Unit-2 Commercial Law Assessment

Unit-2 Commercial Law Assessment

Part B:

1. Assessing common law duty of negligence:

Unit-2 Commercial Law AssessmentAs per the common law of negligence, duty of care is nothing but a legal obligation which must be adhered by individual from whom, it is expected to follow certain duty of care. It is important to note in this context is that in the standard case of negligence, the breach of duty generally happens at the time when an individual person fails to perform certain considerable action towards the other. As pet the case study. Bruce is partially responsible for the accident which has lead both Ann and Carol who have faced severe harm and monetary loss respectively. Both of them possess the ability to sue Bruce on the basis of tort of negligence.

Tort can be regarded as the branch of legal framework which highlights that, the plaintiff can experience certain remedy from the lawsuit in order to recover the damages which is being faced by him due to the carelessness of the defendant. In this case, Ann is the plaintiff who is encountering with massive injury as the dysfunction of fuel tank which has been bought by Bruce. Therefore it is important for Ann to take legal action against Bruce that this carelessness has caused severe injury to him(Llewellyn, 2016).  Ann can make case against Bruce on the ground that, if Bruce has checked the machine, then the accident could have been prevented. At the same time, it is the civil objective of Bruce to recover the damage which has been caused to the plaintiff. Bruce must provide financial compensation to Ann so that she can be able to make treatment of her damages.

On the other hand, Carol has faced severe economic loss as her computer has been damaged due to the faulty fuel machine. Pure economic loss is needed to be considered in this context which can be regarded as the financial damage which has been caused to the innocent party due to the negligence of the defendant. As per the case study, Bruce is slightly responsible for the unwanted situation which has been occurred as the outcome of inappropriateness of the fuel machine(Milsom, 2014). It is important for Bruce to check the durability of the product before buying them which can support in preventing any kind of unwanted happenings. However, Carol cannot claim any compensation from Bruce as he is not entirely responsible for the damage. In the case study, there is no mention of technical expertise of Bruce and it is widely admitted fact that a person cannot take durability of product, if he or she does not possess technical skill. Therefore, Bruce cannot be regarded as the defendant in this case(McGuire, Knoppers, Ma’n, & Clayton, 2014).

2. Explaining the basis of liability negligence in the tort of negligence:

Tort is nothing but the wrong full activity. This can also be regarded as breach of duty which can be of several types such health injury, loss of property and financial damage. According to common law of negligence, in order to establish that the defendant has failed to perform certain standard of care, it is important for the plaintiff to establish that the carelessness of defendant has caused severe harm to him or her. There must be a legal relationship in between the plaintiff and the defendant which paves the way of executing legal procedure(Posner, 2014). As per the case study, both the companies can be able to take any legal action against Ann, Bruce and Carol as they are the actual defendant of the case. Rather, Ann, Bruce and Carol can go on a legal procedure against the companies due to selling of faulty machines.  It is the prime responsibility of the companies to check viability and functionality of the machines before selling them to the customers. Therefore the companies can face legal issues as selling faulty machinery to the customers.

However, there are some of the possibilities of the defendants which can serve them with the ability to protect themselves from any kind of legal issues. The defendant can claim to the court that the plaintiff was aware regarding the risk related to the machinery and the defendant has liable assumed the risk of machines. As per the tort of negligence, the defendant is not entitled towards any kind of harm or damages. They are only entities towards providing monetary compensation to the innocent party so that they can be able to overcome from harm or loss. It is important for the owner of both the companies to face legal issues because of selling faulty machines(Goldberg, Sebok, & Zipursky, 2016). On the contrary, the companies can also defend Bruce on the ground that improper usage of the machine has resulted in the accident and therefore, they are not liable to provide any kind of monetary compensation.

3. Identifying possible rights under 3-5 of Australian Consumer Law (ACL):

As per the case study, the relationship in between Bruce and Hank’s, Distributors Ltd. or Mower Ltd is buyer and seller. Based on this discussion, it can be said that they are legally connected with each other. Therefore, both of them possess certain standard of care to the other. At the same time, being a business organisation, it is important for both the companies to protect interest of the customers. Australian Consumer Law can be regarded as one of the most significant branch of national law which deals with fair trading and implementing policies and procedures for the sake of protecting needs and requirements of the customers(Pearson, 2017). This can also be considered as one of the major law which aims to protect contract in between consumers and small business organisations (Consumerlaw.gov.au, 2017). Part 3-5 of Australian Consumer Act deals with the fact that the liability of any kind of faulty products goes entirely to the importers and if the products can cause any harm or injury, then the concerned party must provide compensation to the innocent party. Part 3 of this act specially deals with the dangerous goods than that products whose functionality is inappropriate. Section 9 of Part 3 of ACL deals with the fact that it is important for Hank’s, Distributors Ltd to take care towards checking durability and packaging of their products. Section 138 to 139 of Australian Consumer Law empowers the person to take legal action against the company by showing the ground that the carelessness of the company has caused severe harm to the defendant. Bruce can file case on the court against Hank’s, Distributors Ltd for selling faulty products which have resulted in both monetary loss and financial injury. According to Section 139 of ACL any injured person can take legal action against the manufacturer for selling improper products(Australiancontractlaw.com, 2017).

Based on this provision, Ann can file case against Mower Ltd as dysfunction of their product has caused severe health related injury to her and lead to stuck for three months on bed. This has hampered her profession and caused her severe economic harm. In this context, it is important for Mower Ltd to provide with considerable financial compensation to Ann, so that she can be able to treat her injury and mitigate the financial loss. However, the time limit must be considered by the plaintiff before taking any legal action against the defendant. In order to take legal action against Mower Ltd, Ann must file the case in between 10 years of the incident(Corones, Christensen, & Howell, 2016).

4. Evaluating possible defences under (ACL):

Part 3-5 of AustralianConsumer Law deals with the liability of the manufacturer for selling defective products. In order to take any kind of legal action against the seller of faulty products, it is important for the plaintiff to ask the suppliers to provide detailed information of the company. Failure towards providing such kind of information may lead the supplier to be liable towards providing monetary compensation.   Part 4-3 of ACL basically deals with the which is available for the defendant for protecting themselves from any kind of legal issues that have caused due to failure of themselves towards performing certain standard of care. These defences can be attained by the manufacturer of the faulty fuel machine for selling faulty and inappropriate products(Hunt, 2015). The company can defend themselves by stating the fact that the defect within the products was absent at the time of manufacturing. In this context, it can be said that Mower Ltd can prevent court cases on the basis of the fact that the fault was not there at the time of making the fuel machine.

There is another possible defence which can be attained by the companies for preventing any kind of legal issues.  The authority of Mower Ltd can defend themselves on the ground that the defect has been aroused only due to the fact that mandatory requirement of the products have not been integrated. Another possible remedy which is available to the authority of Mower Ltd is that, they can state lack of technical skill and competency level of the workers has created barriers for the workers to figure out the defects within the product(Coteanu, 2017).


Tort law of negligence is one of the major branch of English legal system which deals with the loss or harm which has been caused due to the carelessness of one party. In the case of tort of negligence, it is important for the defendant to take legal action along with claim monetary compensation from the defendant. This is the way through which the plaintiff can enjoy reasonable remedies.


Australiancontractlaw.com. (2017, September 08). Australian Contract Law | Julie Clarke. Retrieved from Australiancontractlaw.com: https://www.australiancontractlaw.com/legislation/cthacl.html

Consumerlaw.gov.au. (2017, September 08). Legislation – Australian Consumer Law. Retrieved from Consumerlaw.gov.au: http://consumerlaw.gov.au/the-australian-consumer-law/legislation/

Corones, S., Christensen, S., & Howell, N. (2016). Submission to Australian Consumer Law Review Issues Paper. London: Routhledge .

Coteanu, C. (2017). Cyber consumer law and unfair trading practices. London: Routledge.

Goldberg, J., Sebok, A., & Zipursky, B. (2016). Tort Law: Responsibilities and Redress. London : Wolters Kluwer law & business.

Hunt, K. (2015). Gaming the system: Fake online reviews v. consumer law. Computer Law & Security Review, 3-25.

Iacobucci, E., & Trebilcock, M. (2016). An economic analysis of waiver of tort in negligence actions. . University of Toronto Law Journal, 173-196.

Llewellyn, K. (2016). The common law tradition: Deciding appeals (Vol. 16). . London : Quid Pro Books.

Martin, K. (2016). Topical matters pertaining to the tort of negligence-the attribution of blame. . Brief, 38-40.

McGuire, A., Knoppers, B., Ma’n, H., & Clayton, E. (2014). Can I be sued for that? Liability risk and the disclosure of clinically significant genetic research findings. Genome research, 719-723.

Milsom, S. (2014). Historical foundations of the common law. . London : Butterworth-Heinemann.

Orchard, M. (2016). Liability in negligence of the mentally ill: A comment on Dunnage v Randall. . Common Law World Review,, 366-374.

Pearson, G. (2017). Further challenges for Australian consumer law. In Consumer Law and Socioeconomic Development (, 287-305.

Posner, R. (2014). Economic analysis of law. . London : Wolters Kluwer Law & Business.

Stimson, C. (2016). Hospital Risk Management and the US Legal System: An Introduction to US Medical Malpractice Tort Law. In Risk Management in Medicine, 69-76.

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