Theo-Pauls Course of Action in the Tort of Negligence - Case Study Example

Name: College: Date: Theo-Paul’s Course of Action in the Tort of Negligence This paper will rely on common law legal principles as well as draw upon any civil liability and state provisions that are applicable to North West Australia. Theo-Paul can sue Barack through the tort of negligence if he can establish that Barack owed duty of care and that the duty of care was breached, and that the breach led to damage either in form of economic loss or personal injury. Tort of negligence consists of three elements that the plaintiff must establish for the tort to hold. First, duty of care (Australian Consumer Law, 2010); in the sale contract, Barack had a duty of care to ensure that the ladder was obtained from a credible supplier with proper contacts, and that the ladder was properly assembled. Barack breached that duty of care by buying ladder without proper contract and contacts of the seller, physical location and identity of the manufacturer, as well as lack of proper inspection of the ladder. The standard of care on the part of seller was not done adequately. Thirdly, Theo-Paul can prove that he suffered losses an injury because of breach of duty. For instance, there is an obvious mishap in the manufacturing and assembling of the ladder. It was the duty of the buyer to ensure that the ladder was obtained from a credible manufacturer and was properly assembled before selling it to Alfonse. Apart from the proof of tort of negligence, the plaintiff to be (Theo-Paul) has to present a proof of civil liability especially when there is a risk of personal injury. The plaintiff will have to show that the risk of harm or injury was foreseeable (where the person knew or should have known), the risk is not insignificant, and finally given the circumstances, a reasonable person in the person’s place or position would have taken the same precautions (Australian Consumer Law, 2010). For the court to establish that, a reasonable person in that position would have taken precautions, Theo-Paul must establish that: there is a high probability that if care was taken, the harm would not occur; the seriousness of the harm would be less; there is no burden of taking the harm to avoid risk; and social utility of the action that poses the risk of harm (Barravecchio, 2013). In this case, Theo-Paul will also be required to proof that the risk was foreseeable and that the defendant did not make any efforts to prevent the risk from, and the reasonableness of the actions of Barack in trying to avoid harm. For instance, whether Barack incurred any form of cost or burden trying to avert the risk. Theo-Paul is eligible for damages for both pecuniary and non-pecuniary losses suffered. Tort of negligence gives rise to damages in negligence and in some instances, personal injury claims (Barravecchio, 2013 p.5). These damages comprise compensation for pecuniary and non-pecuniary loss. Theo-Paul is entitled for damages to bodily injury and the cost of hospital treatment, rehabilitation services and loss of his earnings due to his inability to work and live productively. Theo-Paul has also lost his productivity and enjoyment of life in a way that they cannot go on with normal activities and thereof a lot of discomforts. Non-pecuniary loss is hard to quantify, because it involves pain and suffering. The courts have developed a system that provides guidelines for determining these values. However, Barack can seek to reduce the charges by proving that there was contributory negligence in the case on the part of both the plaintiff and the defendant (Lunney, 2012). Contributory negligence will then permit the court to divide and apportion liability between Barrack and Theo-Paul because both were negligent (Barravecchio, 2013). Barack can argue that Theo-Paul did not examine the ladder carefully before putting it into use. He also overlooked the issues of warranty and the credibility of supplier at the time of purchase. Theo-Paul’s cause of action under Part 3-5 or Division 2 of Part 5-4, or both, Australian Consumer Law (ACL) Theo-Paul can bring cause of action against Barack as an individual. Alfonse could also file charges against Barack as a cause of action on behalf of Theo-Paul. Alfonse has a cause of action against Barack under Section 54 of Part 3 of the Australian Consumer Law (ACL) which defines the guarantee for acceptable quality of goods under the law (Australian Consumer Law, 2010). According to the section, acceptable quality of goods can be explained for goods that are suitable for all the functions for which they are commonly supplied, acceptable in terms of finish and appearance, safe, free from defects and durable (Beever, 2008). The goods that Barack sold to Alfonse were not safe, durable and were not acceptable in finish given that Theo-Paul was the first consumer of the ladder, it is clear that the ladder had a number of defects and the finish was not suitable (McCredie, 2010). He could also argue that the ladder does not pass the definition of acceptable quality because it was not safe and durable. However, Theo-Paul must prove before the court that the ladder did not qualify for the acceptable quality definition because he had conducted ‘reasonable consumer’ test. The consumer must be fully acquainted with the state and condition of the good in question for the consumer to regard it as acceptable, and only then can the good be described to meet the standards (Gergen, 2013; Mardirossian, Robbins, & Leibler, 2010). Alfonse can argue that he was not fully acquainted with the good in question and hence relied on the judgment and integrity of the seller. There are a number of issues that must be considered when determining whether goods are of acceptable quality (Heinrich & Bracken, 2009). They include the type and nature of goods, price of goods (if it is relevant to the course of action), any statement presented about the goods on the packaging or the goods label, and any illustration or symbol prepared about the goods by the manufacturer or supplier of the commodity in addition to any other pertinent circumstances concerning to delivery and sale of the goods. Theo-Paul can prove that the ladder was not a second-hand commodity even though it was not branded, and that attention was not drawn to the buyer on any parts that could have defects. In addition, the good did not have any symbol or statement describing the goods. As a result, the ladder is not of acceptable quality (Barker & Knight, 2010). Therefore, in this case the seller presented the goods as of acceptable quality to the buyer. If the seller had knowledge that the goods were second hand, it would also have been important for the select to point out minor defects to ascertain if they were acceptable to the consumer (Mardirossian, Robbins, & Leibler, 2010). In addition, Alfonse was relying on previous knowledge that the store contained acceptable quality furniture. Theo-Paul has a course of action in that the seller did not do the necessary tests to assure the consumer that the ladder was of acceptable quality, and that he relied on the skill of the supplier (Barack). The seller can defend his argument that the fact that the customer did not ask for warranty and accepted the good was indication that it was fit by implication by accepting the goods (Barker & Knight, 2010). Section 55 of Chapter 3 gives exemption to the acceptable quality requirement if he relied on the skill of the supplier. Theo-Paul has a course of action that allows Alfonse to demand repair of goods and availability of spare parts after the destruction of the ladder. According to chapter 3, section 58 A, there are guarantees as to repairs and spare parts (McCredie, 2010). According to the section, the manufacturer or supplier must take reasonable measures to make repairs and avail spare parts that are practically accessible for a realistic period after the supply of the goods (Mardirossian, Robbins, & Leibler, 2010). The definition of ‘reasonable period of time’ is determined by the conditions and type of goods. A course of action can also arise from the fact that there is no warranty issued against the defects of the ladder. According to ACL, the supplier should include any defects that are offered by the supplier and issue a warranty. In this case, the consumer must be informed about all the express warranty terms and statutory conditions for the warranty to take effect (Mardirossian, Robbins, & Leibler, 2010), the procedure for claiming the warranty and the contact details of the person issuing the warranty. All these were absent in the sale agreement of the ladder (Australian Consumer Law, 2010). Theo-Paul has another cause of action after proving that there was false misrepresentation that the goods were new and of good quality. Australian Consumer Law (ACL) has specifically prohibited certain types of misleading conduct or representations that can be pointed out in the Barack-Alfonse transaction. Section C of chapter 3 has a list of 30 prohibited kinds of false conducts in commerce and trade (Barker & Knight, 2010). These conducts include misleading a person as to the availability, terms and conditions, nature, and any other information concerning the conditions of the good or property. Section 29 outlines false or misinformation representation with reference to goods, for instance, representation that goods are of a particular standard, grade, value, quality, style, composition and model, or particular history or previous use and, or services are of a given standard, value and grade and that the goods are new (Heinrich & Bracken, 2009). Damages due to Theo-Paul in the Case Theo-Paul was 45 years when the injury occurred and was earning $400,000 annually. He was an active athlete and in good health with an intention of working up to 70 years. After the injury, he suffers acute migraines every day and has to be sedated. He therefore will continue living in extreme poor quality of life. Theo-Paul’s will be compensated as follows; i) Loss of earnings under damages under Competition and Consumer Act Theo-Paul lost an income of about $400,000 annually and 25 working years. Therefore, the amount of compensation for the loss of earnings is $ 10 million. He should also be compensated for the cost of medication incurred because of injury. This amount will be agreed upon by the court in whether he should be compensated fully (Best, 2012), or in the event that there is a contributory negligence, a certain percentage should be deducted. The Act also provides for compensation of medical treatment because of personal injury which will be determined by the court. Theo-Paul can also file for pecuniary damages after he proves that there was extreme careless or negligence on the part of Barack. The pecuniary damages will be determined by the court. Competition and Consumer Act provides a number of remedies for Theo-Paul as summarized in the section below. It is possible for the court to order the defendant to pay the damages for all of them, or it can also choose to combine some of the damages and offer the maximum reward limit stated under the Tort of Negligence. ii) Loss of quality life Loss of quality life falls under the category of non-economic loss. According to the provisions of tort of negligence, Theo-Paul can prove that he lost quality life after the brain injury. Usually non-economic losses are not awarded damages unless in cases where there is extreme injury. Theo-Paul can also establish that the case is qualifies as an extreme case. In this case, Theo-Paul can be awarded the maximum amount of damages for the non-economic loss which is $442,000. Policy reasons for the Australian caps on damages under Australian Consumer Law (ACL) According to Tort of negligence, there should be no damages awarded in the event of non-economic loss unless there is proof of severity of the damage is extreme. In this case, only 15 percent of damages is awarded. However, in this case, the economic loss is extreme. It is important to show the causal connection between the breach of duty of care and the damage that Theo-Paul suffered. However, after the passing of the Civil Liability Act there is a limit amount to which the affected party can recover from personal injuries. Before the Civil Liability Act came into place, there was a lot of ‘chaos’ under torts in terms of damages to be offered after a personal injury. The act today puts limit on how much damages can be awarded from losses resulting from negligence, defamation and other forms of torts. Competition and Consumer Act of 2010 was established to protect consumers from fraudulent acts, unfair contract terms, unfair practices, harmful goods, unsafe products, misleading representations, deception by suppliers and manufacturers and poor quality of goods. The Act pronounces different remedies and compensation for violation of provisions of the Act. Competition and Consumer Act of 2010 also provides compensation for medical treatment after personal injury. The damages include the cost of medical care incurred because of the accident (Australian Consumer Law, 2010). In this case, Theo-Paul is liable to get reimbursement for the costs incurred and the future costs from the accident. There was also contravention of the prohibition that touches on misleading and deceptive conduct. It avails remedies such as damages, compensatory orders and injunctions. The Act also provides for compensation of income where the accident had an effect on wages and salary of an individual. It does not just compensate for the income lost, but also for the income that would have been made in the future if the accident had not occurred (Australian Consumer Law, 2010). Theo-Paul lost an income of 25 years from the accident because he was healthy and intended to work until he was 70 years. In personal injury compensation, a damage award whose origin is on future income is described as damages for an accident Theo-Paul’s "loss of earning capacity."The damages will also include loss of enjoyment where the accident keeps Theo-Paul from enjoying activities such as exercise, recreational activities and hobby and should receive "loss of enjoyment" damages (Best, 2012). Pain and suffering also forms part of the damages because the law allows compensation for pain and any other serious discomfort suffered after the accident. The act also went ahead to describe what pain and suffering entails for the sake of compensation. Theo-Paul is also suffering from emotional distress as a result of the personal injury and the psychological effect of an injury (Kirby, 2003). These emotional distress damages can be in form of anxiety, fear and loss of sleep. Theo-Paul has to be sedated to ease pain and anxiety from the brain damage. Reference List Australian Consumer Law. (2010) The Australian Consumer Law: A guide to provisions http://www.fairtrading.qld.gov.au/__data/assets/pdf_file/0005/257144/acl-guide-to-provisions.pdf Barker, S., & Knight, S. (2010). The new Australian Consumer Law -- the end for extended warranties? Keeping Good Companies (14447614), 62(10), 618-620. Barravecchio, J. A. (2013). The Tort of Negligence. Legal date, 25 (4), 4-7. Beever, A. (2008). Corrective Justice and Personal Responsibility in Tort Law. Oxford Journal Of Legal Studies,28(3), 475-500. Best, E. K. (2012).Atypical Actors and Tort Law's Expressive Function. Marquette Law Review, 96(2), 461-515. Gergen, M. P. (2013). Negligent Misrepresentation as Contract. California Law Review, 101(4), 953-1011. Heinrich, R., & Bracken, M. (2009). Reforms of Australian Consumer Law -- targeting standard formcontracts.Keeping Good Companies (14447614), 61(5), 299-501. 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