To Settle Q8 Once And For All!! (1 Viewer)

[FLR-IT]

Originally posted by Lazarus
The Trade Practices Act implies terms into all sales contracts for the goods to be of "merchantable quality" and to be "reasonably fit" for their intended purpose. These terms were breached.

As El_chupah_nebre said: The scenario can be distinguished from Donoghue v Stevenson because, in that case, Mrs Donoghue was not the purchaser of the product and so was not privy to the contract between retailer and consumer, thereby preventing her from suing in contract law.

It can't be tort law, as there was no personal harm - there's nothing to compensate.

Donoghue V Stevenson [1932] AC 562 (House of Lords)


Mrs Donoghue visited a caf with a friend, who bought her a bottle of ginger beer. After some of the drink had been consumed, a partly decomposed snail floated to the surface. The sight of the snail and the effects of the drink she had already consumed caused a severe bout of nausea and gastroenteritis. Mrs Donoghue launched legal proceedings against the manufacturer of the ginger beer.
After several appeals the case reached the house of lords, which was asked to consider whether a manufacturer of a good is liable to its final consumer.
In the decision of the house of lords, it was stated by Lord Atkin that a consumer must have remedy against a manufacturer who allows the contents of foods to be mixed with poisons, when the consumer is not able to inspect the food because it is in a container. This was the case with the bottle of ginger beer. The manufacturer claimed that there was NO CONTRACT with Mrs Donoghue because she had not purchased the drink, and there was therefore no legal relationship between them. However the court held that there was an implied contract; a reasonable person would expect that the goods would be of merchantable quality and therefore safe to consume. Damages were awarded to Mrs Donoghue.
The importance of this case went well beyond consumer law as it set the precedent of a duty of care. This precedent asserts that a person has a legal responsibility to ensure that their actions do not harm others.


The Question There was no contract between Mrs Donoghue and the manufacturer. On what basis was she able to recover damages for the injury she suffered?

 

[Nupil]

Is it just me that finds this whole business of the right answer for question eight - well pointless?

We can't change our exam papers, and so many of you are becoming neurotic about something you can check yourself when BoS publishes the answers ... and personally: Who cares? There are going to be people in the state and this very forum that got it right and some that got it wrong ... shouldn't it just be about accepting its over and moving on? Recognising that someone will be right in the future? And that it's really not worth wasting so much energy on? Particularly when we're discussing/arguing/getting fired up about a ONE mark multiple choice question?

Maybe it's just my perspective that's a bit "different" ... or better yet. Hmm. Ta ra.

 

[Belinda]

Tort law. Because of the privity of contract, she cannot sue for damages as she had no contract with manufacturer. However, she could sue under tort law as the manufacturer had the duty of care to ensue that the products are up to standard.

My teacher had emphasised time and time again that in this particular case, the law was definitely under tort, not contract.

 

[FLR-IT]

Further more,

The law of negligence may exclude the operation of the doctrine of privity. Since the precedent of a duty of care was established in Donoghue V stevenson, anyone injured through a faulty product has been able to sue for damages whether they are party to a contract or not



btw. info sourced from a txtbook written by Justice Michael Kirby and associates

 

[sugamama]

Blah blah

THE DIFFERENCE between D v S 1932 and this Q was the FACT THAT

CHRIS BOUGHT THE DAMN CEREAL!

 

[adamj]

Like sugamama, I wonder what your response was for the essays, was it a line that said "The law is effective, haven't you got the excel textbook, thanx Laz."

A precedent isn't binding only if exactly the same people are in exactly the same situation, Donoghue doesn't have to purchase the cereal box for the duty of care to imply.

 

[hbk_ace]

LOOKS, its the hsc, dont go to much into it, from the hsc sylabus it is definately torts, but if there is an issue like that they will accept both answers, dont worry to much

 

[sugamama]

Ok i see what your trying to say adam but still heres the point.

CHRIS BOUGHT THE CEREAL. I'm not talkin about duty of care/whatever! I'm saying since he bought the cereal contractual obligations APPLY!!!

BTW what school you go to adam?

 

[adamj]

I go to Ashfield Boys, urself?

See if you dismiss duty of care, you are not answering the question. If I were to get a question and just dismiss one part to prove my point, you haven't addressed the other issues I have brought up, I would really hate to debate you, we would be wandering what your point is.

 

[sugamama]

Ok I'm not dismissing our duty of care. Sure there is a duty of care under tort law. Is that what D v S created?

All I'm thinking is that tort law covers ALL civil wrongs such as in this case EXCEPT anything that deals with contract. And in this case i think there was a contract!

Sydney Boys High
And dude maybe I can meet up with at Ash LIBRARY or that fish and chip shop on Hercules St. hehe or the Croc Inn!

 

[adamj]

You are right there was contract, but something that I learnt the hard way was that to be too analytical wont get you any marks.

 

[adamj]

hehe, that fish and chip shop is sure definant hang out for ABHS

 

[sugamama]

Yeah I know eh?

Like I always try and go with my first response because its most of the time correct.

I'm guessin you don't hang around Ashfield much?

(GO TEAM CONTRACT)

 

[Lazarus]

Just a brief summary, to avoid confusion... arguments in favour of each.
Have I missed any?

(a) Contract Law
Chris has suffered no personal harm, and so an action in tort cannot be brought.
The consumer has rights against the manufacturer.
The consumer has a contract with the vendor. (relevance?)

(b) Tort Law
No contract exists between consumer and manufacturer.
The manufacturer owes a duty of care to the consumer.
The action in Donoghue v Stevenson was brought under tort law.

 

[adamj]

No I do, but I just go to school there mate, too mcuh crime in that area, my teacher effectively based our course on what happens in Ashfield in crime, police powers, planning and parties to a crime etc..

 

[mememe]

I think MAYBE the word "manufacturer" was irrelevant in this case - wait before you bite my head off!

...See, in law and society you learn about tort and contract law to a limited extent, but not as far as having to know the difference between a manufacturer and a vendor and who can be sued and what not. I have never ever used those words in my legal studies life - why? Cos i dont do consumer law.

So, you aren't required in law and society to know the difference, therefore BOS couldnt ask a question where those factors or the word "manufacturer" determined the answer, as it would disadvantage those who didnt do consumer law.

 

[sugamama]

Ahhh

I can see how there is no contractual obligations between consumer/ manufacturer

BUt also that consumers do have rights against manufacturers under TPA and sale of goods act. Hmm

EDIT HANG ON In Excel it also says
the Trade Prac ACt stipulates that manufacturers and importers MUST make certain guarantees, one of which is merchantable quality of goods. Thus consumers can claim against manu and importers covered by this Act even though there is contract.

I'm really muddled. Maybe its tort.

 

[mememe]

Originally posted by sugamama
Ahhh

I can see how there is no contractual obligations between consumer/ manufacturer

BUt also that consumers do have rights against manufacturers under TPA and sale of goods act. Hmm

I'm beginning to lean towards torts now...

....See, us people who dont do consumer wouldnt know what the hell your talking about. Whether you can have a contract with a manufacturer or not is irrelevent to us - the BOS should know we wouldnt know that, which means it cant fairly be the deciding factor. Without KNOWING all the relevant cases and acts, would would the simple answer be, albiet not technically correct if your a consumer-buff?

 

[sugamama]

Dunno
its a funny duddy Q

In the end what really matters is LOVE!!!

(its gettin late and im muckin)

 

[Lazarus]

Originally posted by sugamama
EDIT HANG ON In Excel it also says
the Trade Prac ACt stipulates that manufacturers and importers MUST make certain guarantees, one of which is merchantable quality of goods. Thus consumers can claim against manu and importers covered by this Act even though there is contract.

Hmm - the way these guarantees are actually given legal significance though is by implying them into the terms of a contract. Whilst it's possible to imply an entire contract, it wouldn't be done between consumer and manufacturer.

I think the Excel book might be confusing the terms (as mememe suggested).