Australia's Commercial Law: The Civil Liability Act 2002 - Case Study Example

Commercial Law Assignment Facts Mason, John and Janice wined and dined indiscriminately on a Saturday night. Intending to continue the celebrations, they purchased two bottles of French champagne and repaired to the Lookout Point, which was located on a hilltop. There was no warning signboard and protection was provided solely by a two-metre high fence. Beyond this fence was the edge of the cliff, which was clearly visible. The inebriated John, scaled the fence and transported himself to the edge of the cliff, and fell down and fractured his leg. Issue Whether the provisions of the Civil Liability Act 2002 can be resorted to by John, in order to make a claim of negligence. Whether John has any remedies against the Willow Council for the losses caused to him. Whether Mason can claim against the French champagne bottle manufacturer and supplier for the injury caused by the stopper of the champagne bottle. Regulation The Civil Liability Act 2002, has engendered several changes with respect to personal injuries resulting from negligence. Some of these are; limiting liability for recreational services, the offering of an apology not constituting an admission of liability, and restricting the claims of individuals who sustain injury while engaged in criminal activities[Lat12]. Moreover, this Act has brought changes to personal injuries resulting from negligence with regard to restricting damages, in situations where intoxicants had contributed to the injury; providing protection to Good Samaritans and volunteers from liability for negligence; discarding aggravated, exemplary, and punitive damages in personal injury claims; and stipulating a statutory limit on general damages on personal injury and death claims[Lat12]. Argument John Occupier’s liability arises when a visitor to the premises is injured at that place. In an action, the visitor becomes the plaintiff and the occupier of the premises, regardless of who or what the occupier is, becomes the defendant. The cause of action, with respect to occupier’s liability is that of tort of negligence. Success in such action, requires the plaintiff to prove that the defendant owed him a duty of care, the required standard of care had not been conformed to by the defendant, and material damage had been caused by the defendant that was not too remote[Sad04]. It has been quite difficult and complicated to establish the required standard of care, in occupier’s liability cases. This is due to the variation in the standard of care with the nature of the visitor. Thus, the standard of care to be exercised, with regard to injury to a trespasser is lower than that required with regard to injury to a party that has been invited to the property of the defendant[Sad04]. In our problem John crossed the fence in a drunken condition and broke his leg. This situation was the subject matter of Australian Safeway Stores v Zaluzna. In this case, Zaluzna had sustained an injury after slipping on the floor of the supermarket. The court held that the supermarket was liable, as it had failed to take reasonable care to prevent a reasonably foreseeable likelihood of injury to Zaluzna[Sad04]. Moreover, in Nagle v Rottnest Island Authority, the plaintiff, who drove tourist buses and performed odd jobs became totally paralysed below the neck. His quadriplegia was the outcome of diving into the Basin on Rottnest Island. The High Court held that the Rottnest Island Authority was liable, as it had failed to display appropriate warning signs, with respect to diving in the waters of the Basin. It was also held by the court that it was more than sufficient, if the defendant took the precautions against risks that were reasonably foreseeable. In this case, the test employed was that the risk was not to be fantastic or implausible[Sad04]. The test adopted in Nagle was established in the decision of the High Court in Wyong Shire Council v Shirt. In that case, Shirt had been paralysed from the neck downwards, after a water skiing accident on the Tuggerah Lakes. Shirt was an inexperienced skier, and his accident occurred due to the presence of a board stating Deep Water, when the water was actually shallow. This had prevented him from changing his skiing strategy to that required for shallow water, resulting in his falling into the water and injuring himself[Sad04]. The High Court upheld Shirt’s contention. However, in Evans v Kosmar, an 18 year old was injured after diving into the shallow end of a swimming pool. The Appellate Court ruled that the tour operator had to exercise care, with regard to the facilities and services provided at a hotel complex. However, such duty did not encompass the protection of the claimant against an obvious danger that the latter could reasonably expected to be aware about[Nor09]. Consequently, the plaintiff’s claim was dismissed. Furthermore, in Eutick v City of Canada Bay Council, the plaintiff fell down at a pedestrian crossing, due to the repair works being conducted by the defendant. Section 5B of the Civil Liability Act 2002, states that failure to take precautions against a risk of harm does not render the concerned individual negligent, unless, the risk was foreseeable, was significant, and such that under the given circumstances, a reasonable person placed in that individual’s position would have taken such precautions. This comes to the aid of the defendant, with regard to personal injury claims, where the plaintiff had been aware of the risk or the risk had been obvious. In our present case, John crossed over the fencing to peer down the cliff, from the very edge. Any reasonable person would have been able to assess the risk involved in this hazardous enterprise. John was unable to estimate the danger, since he was in an intoxicated state. According to the above discussed case law, John cannot make a claim for breach of duty of care against the Willow Council, due to the concept of obvious risk, as determined by the courts. Mason The French champagne bottles had stoppers that were uncommon in Australia. When Mason attempted to open one of these bottles, the stopper popped out and struck his nose and caused it to bleed. For assessing the rights of John against the champagne manufacturer, the following discussion has to be taken up. A duty of care is owed by manufactures to consumers and other users of their products. Some of the situations where this duty of care comes into play are the following. First, the negligent design of goods. In O’Dwyer v Leo Buring Pty Ltd, the plaintiff was blinded in the eye, after being struck by the stopper of a wine bottle, at the time of its opening. The plaintiff was an infrequent wine imbiber and unfamiliar with that particular model of wine bottle. The stopper had frequently traversed distances up to three metres, at the time of being removed from the wine bottle. No warning regarding this erratic behaviour of the stopper had been mentioned on the bottle. The court held the defendant liable for the injury caused to the plaintiff, as the ejection of the stopper and the possibility of injury were reasonably foreseeable. Second, the negligent production of goods. In Donoghue v Stevenson, the ginger beer had contained a dead snail, which demonstrated the negligence of the manufacturer. Finally, the negligent packaging of goods. In Adelaide Chemical and Fertilizer Co Ltd v Carlyle, sulphuric acid had been sold by the manufacturer in earthenware jars. A worker unloading these jars suffered extensive damage to his legs, when one of these broke, apparently due to a crack in the jar. The High Court ruled that the manufacturer had breached his duty of care towards the unloaders of the jars, as the packaging had been hazardous and inappropriate. According to the above case law, the manufacturer of the bottle owed a duty of care towards its customer, Mason. In addition, French champagne bottles were unfamiliar to the Australia consumer. Hence, they should have affixed a warning label on the bottle, in order to facilitate the safe removal of its stopper. Neither the manufacturer nor the retailer had adopted such measures, and Mason suffered a nasal injury, while opening the bottle of champagne. Therefore, the manufacture and the retailer are liable for breach of duty of care under negligence law. Conclusion In our problem, John straddled the fence and crossed over to the other side to have the clear view of the cliff. The Willow Council, has a duty of care towards its customers or visitors. The Willow Council had placed a fencing without any warning signboards. However, according to the case law and legislation, the plaintiff should have taken reasonable measures to ensure his safety. This did not transpire, as the inebriated John behaved recklessly and unreasonably. Consequently, the Willow Council is not liable for the losses suffered by John. This is in accordance with the principle of obvious risk, according to the decided case law and legislation. John cannot make any claims against the Willow Council for the injuries suffered by him. Mason injured his nose, at the time of opening the champagne bottle. This was due to the negligence of the manufacturer and supplier. According to the above discussion and case law, Mason can make a claim for damages, under breach of duty of care, against the manufacturer, as well as the supplier of the French champagne bottle. This is because, the manufacturer and retailer of the French champagne bottles have a duty of care towards consumers, and therefore towards Mason. They had failed to fulfil their duties towards Mason. As such, the manufacturer and retailer had breached the duty of care and were liable for damages under the provisions of negligence law. References Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) HCA 44. Australian Safeway Stores v Zaluzna (1987) 162 CLR 479. Civil Liability Act No 22, 2002. New South Wales. Donoghue v Stevenson (1932) AC 562. Eutick v City of Canada Bay Council (2006) NSWCA 30. Evans v Kosmar (2007) EWCA Civ 1003. Latimer, P., 2012. Australian Business Law. Barton, ACT, Commonwealth of Australia: CCH Australia. Nagle v Rottnest Island Authority (1993) 177 CLR 423. Norris, W., 2009. Personal Injury and the Duty of Care in Tort. [online] Available at: [Accessed 21 September 2014]. O’Dwyer v Leo Buring Pty Ltd (1966) WAR 67. Sadler, P., 2004. Do we need a sign on every rock in the water? Standard of care in negligence and the Tourism Industry in Western Australia. Legal Issues in Business , Volume 6, pp. 3-11. Wyong Shire Council v Shirt (1980) 146 CLR 40. Read More