Provided Scenario Legal Position Mactools †Myassignmenthelp.Com

Question: Discuss About The Provided Scenario Legal Position Mactools? Answer: Introducation Torts of negligence are actions which are not deliberate, but attract a claim when an organization or an individual is not able to take precautions as a reasonable person had taken in same situation. It may also be defined as the failure to consider ethical or appropriate care expected to be used in specific circumstances. Negligence is an area of tort law which includes harm being caused because of a failure to act in a prudent manner. Donoghue v Stevenson (1932) AC 522 is the land mark British case related to the tort of negligence in the legal world. However the provisions of the law had been injected into the Australian justice system through another landmark judgment in the case of Australian Knitting Mills, Ld. v.Grant50 C. L. R. 387 (1935). The neighbor principle is the most significant concept in the history of negligence. According to the principle it is the duty of a neighbor to observe due care in towards any person which can be injured by his actions fore see ably. This is known as the principle of the duty of care. As provided by the case of Arcy v Corporation of the Synod of the Diocese of Brisbane[2017] QSC 103 it was ruled by the court that not having proper mechanism in place for the purpose of protecting the employees from injury accounted to negligence on the part of the employer. In order to institute a negligence claim three elements have to be identified namely the duty of care, no taking reasonable precautions (breach of duty) and actual harm caused to the injured person. If any of the three elements are absent a claim in relation to negligence cannot be constituted as per the case of Chaina v Presbyterian Church (NSW) Property Trust (No. 25) According to the case of Liverpool Catholic Club Ltd v Moor[2014] NSWCA 394 if the harm can be foreseen a duty of care is established. If a reasonable person deemed to adopt more caution in same situation the duty is violated. Finally, if the harm is resulted out of the violation of the duty a claim of negligence is identified. Usually the but for test is uses to locate the reason of caution of harm to constitute negligence which as provided by the British case Barnett v Chelsea Kensington Hospital[1969] 1 QB 428. However there is also a concept which is known as CONTRABUTORY NEGLIGENCE which a negligent person may use in form of a defense against a claim of negligence. In case it can be established by the plaintiff that the defendant had some contribution in the harm suffered by him the compensation to be paid to the plaintiff can be reduced in accordance to the percentage of contributory negligence. The concept was recently used in Australia in the case of Jackson v McDonald'sAustraliaLtd [2014] NSWCA 162 where the plaintiff was himself liable for the fall suffered by him as he did not take support of the hand rail. The court in this case only allowed 30% of compensation to the plaintiff and the rest 70% was discarded due to contributory negligence. As per the rules of remoteness only those harms which can be foreseeable by a reasonable person are liable to be compensation by the negligent party as provided by the case of Caparo Industriesplcv Dickman[1990]UKHL 2. Application The first step which would be required to find out the legal position of MacTools Ltd would be to analyze the existence of a duty of care. In the Donoghue case it was provided that manufacturers have a duty to care to the consumers. In the same way it can be provided that MacTools Ltd had a duty of care towards Mulan and any person who uses the drill. Now as a duty of care has been found, whether or not MacTools Ltd falied to take reasonable action in relation to the duty has to be analyzed. There was a 1% chance that if the drill is used for more than five minutes it might malfunction. MacTools Ltd failed to provide this fact to Mulan as they feared that recalling the drills would result in a loss for them. Mulan further provided the drill to Aurora for use. Unaware of the fact the drill was used for ten minutes by Aurora and as a result it exploded. In similar situation a reasonable person being aware of such fact must have notified the consumer about the defect or would have recalled the drills. Thus it can evidently be provided that the duty of care was actually violated by MacTools Ltd. Finally, the reason for causation of harm has to be analyzed through applying the But for test. In the given situation if it would have been notified by MacTools Ltd to Mulan about the defects he would have notified the same to Aurora and she would have not used the drill for an extended period and if the drill was taken back the accident would have been prevented. Thus there exists a claim for negligence. However, as Aurora was instructed to use glasses while using the drill which he did not his act would fall under the scope of contributory negligence. It is irrelevant whether he actually read the instructions or not. The compensation to be provided to him would be revised in accordance to the amount of contributory negligence. According to the principles of foreseeability a duty of care only exists when the harm can be foreseen. The loss which was faced by Jessie due to the obstruction in power line and the breaking of the glass cannot be said to be reasonably foreseeable as it does not pass the proximity test. Thus MacTools Ltd is not liable to the loss faced by Jessie. Conclusion MacTools Ltd is liable for the tort of negligence but the compensation would be reduced due to contributory negligence on the part of Aurora. However MacTools Ltd is not liable to Jessie. References Arcy v Corporation of the Synod of the Diocese of Brisbane[2017] QSC 103 Australian Knitting Mills, Ld. v.Grant50 C. L. R. 387 (1935). Barnett v Chelsea Kensington Hospital[1969] 1 QB 428. Caparo Industriesplcv Dickman[1990]UKHL 2. Chaina v Presbyterian Church (NSW) Property Trust (No. 25) Donoghue v Stevenson (1932) AC 522 Jackson v McDonald'sAustraliaLtd [2014] NSWCA 162 Liverpool Catholic Club Ltd v Moor[2014] NSWCA 394