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Explain the basis of an liability in the tort of negilence that an manufacturer or distributor of the samsung galaxy note 7 might have to its australian consumers.     


At the onset, the tort of negligence underpins the concept of product liability which has been depicted by the default in the design or manufacturing thereby causing injuries to the Samsung Galaxy Note 7 users (Carroll v Fearon, 1999). In tort law, in an action of negligence an individual must has satisfy three key requirements for such a claim to be claim to be regarded as complete (Grant v Australian Knitting Mills, 1936). It is paramount to establish the existence of a duty of care to the consumers owed by the Samsung electronics company with regards to its products to its users, their consequent breach of the duty and a causation link to any injury or harm encountered.

Traditionally, in a product liability claim against a manufacturer, it was upon the aggrieved party to prove on a standard of probability that the manufacturers negligently misrepresented the product policy on safety to the users hence the injury resulted harming the consumer (Langridge v Levy, 1837). It has been argued that the burden of proof fell upon the plaintiff to demonstrate that the manufacturer knew of the danger and failed to inform the same information to the user or take any precautionary action (Heaven v Pender, 1883).The concept of the application of the three essential elements in a negligence claim as was highlighted by Lord Artikn has a substantial influence in the realm of product liability with regards to manufactures products and its intended users. The cardinal principle in the dicta is that an individual ought to take reasonable care so as not to cause acts or omissions that will inferably result to harm or injury on a neighbor (Donoghue v. Stevenson, 1932).

It was argued in the case of Caparo Industries v Dickman (1990) that the test of establishing the existence of duty of care fell upon the aggrieve party to show that the three fundamental principles have been breached. The acts or omissions of the defendant that resulted in the harm or injury suffered were reasonably foreseeable and such could have been avoided (Kent v Griffiths, 2000). It is therefore incumbent upon the users of Samsung galaxy note 7 to prove that there existed a duty of care owed to the consumers and users by the company. The concept of duty of care has also been encapsulated in legislation although it is prominent among common law cases.  It is fundamental to note that the defendants have a responsibility to ensure that a reasonable care is adhered to with regards to the safety policy of the products. (Civil Liability Act 2002 NSW s 5O and 5P).

Duty of Care

It is also crucial to undertake an establishment of a duty of care owed by parties through analyzing the existence of a legal relationship which is meets the quality of a degree of proximity (Home Office v Dorset Yacht Club, 1970). The existence of the proximity relationship between the manufactures and the aggrieved consumers must cause the duty of care to be breached and result to harm. It is evident that there was a relationship of proximity between Samsung electronic manufacturers and the Samsung galaxy note 7 users.   In examining if there is a duty of care, it is essential to put into mind all the circumstances surrounding the case to establish if it would be reasonably just for the law to impose a duty of care (Capital v Hampshire County Council, 1997) .

It has ben held that for the precept of causation to withstand the test of a negligence action the claimant is tasked with the duty of establishing the defendants’ omissions caused harm and an injury occurred to the Samsung galaxy Note 7 users (Wilsher v Essex Health Authority, 1988). The principle of the ‘but for’ test as was espoused in the Barnett v Chelsea & Kensington Hospital (1968), the court argued that not all damages may be as a result of the defendants omissions however, damages would nonetheless occur owing to the defective products. It is presumed by the courts that the harm would not happen but for the manufacture’s negligent acts. (Civil Liability Act 2002 WA pt. 1A div 3 s 5c). Under the doctrine of common law, it has been argued that the precept of the ‘but for test’ is in consonance with section 5c of the Civil Liability Act 2002 WA as was established in the High court in the case of Adeels Palace Pty Ltd v Mubarak & Bou Najem (2009).The establishment of the standard of skill and care test of the manufacturer’s products will be that of a reasonable person under the similar circumstances which has also been famously referred to as the ‘bolam’ test (Bolam v Friern Hospital Management Committee, 1957). Similarly it will be the same measure when considering the degree of skill with regards to the avoidance any risk reasonably foreseen. Therefore, Samsung electronic manufacturers company will be judged according to the standard of another manufacturing company that does the same business as it does. The court will seek to establish if the negligent act or omission would be inevitable in the circumstance the defendant test.


It is imperative to note that the defendants in this case Samsung electronics company will be defeated if they pleaded the defense of volentis non fit injuria or voluntary assumptions of risks by asserting that the harm suffered was as a result of the plaintiff’s negligent omissions of failure to adhere to the prescribed guidelines on the use of the product thereby causing to themselves. An alternative defense that the Samsung electronic manufactures may rely on is that of contributory negligence by alleging that the users of the Samsung note 7 also contributed to the negligence omission or act by the conspicuous failure to follow product guideline.  Conversely, it is essential in the understanding of the principles of negligence that whilst pleading the defense of contributory negligence the same rules in used in determining the primary liability of negligence shall be applied mutatis mutandis (Civil Liability Act 2002 (WA) s 5k). Accordingly the defenses in this case   are not likely to win but they are can only possible apply. The legal arguments, material facts and their integration satisfy the conclusion that Samsung electronics will be liable for the negligent claim.  

The Australia Consumer Law (ACL) is a legal touchstone that undertakes the responsibility of ensuring the protection of consumers from faulty unsafe manufactures products which attract economic loss, damage and personal injury (Australia Consumer law part 3-5). Hence it follows that in accordance to the principles of Australia Consumer Law, any person aggrieved as a result of the defective manufactures products may bring forth a claim of negligence. It has been argued that a product is categorized as being defective if it does not meet the standards expected by a reasonable in the ordinary course activities thus the aggrieved consumers in the Samsung galaxy note 7 case shall arise a claim of negligence against the manufactures for the risk and harm suffered. (Australia Consumer Law Section 138-141).

Firstly, it must be established that for the nature of the defective product harm or injury was suffered by the users as result thus it’s immaterial whether the goods are of low grade or not operational, as was in this case where the Samsung galaxy note 7 consumers were aggrieved by the use of the appliances. Conversely, the Australia consumer law provides a bridge for the possibility of all aggrieved parties if they had a direct link to the manufacturers to lodge a claim of negligence for the risk encountered as a result of faulty and unsafe goods. Thirdly, owing to the faulty state of the goods harm was caused to an individual currently undergoing the same. Lastly, in the instances where the process of demolition of any fixtures is taking place due to faulty products used and an individual suffers harm as a result such an individual can lodge a legal claim of negligence in a court of law.


It is submitted that under ACL an aggrieved individual of the tort of negligence can raise a claim against both the parent and subsidiary manufacturing company (Leeks v FXC Corporation, 2002). In the case study the parent company Samsung electronics company and the Samsung Electronic Australia which is the subsidiary may all be held as defendants and be severally liable in the claim of the Samsung galaxy note 7 users. It is imperative to note that there is an exception to the product liability rules under the Australia Consumer Law as there are other goods that are very harmful by nature and there is no risk that can be associated to the product even if has been has suffered by a consumer (Cook v Pasminco, 2000). In this case there a defect cannot be established in the product because of natural qualities.

In accordance to the defenses of defective goods envisaged under the Australia consumer Law part3-5 sections 142, and 148 manufactures can escape from liability alleged suffered by consumers through the claim that the said defect was not contemplated to be in existence during the period of goods distribution. Both the common law principles of negligence and the ACL equally hold the view that the standard of care and skill applied during the production stage of the goods is that of a reasonable person who is a reasonable scientific and technical knowledge person would possess in a similar situation (The Australian Consumer Law, 2010). Additionally, in the process of limiting the liability of the manufacturers it can also be alleged that the defect in the goods could have resulted from the method in which it was packed or designed and the failure meet the strict standard of compliance (The Australian Consumer Law, 2012). In a nutshell, it can be summed up from the analysis of this paper that the Australia consumer law has a rigid approach towards its application on the precept of duty of care as opposed to the common law concept under the tort of negligence. 

In a claim of negligence if a claimant is successful in proving to the court all elements are present the obvious remedy is award of damages which acts as compensation to be put in a position before the tort was committed. With respect to general damages which are for loss that is not economic it is traditionally the discretion of the court to decide what amount they will award for pain, suffering and emotional distress. This traditional view of discretion is fleshed out from common law but a new approach has emerged from the civil liability Act and other tort legislative laws. The law has places a limit or a cap on damages that are awarded for loss that is not economic so as to control regulate the discretion of court and not leave it unfettered. The damages that are awarded in a successful case of defamation are in most non- economic although now a limit has ben placed on the amount that the court can award. The rationale of the limit is that the court is not allowed to award more than the amount designated by law (Defamation Act 2005 (NSW) s 35).

Australia Consumer Law

Pursuant to section 16 of the Civil Liability Act 2002 (NSW) a cap of $350000 has been placed on the unliquidated damages that are awarded in a claim of personally injury. The personal injury unlioquidated damages award limitation was revised in the Civil Liability (Non-Economic Loss) Amendment Order 2013 to a limit of $551500. There has been a strenuous legal debate invited by the issue of limitation on general damages (Office of the Australian Information Commissioner, Submission 66). There are proponents that have stated that the limitation of damages makes litigant in tort action to be to pick a certain course action depending on the maximum amount that has been placed as a limit. Conversely, it has been argued that the limits that have been place do not have any significant benefit and they do not make any impact on the quest of justice but rather they will make people more litigious (Nicholas, 2012).   According to Ward (1988) the caps on unliquidated damages have averted the unreasonable amount of money that have previously been awarded by the courts. In the past damages for non-economic loss were awarded according to how emotional the judge would react to the gravity of the claim. If very high amount are awarded for non-economic loss damages, the price of commodities and essential services surge because of high premium that have to be paid (Sharkey, 2005).

On the other hand, it may be argued that the caps give an advantage to professionals in the medical field because it clerkly defines the amount of premium they are likely to pay in insurance.  


Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48

Australia Consumer law

Barnett v Chelsea & Kensington Hospital (1968)3 All ER 1068

Bolam v Friern Hospital Management Committee (1957) 1 WLR 582

Browne J and Robert P, (1999) "The Effect of Legal Rules on the Value of Economic and Non-Economic Damages and the Decision to File." Journal of Risk and Uncertainty 18(2): 189-213.

Caparo Industries v Dickman (1990) 2 AC 605

Capital v Hampshire County Council (1997)QB 1004

Carroll v Fearon, Bent and Dunlop Ltd (1999) PIQR P146

Civil Liability Act 2002 WA

Civil Liability Act 2002 NSW

Cook v Pasminco [2000] FCA 677)

David R, (2005) ‘The Interaction of Remedies for Defamation and Privacy’ Precedent 14

Defamation Act 2005 (NSW)

Donoghue v. Stevenson (1932) UKHL 100

Grant v Australian Knitting Mills (1936 ) A.C. 562

Heaven v Pender (1883) 11 QBD 503

Home Office v Dorset Yacht Club (1970) AC 1004

Kent v Griffiths (2000)2 WLR 1158

Langridge v Levy [1837] EngR 156

Leeks v FXC Corporation - [2002] FCA 72

Nicholas P, (2012) ‘Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy’ 17 Deakin Law Review 139

Office of the Australian Information Commissioner

Sharkey M, (2005) “Unintended Consequences of Medical Malpractice Damages Caps,” 80 New York Univ. Law Rev. 391

The Australian Consumer Law, (2010) A guide to provisions

The Australian Consumer Law, (2012) An essential guide for product manufacturers and suppliers

Willsher v Essex Area Health Authority (1988) 1 AC 1074

Ward J, (1988) “Origins of the Tort Reform Movement,” Contemporary Policy Issues 6: 97-107.

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