark; but it was well known by all the users that it has been highly restricted to use phone while charging.

Application of Rules to Issues

Conclusion

Therefore, it has been concluded that though Jonas’s friend would be liable for negligence but Jonas would also be liable for the same as it was his own duty also for using the charger in the right way. As it was foreseen and well known fact known by Jonas that the phones should not be used while they have been put for charge. 

Whether Jonas could bring an claim against the proprietor of the café for carelessness if the damage happened while using a non-compliant charger that was offered by an internet café?

Law of Tort- Negligence and Contributory Negligence

In this matter, the owner of the café would be liable for the act of negligence as the injury was caused by using the non-complaint charger that was supplied by the café. The similar case of negligence was held long back ago in which a test was established i.e. neighbor test. It stated that an individual should take sensible care in order to evade such acts which can be rationally seen as to cause damage to the neighbor. The Judge outlined the parameters of the obligation of concern  in such cases stating that a person should take prudent care in order to avoid any act which a person can reasonable foresee  that would likely to harm the person’s neighbor. The neighbor under law has been regarded as the individual who was personally and honestly exaggerated by another person’s act that he ought to have reasonably taken in deliberation as being exaggerated when he was unswerving his mind to the said acts which were called in question.

The state safety authorities if Australia has warned the consumers on the danger of using cheap, non- approved USB chargers after the demise of women who died in Australia. It was established in this case that the lady died as a result of electrocution which occurred and burnt her ears and chest (Fair Trading, 2014). So, the NSW Fair Trading Commissioner made an announcement by warning the consumers of the potential risk which was associated with such type of cheap chargers. The commissioner stated that these devices pose a severe danger of electrocution or fire and because of this the fair trading investigators had detached from sale a number if illegal and non- complaint USB chargers. And also it has been affirmed by the Commissioner that the corporations or traders who were selling such unapproved electrical devices could be fined with the fine up to $ 875,000 and $87,500 respectively. The said devices were restricted as these illegal devices did not meet the indispensable security necessities of Australian Standards and were often built of low-grade plastics and other insulations supplies.

Conclusion

Conclusion

Therefore, it can be concluded that the owner of the café would be liable for the act of negligence as he was making use of such type of non- complaint charger till now even after the Fair Trading Commissioner has asked the investigators to restrict the sale and use of such chargers. But at the same time Jonas would also be liable as he was using the charger even after the clear statement which was clearly stated by the Commissioner by warning the consumers to take precautionary steps. Such act occurred earlier also where a lady was using phone while it was on charge. But Jonas did the same thing even after foreseeing the said act or knowing the consequences of the same. So it would amount to contributory negligence of both the parties. 

Whether Jonas could bring a claim for negligent misrepresentation against the proprietor of the shop if the damage happened whilst using a non-compliant USB that was purchased from an electrical supplies shop or not?

Law of Tort and Contract – Negligent Misrepresentation

In this situation, the shopkeeper would be liable for the act of negligent misrepresentation. Since, the law of Contract, misrepresentation affirms to a false declaration of fact which has been made by one party to another, which has the consequence of inducing the party into such agreement. Negligent Misrepresentation has been regarded as one of the kind of misrepresentation which occurs in different situations. It occurs when the defendant inaccurately makes a demonstration while having no sensible basis to believe it to be correct (Ramensky, 2016). Similar, but different to a claim for actionable misrepresentation were the claims for negligent misrepresentation. It can give rise to a physical or financial loss or injury.  In order to accomplish something in a allegation for negligent misstatement the applicant must set up that a fake statement was made by the maker of the statement.

 In Shaddock v Parramatta City Council the responsibility was absolute for giving data as well as recommendation and it was stated that "the individual giving the data to other individual whom he knows would rely on it in situations where it was sensible for him to do so, was under an obligation to work out sensible concern that the data was accurate." It was only a case of time before the government behaved in a way to give legislative shield to customers for falsification in the appearance of the Trade Practices Act 1974 for the safety of organizations performing in business and retail and later the Fair Trading Act 1987 was enacted for granting protection to the non-corporate traders.

Similarly, Section 2 of the Trade Practices Act affords that the aim of this act was to improve the wellbeing of the citizens by the encouragement of struggle and fair dealing with enactment of provisions for the purpose of protecting the consumers." S 52 (1) of the Trade Practices Act, "An organization shall not, in business or commerce, employ in any conduct that would be confusing or illusory or was likely to delude or mislead the consumers."  S 42 of the Fair Trading Act, 1987 was in indistinguishable stipulations and has been applicable on the non-corporate dealers.

Conclusion

Therefore, it has been concluded that the shopkeeper would be liable for making compensation for the loss incurred upon Jonas as when he asked prior to the purchase that whether the charger was complaint with the Australian Standards then the shopkeeper said yes. Although, he very well knew that the charger was faulty and can harm the person then also he lied. The shopkeeper should have told the purchaser about the charger by not misleading the characteristics if the charger. Also, as per the principle of Caveat emptor which means let the buyer aware it can be concluded that as it has been believed that the buyer have less knowledge about the product so it has been the duty of the seller to tell the buyer about the truthfulness of the product. Therefore, the shop keeper would be liable for the act of misrepresentation. 

References: 

Fair Trading. (2014) Safety alert - USB style chargers. [Online]  NSW Government. Available from: https://www.fairtrading.nsw.gov.au/ftw/About_us/News_and_events/Media_releases/2014_media_releases/20140626_safety_alert_usb_style.page? [Accessed on 27/09/16]

Legal Aid.(2016)Negligence.[Online] Western Australia.Available from:
https://www.legalaid.wa.gov.au/Informationaboutthelaw/Birthlifeanddeath/Personalinjury/Pages/Negligence.aspx [Accessed on 27/09/16]

Ramensky, G. (2016) Fraud and negligence.[Online] Find Law Australia. Available from: https://www.findlaw.com.au/articles/134/fraud-and-negligence.aspx [Accessed on 27/09/16]