Competition And Torts For Cases And Commentary: An Analysis

Discuss about the Competition and Torts for Cases and Commentary.

In this present situation, the primary issue which relates to the case is whether Ann could make any claim against the Salami manufacturer under the Australian Consumer Law under the Section 54 and Section 138.

To solve the issues which are involved in this case the Australian Consumer Law and Law of Torts needs to be discussed. Consumer Law requires that every goods or products which are being available to the open market, should be available for supply only if it is safe from any product related defects and are of acceptable quality in the market. It is stated in the Competition and Consumer Act 2010 that goods should be of an acceptable quality for being sold in the market. If a person is selling a particular good in the market, he has to assure that there is guarantee about the product that it is of an acceptable quality. As per the Section 54 of ACL supplier and manufacturers provides a guarantee that goods being sold to a consumer are considered to be of an acceptable quality as provided in Section 54 (2) of the Australian Consumer Law. Clause 4 of Section 54 of the ACL provided that every time a good which is supplied to the consumer without complying the acceptable quality, the reason should be drawn in the attention of the consumer for which the supplier or the manufacturer was not able meet the provided acceptable quality. It was held by the Court in the landmark case of ACCC v Valve Corporations (No 3) [2016] FCA 106 that the Section 54 of Australian Consumer Law suppliers or manufacturer in every case should maintain the acceptable quality before selling it in the market. In Norton v Hervery Motors Ltd, the District Court held that while determining the acceptable quality of a product, the consumer should have a regard to the factors which has been listed in Section 7(1).

At the same time, it is provided in Section 138 of the Competition and Consumer Act 2010 that if a person suffers any damage or loss for a safety detect in a product, the consumer can take action against the supplier or manufacturer. If the cause of the safety defects was the neglect or wrongful act of the manufacturer, he should be liable for damages amounting to the consumer from that defect. The Australian Consumer Law has empowered the ACCC to issue a notice for the production of documents or an information. If a manufacturer or supplier causes a breach of that provision, a civil penalty up to A$220,000 can be imposed upon that person.

Relevant Provisions from Australian Consumer Law and Competition and Consumer Act 2010

The famous case of Donoghue v. Stevenson [1932] All ER 1 can be referred in this prospect to describe the concept of negligent act of a manufacturer or a supplier. It was held in that case that negligence implies to an act of causing a careless injury to a person or property. If a person could not oblige with duty of care that he owes towards a person, it shall be considered that he has committed a negligence.

It can be observed from the case that Smallgoods Pty. Ltd. had acted with negligence. They were involved in a business that used to manufacture processed meat products. It is obvious from that they need to be careful while they manufacture the products and make it available in the market for sale. Bacteria treatment process should be exercised in every batch of products. The batch of product which Ann had purchased and consumed, had not undergone the bacteria treatment process. It is nothing but the negligent act of Smallgoods Pty. Ltd. that they had not performed their duty to exercise care in producing processed meat products. This breach of duty to take care by Smallgoods Pty Ltd could also be considered contravening the Section 54 of the Competition and Consumer Act 2010.  The salami product did not meet the consumer guarantee as regard to the product safety under the Act.

A breach of duty to supply products with acceptable quality could be identified in this case. Under Section 138 of the Competition and Consumer Act 2010, Smallgoods Pty Ltd can be held liable. They sold a salami in the market which was of unacceptable quality and that made Ann suffer a serious health problem. The manufacturer is duty bound to communicate to the consumer about the reason which did not allow him meet with the acceptable quality. Smallgoods Pty. Ltd. had failed to do that. Hence, the damage can be claimed from Smallgoods Pty. Ltd.

ACL considers a retailer liable for a loss or damage which the consumer has suffered because of producing a product which was in contravention of consumer guarantee as provided under Sec 54 of the Competition and Consumer Act 2010. Sec 54 of the Act imposes a duty on the retailer to provide goods with an acceptable quality. ACL considers the process by which a product is being packaged, marketed and the instructions and warning to determine the safety of a good. Sec 208 of the Competition and Consumer Act 2010 requires a person to exercise due diligence in order to escape the liability of the damage caused by other. It was decided in the case of Zuvela v Geiger [2007] WASCA 138, that it shall be deemed by a reasonable purchaser that a product is of acceptable quality if it is available in the market for sale. If there is a defect in the product, it should be made known to the purchaser.

Analysis of Liability of the Manufacturer, Retailer, and Consumer

In this case, it was not possible for Supermarkets Pty. Ltd. to be aware of the fact that the particular batch of product had not put through the bacteria check. It was the duty of Smallgoods Pty. Ltd. to examine whether a product has undergone bacteria treatment process. The injury which Ann had suffered, was not foreseeable by Supermarkets. It was held in Cork v Kirby Maclean [1952] 2 All ER 402 that, to hold a party liable, it should be proved that the injury caused to the party would have been avoided by an act of the other party. Supermarkets had not duty of care regarding the bacteria check treatment for that product. The salami had not been expired when Ann purchased it from the Supermarkets. There was a contributory negligence on the part of Ann also as she did not notice the ‘use by’ date. The product was within due date when it was made available at the store. The injury caused to supermarket was not their fault, and not foreseeable by the Supermarket. The Supermarket did not commit any breach of duty on their part as the duty to examine a contamination in a product does not belong to Supermarket. It was the fault of Ann that she did not exercise due care to check that the salami was expired. Though under law it is not a valid ground to avoid the liability to limit their liability by way of hanging or putting a signboard. It can be still argued that Supermarket did not have any liability for the product as Ann did not check the expiry date and suffered an injury out of her negligence. Hence, Ann is not entitled to any damages from the Supermarket.

Hence, from the above discussion, it can be concluded that Smallgoods Pty. Ltd. and Ann are liable for contributory negligence for the damage Ann had suffered, Supermarket Pty.Ltd. was not liable for the damage that Ann had suffered.

The issue can be solved by discussing the relevant provision regarding negligence, duty of care and its breach, causation of breach and remoteness of damage (Luntz et al. 2017). Negligence can be understood by way of causing harm to a person to whom a person owes duty of care for not acting in a reasonable manner. To determine negligence, four elements should be proved that is, the duty to take care, breach of duty, its causation and remoteness of damages.

Conclusion

In the landmark case of Donoghue v Stevenson [1932] All ER 1, the duty of care was discussed. The Civil Liability Act 2002 has provided duty of care in the light of common law. The neighbour principle which was discussed in this case makes a person liable whose careless act has cause harm to any other person. A test should be conducted to check the proximity or foreseeability of the harm.

In the case of Bolton v Stone [1951] AC 850, the breach of duty to take care was taken into consideration. An objective test was discussed in the said case, to analyse the element of a breach. The Court held in that case that a person having a duty to care must act in a way in which a reasonable person would have acted to prevent the injury. A reasonable person would consider the factors like seriousness and probability of an injury as well as the burden of additional care. The elements that a reasonable man would consider was analysed in the case of Paris v. Stepney Borough Council [1951] AC 367.

To establish a negligence, causation is a factor that should be considered. In the Cork v Kirby Maclean [1952] 2 All ER 402 the ‘but for test’ was analysed, which signifies that an injury which the plaintiff had suffered must be the result of the breach of duty of care. Injury should be the main result of breach. There should be no existence of injury which does not arise out of a breach. The claim for negligence should be nullified in such a case. Along with this, the remoteness of an injury should be considered in a case. The court, while determining injury, shall consider whether an injury suffered is remote to compensate. A damage which is not foreseeable by a reasonable person, should not be allowed to be compensated by the rulling of negligence. As decided in the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388, damages should be allowed to be made in the case where the person was in a capacity to foresee the injury. If a negligence is proved in a case, damages should be provided to the plaintiff.

Shanti had been working in the factory and she used to park her car in the parking place which was owned by U-Bewt Shoes Factory. This means that a person who parks in that place should owed with a duty of care. The neighbour principle makes a person, who had failed to take due care and caused harm to another person, liable. In Govier v UnitingCare Community it was decided that employees who has suffered injury in the workplace can make the employer held liable. As Shanti used to work in U-Bewt Shoes Factory, they have a duty to care for her. The objective test provides that a person owing duty of care to another must perform his her duty in a way that a reasonable man would have acted to prevent the harm. The reasonable factors like seriousness and probability of injury should be considered. As a result, it should be considered whether the factory manager had acted in a reasonable manner regarding the injury caused to Shanti.

If the probability and the seriousness is considered in this case, it is evident that there was a failure to exercise reasonable care by the Factory. There was a prevailing chance that car owners may face an injury. The U-Bewt Shoes Factory did not take proper measure even after receiving a report of a foreseeable injury by Shanti. If a reasonable man was there in the position of Shanti’s manager, they would have exercised a reasonable care keeping in mind that the security guard used to sit far away from the parking lot and it was dark in the light, which may occur injury to any person. The manager had committed a breach of care in this respect.

Reference

ACCC v Valve Corporations (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

Donoghue v Stevenson [1932] All ER 1

Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.

Norton v Hervery Motors Ltd

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388

Paris v. Stepney Borough Council [1951] AC 367

The Civil Liability Act 2002

Zuvela v Geiger [2007] WASCA 138