Case Study of McTools Company-Free-Samples-Myassignmenthelp.com

Question: Discuss Whether McTools Company is responsible for the accident occurred or not. Answer: Issue: The issue of the case is whether the McTools company is responsible for the accident occurred or not. Another issue raised in the case is whether the company is liable to pay full compensation to the company or not. Laws: This case attracts the principle of duty of care and contributory negligence that are engraved under the provision of Tort law[1]. In Australia, tort law is based on the principle of common law. Both the principles are within the scope of the term negligence. Negligence is a careless act that injured a person and may cause damage to the victim. A person is said to do negligence if he fails to take certain measures what a prudent man would do in that position. Negligence has been attached in the Civil liability Act 2002 in Australia. In the case of negligence, the claimant has to prove the damage that is occurred due to the negligent act of the wrongdoer[2]. Therefore, from the definition of negligence, the duty of care principle is observed. It is the duty of every person to act diligently so that it could not harm others. In a historical case of Donoghue v. Stevenson [1932] AC 562, it was observed by the Court that the manufacturer of a product is liable for the every disputed item that are made by him. The elements of duty of care are engraved in the case[3]. In this case, it was held that if the claimant proves the violation regarding the provision of the duty of care, the defendant has to compensate the claimant. The main objective of the case is that the defendant should foresee the effect of anything conducted by him. Problem regarding the duty of care is that the limit of the liability in such cases. In a famous case of Ultramares Corp. v Touche Co 174 NE 441 (1931), a company suffers for the wrong accountant policies of the accountant and a claim arose regarding the breach of duty of care by the accountant. Court stated that th e liability of a person under this provision could be limitless and it is to be understood whether there is a scope for the person to foresee the damages[4]. In Perre v Apand (1999) 198 CLR 180, the court was pleased to decide that if the conduct of the defendant is not foreseeable in nature, he will not be liable under the provision of the Duty of Care. The duty of care can be claimed in circumstances like physical or mental harm caused to the plaintiff. Damage can be claimed in case of emotional shock too. The provision is described in section 31 of the Civil Liability Act 2002. Under section 5D of the Civil Liability Act 2002, there is a provision regarding the harm is mentioned. Under the elements of the negligent act and the provision of the duty of care, harm is one of the essentials. The harm can be of physical or psychological damage. The present case is attracting the provision of the contributory negligence too. In the tort law of Australia, there are certain defenses mentioned for the defendant where the claimant is barred by law to claim full amount of damages from the defendant. Contributory negligence is a part of it. Under this rule, it is to be observed whether the claimant is also liable for the accident or not. In Pitts v. Hunt [1990] 3 All ER 34, it was observed by the court that in any accident, if there was certain evidences that proved the negligent act of the claimant, law will protect the interest of the defendant to certain extant and the claimant will bar by the law to claim full compensation from the defendant. In Astley v. Austrust Limited (2000) 197 CLR 1, the same principle was established by the High court of Australia. Under section 5R of the Civil Liability Act 2002, it was mentioned that it is the duty of a person to abide by the instructions carefully before use a particular thing and should take necessary things to avoid any accident[5]. If the plaintiff fails to avoid such things, and an accident occurred due to this, he will be liable for the same partly along with the defendant. This term of contributory negligence is acting as a defense to the defendant. The liability regarding the acts is depending on each facts of the case and there is no specific rule mentioned regarding the liability of this case. In Mak Woon King v Wong Chiu [2002] 2 HKLRD 295, a worker employed under the company of the defendant had failed to complied with the instruction of the company and was killed. Court held that the liability of the company is less than the liability of the workers and ordered to pay only 15% of the claimed money[6] Application: In this present case, same principle of duty of care and contributory negligence will be applicable. Aurora, the victim had failed to follow the instructions properly and suffered from serious eye injury[7]. Therefore, the law to claim full compensation from the company bars her and the observation of the case of Mak Woon King will be applied. It was her duty to take possible care to avoid any harm. However, she failed and the principle of contributory negligence will be injected here[8]. The manufacturing company is also liable in certain parts. The company had failed to owe certain duties regarding the product. The fact was known to the company that there is a possibility of short-circuit if the machine is working for more than five minutes continuously. The company had failed to take reasonable steps for that and failed to make the customers cautious about the facts. Therefore, the rules of Donoghues case will be applicable in that case. Conclusion: Therefore, it can be conclude that the manufacturing company is liable under the provision of the duty of care principle. However, it can defend itself under the provision of the contributory negligence as the victim is also partly liable for the accident. Reference: Barry, C. (2017). Statutory modifications of contributory negligence at common law.Precedent (Sydney, NSW), (140), 12. Cusimano, G. S., Roberts, M. L. (2016). Contributory Negligence and Assumption of Risk.Alabama Tort Law,1. Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comand, G., Domenici, R., Hernndez-Cueto, C., ... Pinchi, V. (2016). International Guidelines on the Methods of Ascertainment of Personal Injury and Damage Under Civil-Tort Law. InPersonal Injury and Damage Ascertainment under Civil Law(pp. 583-602). Springer International Publishing. Fordham, M. (2013). Legislation and Case Notes: Contributory Negligence and the Disabled Claimant. McKendrick, E. (2014).Contract law: text, cases, and materials. Oxford University Press (UK). McLachlan, R. (2013). Deep and Persistent Disadvantage in Australia-Productivity Commission Staff Working Paper. Rajapakse, P. J. (2016). Contamination of food and drinks: Product liability in Australia.Deakin L. Rev.,21, 45. Stewart, P., Stuhmcke, A. (2014). Lacunae and litigants: A study of negligence cases in the high court of Australia in the first decade of the 21st century and beyond.Melb. UL Rev.,38, 151 Barry, C. (2017). Statutory modifications of contributory negligence at common law.Precedent (Sydney, NSW), (140), 12. Cusimano, G. S., Roberts, M. L. (2016). Contributory Negligence and Assumption of Risk.Alabama Tort Law,1. McKendrick, E. (2014).Contract law: text, cases, and materials. Oxford University Press (UK). Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comand, G., Domenici, R., Hernndez-Cueto, C., ... Pinchi, V. (2016). International Guidelines on the Methods of Ascertainment of Personal Injury and Damage Under Civil-Tort Law. InPersonal Injury and Damage Ascertainment under Civil Law(pp. 583-602). Springer International Publishing. Fordham, M. (2013). Legislation and Case Notes: Contributory Negligence and the Disabled Claimant. McLachlan, R. (2013). Deep and Persistent Disadvantage in Australia-Productivity Commission Staff Working Paper. Rajapakse, P. J. (2016). Contamination of food and drinks: Product liability in Australia.Deakin L. Rev.,21, 45. Stewart, P., Stuhmcke, A. (2014). Lacunae and litigants: A study of negligence cases in the high court of Australia in the first decade of the 21st century and beyond.Melb. UL Rev.,38, 151.