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Question:
Discuss about the Torts Tl10005 Principles of Torts Law.

 
Answer:
Introduction:

The issue in this case is related with the injuries suffered by Mandy when a bottle of orange juice exploded in her face and she lost an eye. Therefore it needs to be decided if Tamara Natural Juice Limited (TNJL) or Ms. Hooper can be held liable for these injuries. The explosion in the bottle of orange juice took place due to the yeast bacteria in the bottle as during the pasteurisation of the producers, the company heated the products to 75 degrees while the scientists suggest that although such an occurrence was most uncommon but it can be completely eliminated if the fruit juice was heated up to 85 degrees. At the same time, the risk could also be reduced further if instead of using the glass bottles, the manufacturers used plastic containers. But it was difficult to heat the product up to 85° as the production costs will increase significantly and the production will become uneconomic. At the same time, the plastic containers were not easily recycled and were not biodegradable. It has also been mentioned that most of the other interested manufacturers also used glass containers instead of the plastic containers. Similarly in view of the fact that fermentation was very rare and any costs associated with introducing a change was too high, it was considered as unnecessary and uneconomic. Therefore, under the circumstances reliability of TNJL and Mrs. Hooper needs to be decided regarding the injuries suffered by Mandy. 

Rule: in order to decide the above-mentioned issue, the rules related with the law negligence out to be analyzed. Under the law, the term negligence means a failure to do what would have been done by any reasonable person under the circumstances (Mersey Docks and Harbour Board Ltd v Coggins and Griffith (Liverpool) Ltd., 1946). In order to establish liability for negligence, the plaintiff is required to have that the respondent had a duty of care. In the past, the law has also provided for the requirement according to which equal, including the companies have to conduct their affairs in accordance with the standard that can be expected from a reasonable person.[1] In this way, in order to recover compensation under negligence, the plaintiff is required to establish that (i) the defendant had a duty of care towards the plaintiff; (ii) such duty of care has been breached by the defendant; and (iii) the personal injury or the damage suffered by the plaintiff was caused by such breach of duty.

 

Under these circumstances, it becomes important to consider what the duty of care is. While deciding if the defendant owed a duty of care, a number of legal principles and policy factors are taken into account by the court (Hollis v Vabu Pty Ltd., 2001). Particularly when the situation is new and the relationship has not been an established relationship which includes a duty of care, the court has to consider several factors. Therefore, for this purpose the court has to consider the type of harm suffered by the plaintiff; the control that the defendant had over the situation which resulted in the harm and the vulnerability of the plaintiff to such harm; the nature of relationship that existed between the defendant and the plaintiff as compared to the duty relationships; the moral and ethical considerations and the coherency and consistency of the legal principles.[2] 

In case of certain easily established relationships a duty of care is present, like the occupiers liability or the motor vehicle liability. In the same way, the manufacturers of products are also considered to have a duty of care towards the ultimate consumers of their goods.[3] However, outside these established relationships, the court has to consider the factors mentioned above for deciding if a duty of care is present or not in a particular relationship.[4] 

Even when it can be said that a reasonably foreseeable risk is present, it is not necessary that the court will hold that the defendant had a duty of care. For this purpose, the essential considerations include the vulnerability of the plaintiff, the nature of the harm suffered by the plaintiff and if the risk was not insignificant.[5] At the same time, there is also the issue of inconsistency with other duties that are owed by the defendant in case of other relationships. For example the Civil Liability Act contains special provisions regarding the liability of volunteers. For example where a social worker was investigating the allegations made against the father, related with child abuse and the harm suffered by the father's reputation and employment is caused, the court will take into account the duty of the social worker to investigate the allegations and also the duty relationship that exists between the child and the social worker to override reasonable foreseeability of causing such harm to the plaintiff.

 


However in some other situations, it may not be so easy to decide the liability for the harm. Therefore, several factors have to be considered while deciding if the driver had a duty of care towards a person who was walking on the highway during the night.

The next requirement is that there should be a breach of duty of care. In order to establish a breach of this duty, the elements need to be satisfied.[6] The person knew or should have known regarding the risk. This is also known as reasonable foreseeability. The risk should not be insignificant and any reasonable person under similar circumstances would have taken precautions against such a risk. The requirement to which the risk should not be insignificant has been the result of recent civil liability reforms and the introduction of Civil Liability Act. The introduction of this Act has raised the bar that is required from reasonable person before such person is required to act. Therefore under the current position, while the harm should be reasonably foreseeable, at the same time it is also required that the risk should not be insignificant. However the standards have to be decided on the basis of the facts of each case.

In the same way, the precautions that will be considered as reasonable by the court will also vary, depending on the circumstances of each case.[7] The considerations that have to be made by reasonable person by deciding the issue of taking precautions against the risk have been mentioned in the Civil Liability Act as follows. The chances that the harm may take place if there is not exercised; the likely seriousness of the harm; the burden of taking the precautions for avoiding such a risk and the potential the benefit of the activity due to which others have been exposed to the risk of harm. 

The decision given in Donoghue v Stevenson (1932) can be considered while deciding the issue if a person knew or should have known regarding the risk. In this case, the significance of foreseeability of injury or damage to the plaintiff due to the defendant's conduct was mentioned. 

Under the Civil Liability Act, coalition mentions that negligence should be the necessary condition and such harm should fall within the liability of the defendant. Hence, a connection should be present between the alleged negligence on the part of the defendant and the harm suffered by the plaintiff.[8] However this is a question of fact. Under the common law, the ‘but for’ test was used to decide the issue of causation and it was seen if 'but for' the actions of the defendant, the harm suffered by the plaintiff would not have taken place. However, the Civil Liability Act provided in this regard that because should be a necessary element of harm.

 


In this regard, the Civil Liability Act asks if foreseeability was apt in the context of the scope of liability of the party in breach to extend to the harm suffered by the plaintiff. According to the Act, the policy issues that may arise have to be considered.[9] Therefore it can be said that the best way is to see if a reason is present due to which the defendant should not be held liable.[10]

An example in this regard can be given of the case titled Commonwealth v Verwayen.[11] In this case, the Commonwealth was held to be liable for breach of its duty of care as a ship sank as a result of negligence. It was stated that the Commonwealth was liable for causing the accident but the plaintiff for the liver and lung cancer that was caused as a result of heavy drinking and smoking that started on part of the plaintiff as a result of experiencing the accident. Earlier the courts have discussed it in context of remoteness and proximity. Another factor in this regard is an intervening cause - nova causainterveniens. However, according to the Civil Liability Act, it has to be considered in terms of policy reasons. Will it be inapt to consider one party liable for all the results of the event where there were intervening factors like the own choices of the person.[12]

Generally the breach of duty of care is self-evident. However, an additional requirement has been added by the Civil Liability Act according to which the standard that can be used to decide if there has been a breach of duty is that the risk should not be far-fetched or fanciful. Therefore the risk should not be an immaterial risk.[13] It also needs to be considered if any other reasonable person would have taken precautions against such a risk. This can be referred to as carelessness. It can be described as a failure to do what could have been done by any reasonable person under similar circumstances. But in this regard, after the implementation of the Civil Liability Act, the courts consider the factors like cost involved in taking the precautions and the magnitude of the risk.[14] The issue of what could have been done by any reasonable person under the circumstances is a question of fact.

 


Application:In the present case, TNJL uses the pasteurisation process for preserving its fruit juices. For this purpose, each water product is heated up to a temperature of 75 degrees before sealing the bottles. This is a very crucial process in manufacturing as this process prevents the yeast bacteria from entering the fruit juice. If any yeast bacteria has entered and survived and the juice, the juice may be fermented. The gas that has been built up in the bottle during the fermentation process can cause the bottle to explode after some time. But generally it is accepted that this kind of organs is very rare. At the same time, according to the CSIRO report, it has been mentioned that although this occurrence is very rare but it can be completely avoided if the product is heated by the manufacturers to a minimum temperature of 85 degrees. At the same time, the risk can also be reduced significantly if plastic containers are used by the manufacturers instead of glass bottles. But the juice manufacturers have opposed this report on the grounds that if the product is heated to a minimum temperature of 85 degrees, the cost of production will increase significantly as a result of the increase in power charges. As a result, the production will become an economic. At the same time, the fruit juice manufacturers also pointed out that the plastic containers were not biodegradable and could not be recycled easily. As a result they were not environment friendly. They have also pointed out towards the fact that other interstate manufacturers were also using glass bottles. They have stated that the fermentation is very rare and at the same time, the cost regarding the introduction of these changes was too high. As a result, it was unnecessary as well as uneconomic to implement these changes in New South Wales.

As mentioned above, along with other factors, the cost related with taking the precautions also needs to be considered. Another relevant fact in this case is that fermentation is a very rare occurrence. Therefore in this case, it can be stated that TNJL or Ms Hooper cannot be held liable for the injury suffered by Mandy.

Conclusion: TNJL and Ms. Hooper is not liable for injuries suffered by Mandy. There was no negligence on part of Ms. Hooper. Similarly, TNJL had taken all the precautions that are necessary in this case. Taking other precautions like heating the product of 85 degrees or using plastic containers will involve a significant cost that was not proportionate to the risk present in this case.

 
Bibliography

Bailey, S (2006) ‘Public authority liability in negligence: the continued search for coherence’

26 Legal Studies 155

Barker, C (2006) ‘Wielding Occam’s Razor: pruning strategies for economic loss’ 26 (2) Oxford

Journal of Legal Studies 289

Case, P (2001) ‘Something “old”, something “new”, something “borrowed” . . . the continued evolution of Bolam’ 17 Professional Negligence 75

Stapleton, J (1995) ‘Duty of care: peripheral parties and alternative opportunities for deterrence’

111 Law Quarterly Review301

Morgan, J (2005) ‘Slowing the expansion of public authority liability’ 121 Law Quarterly Review 43

Teff, H (1992) ‘Liability for psychiatric illness after Hillsborough’ 12 Oxford Journal of Legal Studies

440

Dias, R W M (1953) ‘The duty problem in negligence’ Cambridge Law Journal 198

Mitchell, P and Mitchell, C (2005) ‘Negligence liability for pure economic loss’ 121 Law Quarterly

Review 194

Gearty, C (2002) ‘Osman unravels’ 67 Modern Law Review 87

Harlow, C (2005) Understanding Tort Law , 3rd edn, Chapter 2. Sweet & Maxwell 

Case Law

Commonwealth v Verwayen  ("Voyager case") [1990] HCA 39

Deatons Pty Ltd v Flew (1949) 79 CLR 370

Donoghue v Stevenson'' [1932] UKHL 100

Hollis v Vabu Pty Ltd (2001) 207 CLR 2

Mersey Docks and Harbour Board Ltd v Coggins and Griffith (Liverpool) Ltd [1946] 2 All ER 345 HL

New South Wales v Lepore [2003] HCA 4

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