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Question:

Discuss about the Civil Liabilities Act.

 

Answer:

While playing golf in a weekend golf competition, John is hit by a golf ball shot by Peter. The regrettable act happened while a lousy shot from Peter failed to reach target and hit John. In normal circumstances, Peter would have been required to call out ‘fore’ rather than the ‘watch out John’ phrase that he said. The Golf club, on the other hand, had put an exclusion clause at the back of the scorecard which had been handed to Allan. The Exclusion clause was in written in some small writing.
 
In analyzing the culpability of the Golf Club and Peter as an individual, it is essential to have an overview of the essential elements of liability as provided for in case law and statute. In the case of Tame v State of New South Wales[1], much of the suits and corresponding issues that face defendants in matters of liability is the plague of misplaced and falsely regarded reasonable ‘foreseeability’. This means that most defendants previously had little expectation that they could be sued for some liabilities. This means that the Golf Club, in this context, had little expectation of such an incident. Even if they had some remote idea about it, they had put it in writing- but sadly in small writing. To make it worse, the writing was at the back of the scorecard. Such a warning would have instead been displayed at some conspicuous place where each competition participant would easily read and recognize[2]. As a result, the Club is liable for the injury suffered by John.
 
In the case of Nagle v Rottnest Island Authority[3], a public authority had been sued for negligence. A diver had supposedly not been warned of the presence for rock under the water in the swimming area at Rottnest Basin. Inasmuch as it is commonplace knowledge of the rocks – especially to the local residents- the High Court still found it an act of negligence on the part of the concerned public authority to have failed to install and display warnings to that effect.
 
Nevertheless, John- while on the quest to sue the Golf Club- should be wary of the usual pitfalls that befall plaintiffs who fail to adequately prove their point beyond reasonable doubt. In the case of Woods v Multi-Sport Holdings Pty Ltd[4], a claim for damages by a cricket sports participant was dismissed. The claim was premised n the argument that the owner of venue of the game had acted negligently by failing to warn participants that by participating, they were exposing themselves to possible eye injury[5]. The High Court held that by opting to participate in sporting activities, participants are naturally expected to be aware of the corresponding dangers and risks. As a result, the suit was thrown out.
 
Similarly, the High Court, in Commissioner of Main Roads v Jones[6] ruled that as is the case with sportsmen and the associated risks of their various endeavors, so is the case with drivers who drive in the remote locations in Western Australia. The roads in these places were unfenced and drivers would logically be expected to be wary of straying animals. Armed with this, drivers would then be expected to drive with due cautiousness without which damages and injuries resulting there from would be hard to sustain in furtherance of possible claims in court.
 
In lieu of the foregoing, then John needs to analyze his options well before advancing claims for damages. To begin with, john is involved in a potentially risky sporting event. It is a matter of presumption that he’s participation in the game comes with associated risks such as injuries resulting from falls or being hit by the golf ball. As result, this becomes the potential grounds within which his claims for damages could be thrown away. In the same vein, John’s claims against Paul could suffer the same fate if due care is not taken to ensure that what he advances as a claim falls – perhaps- under personal negligence of Paul.
 
Reprieve comes in, however, at the point where john has to prove- beyond reasonable doubt- that the culpability of the Golf Club comes in for failure to display its warning message at some place that it would be easier to access and read. For instance, the Club’s choice of writing at the back, and in small writings makes it harder for any participant to have read the warning message[7]. Further, the fact that it was handed to just one of the participants does not in any way mean that it would be read by all.
 
Sally makes a purchase of a ducted air conditioning unit from Breezeway Pty Ltd. Breezeway is a supplier firm, dealing with the supply of residential and industrial air conditioning units. Conflicts arise when the unit that Sally bought develops mechanical malfunctioning. The problems persist even after continued repairs. One conspicuous issue to note is the fact that the problem keeps occurring is repeatedly related to fuses. When, at last, Breezeway distances themselves from demands by Sally to replace the unit of make refunds, the Company makes rebuttals to the effect that they are not the actual manufacturers nor are they able to do anything given the fact that the warrant period lasted only for 3 months and the duration in this cases is six months or thereabout.

 

 
To begin with, the Australian Consumer Law (ACL[8]) makes succinct provisions to the effect that the rights, privileges and guarantees of the consumer are protected. Section 64 of the Act enumerates the statutory obligations vested on the suppliers and manufacturers of goods to make necessary facilitation for the protection of consumer rights and guarantees. The Act further makes a clear definition of a consumer. In this sense, Sally successfully meets the set criteria of identifying a consumer. According to the Act, a person who buys a product with the intention of reselling it is not a consumer but a supplier. Accordingly, therefore, Breezeway- though not the manufacturer of the air conditioning systems- is not a consumer but a supplier. Consequently, it follows naturally that Breezeway cannot dissociate itself from transactions by citing the fact that they are not manufacturers. Instead, it is clear that they are directly responsible to the guarantees of the warranty as suppliers and not as consumers.
 
Further, the Act defines warranties against defects as being the representative communication to a consumer assuring potential consumers that in the event the goods and or services supplied to them are defective, the manufacturer or supplier will repair or replace them or, under particular circumstances, compensate them. It is essential to note that whereas the warranty period has since lapsed, the defects of the air conditioning unit began to be noticeable and complaints were raised to that effect before the expiry of the 3 months warranty period. To her part, Sally did all that was reasonably within her power to bring to the attention of Breezeway that the device supplied was faulty. In this regard defenses to the effect that the warranty period has since lapsed cannot be sustained in law and fact upon sufficient prove by Sally that she’d raised the issue of defects long before the warranty period lapsed.
 
Thirdly, according to Australian Consumer Act[9], a supplier or manufacturer cannot simply wish away the rights and guarantees of a consumer as is enshrined in law. Statutory provisions to this effect are designed to cushion consumers against subtle attempts of suppliers and manufacturers to act in such a way as to suggest that particular rights are nonexistent or are subject to certain overt limitations. Often these limitations are not in conformity with the law and necessary rebuttals must be effected as a way of protecting consumer rights and guarantees in law. In this sense, Breezeway is fundamentally if breach of the provisions of the statutory provisions of the Australian Consumer Law. These breaches amount to credible grounds within which Sally, as a consumer, can advance suits for remedies and other conceivably relevant damages.
 
As a result, the Australian Consumer Law makes certain provisions that compel suppliers and manufacturers to make necessary reparations to consumers. Owing to the fact that the problem that Sally is facing has been persistent, troublesome and of course infuriating, it qualifies to be a major problem. Under the ACL, a product or good can be said to have a major problem if it meets a number of descriptive criteria. First, the product must have a problem of such a magnitude that would stop someone from buying it in the first place had that person known about the problem at first. Obviously, Sally wouldn’t have bought the product had she known of the annoying fuse problem. Secondly, the Act stipulates that a product will be deemed to have a major problem once it can be proved that the product is unsafe because of the recurring problem amongst others[10].
 
It is justifiable, therefore, that Sally has justifiable grounds within which to advance suits for court remedies. These remedies include a complete repair of the product, a replacement of the product or compensation.

 

References

HCA 35; 211 CLR 317 at 352-3, 354

Civil Liabilities Act, 2003 (Qld); Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486; Vairy v Wyong Shire Council 

HCA 54; 211 CLR 540 at 616

HCA 9; 208 CLR 460

HCA 27; 79 ALJR 1104

Butler D, "A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms" (2005) 13 Torts LJ 201

Australian Consumer Law, Section 64

Australian Consumer Act (ACL), Section 64

Nottage L and Kellam J, ‘Product Liability and Safety Regulation’ in Malbon J and Nottage L, Consumer Law and Policy in Australia and New Zealand (Federation Press, Sydney, 2013) 187, especially 187-90.;

Nottage L, ‘Taking Seriously Consumer Product Safety Reporting Duties Under Australian Law’ (5 September 2013), at https://blogs.usyd.edu.au/japaneselaw/2013/08/ taking_seriously_consumer_prod.html.

Wright EW, National Trends in Personal Injury Litigation: Before and After "Ipp" - Law Council of Australia

HCA 35; 211 CLR 317 at 352-3, 354

Civil Liabilities Act, 2003 (Qld); Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486; Vairy v Wyong Shire Council 

HCA 54; 211 CLR 540 at 616

HCA 9; 208 CLR 460

Wright EW, National Trends in Personal Injury Litigation: Before and After "Ipp" - Law Council of Australia

HCA 27; 79 ALJR 1104

Butler D, "A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms" (2005) 13 Torts LJ 201

Australian Consumer Law, Section 64

Australian Consumer Act (ACL), Section 64

Nottage L and Kellam J, ‘Product Liability and Safety Regulation’ in Malbon J and Nottage L, Consumer Law and Policy in Australia and New Zealand (Federation Press, Sydney, 2013) 187, especially 187-90.; Nottage L, ‘Taking Seriously Consumer Product Safety Reporting Duties Under Australian Law’ (5 September 2013), at https://blogs.usyd.edu.au/japaneselaw/2013/08/ taking_seriously_consumer_prod.html.

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