Provided In The Common Law Or The Grounds -Myassignmenthelp.Com

Question: Discuss About The Provided In The Common Law Or The Grounds? Answer: Introducation According to the common law, in case of negligence, there also exists a liability, which is called the vicarious liability. Vicarious liability means the imposition of liability on person for the negligence of another, when such negligent act is in connection with the relationship the two shares. For example, a company becomes vicariously liable for an employees negligence during any work within the scope of such employment. Section-5O of the Civil Liabilities Act, 2002 states the standard of care in circumstances where the defendant is a professional acting in his or her personal capacity. The Act also states that where it has been established that a professional had acted in a manner, which is widely accepted in Australia as a competent professional practice, he shall not be liable under the law of negligence. Under section-5F of the Act, where there was an obvious risk involved, it can be used as a defense against the claim for negligence. Self-evidently, an obvious risk means a risk that, in particular circumstances, would have been obvious to a reasonable person, in the position of that person and in such cases the defendant has no duty to warn for an obvious risk, unless: The plaintiff had requested the defendant to advice or inform about such risk. The defendant had a requirement to warn the plaintiff. The defendant is a professional. Section-5J, clearly states that risk can be assumed with regards to any recreational activities, which also includes any sport at places such as beach, park or other open space. Furthermore, section-5M clearly states that there is no duty of care owed to the plaintiff for a recreational activity, where there is a provided risk warning. However, in the context of recreational activities (including any sport), the defendant shall be held liable if there is no provide risk warning and where the defendant is a professional. In Cleghorn v Oldham(1927) 43 TLR 465, it was held that a competitor owes a duty of care to the spectators, although it is accepted that spectators assume certain risks when they attend sports events. There is a voluntary assumption of risk can be therefore a ground of defense against a claim for being hit by a golf ball or a cricket ball. In this case, it was held that the plaintiff, who was hit by a golf club during a demo shot, did not assume the risk of such accident as spectator. In Langham v Connell Point Rovers Soccer Club[2005] NSWCA 461 it was held that the organizers or the persons in charge of a ground shall also be held liable for any harm or injury, for negligence, caused to any spectator as they owe a duty of care to the spectators. Application: Certain authoritative organizations own a duty of care towards the people to take reasonable measures for preventing any foreseeable injury. Sporting organizations, administrators and facility managers normally have a duty of care to participants to take reasonable care for ensuring safe playing surfaces and equipment and also owe such duty to anyone who enters the premises to take necessary steps to prevent foreseeable injury. Therefore, in the given case, the hitting of a stray ball in a football game is a foreseeable risk and the local council, in charge of the stadium, had the duty of care to prevent injury of anyone in the stadium. Hence, there has been a breach of duty of care and negligence can be established by P under section 5B of the Civil Liability Act, 2002. Moreover, there was no provided risk warning for the obvious risk under section-5F of the Act, by the local council, where providing such risk warning is a duty of the council, being a professional and also the counc il cannot escape the claim of negligence under section-5M, which can also be supported by the judgments in the cases of Cleghorn v Oldham and Langham v Connell Point Rovers Soccer Club. Therefore, P can sue the local Council for negligence and claim damages. Similarly, the participants have a duty of care towards other participants and spectators, to prevent them from injury in the course of the play. Therefore, in this case also there has been a breach of duty by one of the players, hitting the ball and negligence can be established under section-5B of the Act. But as, the act of the player was during the course of his work, being employed as a player of the ABC football club, P shall be entitled to sue the ABC football club for the negligent act of the player as, the ABC football club is vicarious liable for the acts of its player under the law of tort.Therefore, the provisions of the law of tort and the Civil Liability Act, 2002 will be applicable in the given case and P can sue the local council, in charge of the stadium, and also the ABC football club for negligence under tort. Can, Ann and or Carol sue Bruce under the common law for negligence? Does Hanks Distributor and Mower own any liability towards Ann, Bruce and Carol under the law of tort? Are there any possible defenses for negligence? What are the rights of Ann, Bruce and Carol under the ACL against Hanks Distributor or Mower? What are the possible defenses that Hanks Distributor and Mower can raise under ACL? Relevant Law: Under the common law of negligence, product liability is the area in which manufacturers, distributors, suppliers and retailers are held liable for any injuries that the products cause. Regardless of any contractual limitations of liability, under the common law, a manufacturer will be held liable in cases where a product or any of its parts are defective. In Australia, the common law liability is owed to anyone the manufacturer should foresee as likely to suffer injury or damage if the product is defective. However, under the common law, the normal elements of negligence must be proved. In order to make a manufacturer liable, it must be established that he was negligent in the manufacture, design or presentation of the product. But, where negligent has been established, the manufacturer shall be held liable to every person who has suffered a loss or injury duty the defective in a product under the common law. In Grant v Australian Knitting Mills, which is a landmark Australian case, it was held that a manufacturer owes a due of care towards a consumer and shall be liable for any injury or damage caused to a consumer due to any defect in the product. However, in such cases, certain grounds of defense can be adopted under the common law. They are: That the product had been misused by the consumer or used knowingly, in a way in which it should not be used. That the manufacture had anticipated intermediate examination of the product by the suppliers, retailers or distributors. Defense may be available where, at the time of supply, the product was defective was neither known nor discoverable by the defendant given the state of technical and scientific knowledge at that time. Defense may be available where the products are supplied by learned intermediaries in case of special products. Where the product was supplied in bulk, as in such cases it is expected that the person acquiring such products will provide with proper warning and instruction to the consumers. Parts 3-5 of the Australian Consumer law (ACL), being schedule 2 to the Competition and Consumer Act, 2010, deal with the rights against manufacturers in case of product liability for dangerous goods under sections- 138 to 150. These sections deal with the liability of manufacturers and importers for products having a safety that causes injury. The individual who has suffered injuries shall have the following rights: Section-138 and 139- A person who has suffered personal injuries or a person dependant on such person can claim damages against the manufacturer (including importer). Section-140 and 141- Any other person who has suffered loss or injury in goods or real property due to any defect in a product can sue the manufacturer. Section-146- No liability arises in case the injuries are covered by workers compensation. Section-147- In case the manufacture is unknown, the plaintiff can require the retailer to provide with his name and if the retailer fails, he is assumed to be the manufacturer. Section-148- Where goods are were defective due to compliance with any commonwealth standard, the plaintiff can claim damages from the commonwealth. On the other hand, under the ACL, the manufacturer can defend a claim in the following ways as per section-142: There was no defect at the time of supply by the manufacturer; The defect was due to compliance with a mandatory standard for the goods; The state of scientific or technical knowledge, at the time of supply, by the manufacturer, was not sufficient to discover the defect. The product was incorporated as part of other goods and those other goods were defective. Therefore, in the given case, according the common law of negligence, Ann and or Carol cannot sue Bruce as a for a claim due to injuries for a defective product the manufacturer, supplier, retailer, distributors or an importer becomes liable to the consumer of the product and any other person who gets injured due to such defect. This can also be supported by the landmark judgment in Grant v Australian Knitting Mills. PC 21 OCT 1935 Moreover, as Carol is Bruces wife, she cannot sue him as she is Bruces dependant. Similarly, in the given case, Hanks Distributor and Mower, being the distributor and assembler, shall be held liable for damages by Ann Bruce and Carol according to the common law. On the other hand, Hanks Distributors and Mower can use the grounds, as mentioned above, as grounds of defense to escape from the liability of the losses or injuries caused to Ann, Bruce and Carol. Ann, Bruce and Carol shall have all the rights in sections- 138 to 150 of the ACL (parts- 3 to 5), for the damage or loss that they suffered due to explosion of the defective lawnmower (which has been mentioned above). On the other hand, under the ACL, Hanks Distributor and Mower can defend such claims by Ann, Bruce and Carol by using the grounds of defense, under section-142 of the ACL, (which has been stated above). Conclusion: Therefore, Ann and or Carol cannot sue Bruce for damages under the law of negligence, but they can sue Hanks Distributor and Mower for the damages caused to them under the common law of negligence and they shall be entitled to the rights under the ACL, provided in sections- 138 to 150. Moreover, Hanks Distributor and Mower can defend themselves under the grounds of defense provided in the common law or the grounds provided in section-142 of the ACL. References: Australian Consumer law (ACL) Civil Liability Act 2002 (NSW) Cleghorn v Oldham (1927) 43 TLR 465 Competition and Consumer Act, 2010 Grant v Australian Knitting Mills. PC 21 OCT 1935 Langham v Connell Point Rovers Soccer Club [2005] NSWCA 461