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Provided By Court Is An Award Of Damages

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Provided By Court Is An Award Of Damages

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Tort is considered as legal wrong in which one person or entity commits wrong towards any other person or entity, and in this the remedy provided by Court is an award of damages. In other words, tort aims to protect the people from wrongful conduct of others, and it also allowed the claimants to sue the defendant for compensation and they can also seek injunction for the purpose of restraining the conduct. In case of criminal law, those laws which are creating torts, and these laws also have normative and regulatory effect on the conduct of society (ALRC, n.d.).
Negligence is the situation when one person owns duty of care towards the person but fails to do something that any reasonable person would do or would not do, and such action cause damage, injury or injury to another person.
In case, one person initiates proceedings against another person under tort of negligence for the purpose of seeking compensation from another person. The main aim of court is to put the plaintiff in the position in which he would have been if the negligence had not occurred. There are number of common situations in which negligence is occurred such as car accidents in which either property of the person is damaged or person gets personal injury.
Determination of negligence: four questions are considered by courts for the purpose of determining the occurrence of negligence, and these questions are stated below:

Whether or not defendant own duty of care towards plaintiff?
Whether duty of care is breached by defendant?
Whether or not any injury or damage is suffered by plaintiff?
Whether that injury or damaged is caused because of the breach of duty of care?

For establishing the liability under negligence, it is necessary that all these factors are satisfied, and if even one factor is not satisfied then plaintiff is not able to establish that defendant is at fault.
Duty of care: it is a legal obligation introduced for the purpose of avoiding causing harm, and this obligation is arises in case harm is foreseeable if care is not taken. For the applicability of this obligation it is necessary that any relationship exists between the parties. This can be understands through example, as relationship between manufacturer and buyer or doctor and patient (Law vision, n.d.; Legal Service Commission, n.d.).
Duty of Care:
Breach of duty of care: for the purpose of deciding whether or not duty of care has been breached, the Court considers the standard of care expected in those situations. The standard of care is identified by determining the actions of reasonable person in similar situations. In case, defendant has acted in an unreasonable way or their actions does not meet the standards as stated they Court consider that defendant breach their duty of care.
This can be understand through common example such as very common activity driving, as all road users are expected that they behave accordingly and meet expected standard of care.
This can be understand through case law Donoghue v Stevenson, in which law of negligence was considered by Court, and has expanding since ever. This case was decided by the highest court in Great Britain that is House of Lords in London. The question arose before the Court was whether Mrs. Donoghue has power to bring any action against the manufacturer for negligence. In this case, House of Lords stated with the majority decision of 3:2 that the manufacturer of products owns duty of care towards their ultimate consumers while preparing those products.
Injury determination from breach of duty: in number of cases, it is very obvious to determine what has causes the injury, and this can be understand through example such as in case person slips on wet floor and breaks their arm, then it is very easy to determine the relationship between the  wet floor and injury suffered by person (ALRC,n.d.).
But, there are some cases in which it is difficult to determine the causes of an injury because it might be possible that one or more events are involved which have caused injury.
In the present case, two cases of exploding Samsung Galaxy Note7 occurred in Australia, and one of these incidents took place in hotel room of Perth where one man was asleep when his new Note7 exploded. This explosion burnt the bed sheet and carpet of hotel room, and also injured the person. However, almost 35 cases of were reported overseas in which handsets were plugged to the charger.
Later, company stated that they verify in two Galaxy Note7 smartphones had suffered from the issue related to battery cell, and they recently announced a recall of galaxy Note7 smartphones in Australia. It was urged by the company from their customers not to use their Note 7.
In this case, tort of negligence is involved because there is a close relationship between the parties, and Samsung owns duty of care towards their consumers because it is the consumer who faces the effect of product and ultimately consumes the product. Therefore, it is necessary that liability is imposed on manufacturers towards ultimate consumers. As stated in case Donoghue v Stevenson, that the manufacturer of products owns duty of care towards their ultimate consumers while preparing those products. 
Therefore, in the present case Samsung is negligible under tort of negligence and owns duty of care towards their customers who purchase Note 7, and customer who suffers injury can seek damages from Samsung (The Law Handbook, 2016).
After considering all the facts stated above it is clear that tort of negligence is the situation when one person owns duty of care towards the person but fails to do something that any reasonable person would do or would not do, and such action cause damage, injury or injury to another person. In this manufacturer of product is also liable towards the ultimate consumers because there is a close relationship between them, and manufacturer owns duty of care towards its customers.
Provisions of liability under Australian Consumer Law (ACL), generally apply to manufacturer who supplies goods and services to its customers in trade or commerce. Manufacturer can be considered as company which manufactured or assembles the goods, imports the goods, using his own brand name on the goods, introduce himself to the general public as the manufacturer of goods, and authorize any other person for promoting the goods manufactured by the company.
Safety defects: in case product manufactured by manufacturer does not meet the safety expectations of genera public then product has safety defect. It must be noted that safely level expected by people is different in every case, and Court determine whether or not product has safety defect (ACCC, n.d.). Various factors were taken into account by Court while determining the safety defect and it includes:

Purpose for which product has been marketed, and also the packaging of the product.
Whether any mark is used by manufacturer in relation to the product.
Warning and instructions given for the purpose of assembling the product.
Expectations from the product such as what was expected to be done from the product.
At which time product was supplied

However, it must be noted that safety level in case of older products are different because it cannot be expected from older products that they are safe as brand new products. This does not mean that older products are not safe if brand new products have improved safety features.
Part 3-5 of ACL: Part 3-5 of chapter 3 of the ACL states the statutory rules for the purpose of dealing with liability claims in case of any loss or damage which includes economic loss caused by supplying of any goods contains safety defects. Proceedings can be initiated by any person on behalf of consenting individual, against the manufacturer for recovering the compensation in lieu of injury or loss suffered by any defective goods supplied by manufacturer.
As per section 138 of the Act states that manufacturer of the goods is liable towards the individual for compensation if goods are supplied by manufacturer while acting in trade or commerce, goods has safety defect, and injury was suffered by individual because of that safety defect. Section further stated that individual who suffered injury or damage has power to take action against the manufacturer and seek compensation from manufacturer (Competition and Consumer Act 2010 – Schedule 2).
Grounds on the basis of which liability action against manufacturer can be initiated are stated under section 138-141 of the Act, and as per this section liability action can be taken in case:

If any loss or damage suffered by person because of defective goods, and loss or damage suffered by any other individual because of the defective goods.
Any loss or damage suffered by person as loss of damage of other goods because of the defective goods.
Any loss or damaged suffered as a result of land, a building or a fixture being damaged because of nay defective goods.

Unidentified manufacturer: As per section 147, individual can seek information of manufacturer from suppliers of the goods for taking action against them, and in case suppliers fails to provide such information to the person then supplier is liable towards the person for paying compensation for the loss or damaged (Australian Government, n.d.).
As per section 142 and 148 of the Act following defenses are available to the manufacture:

Manufacturer can proves that at the time of supply of goods, safety defects are not present.
Defect only arose because person complied with any mandatory standard, and manufacturer was not able to detect the safety defect because of any scientific and technical knowledge.
Goods are the part of any other goods, and defect in goods arose because of the design and packaging of the goods (Clayton UTZ, n.d.).

In the present case, those consumers who suffer injury or damage from the safety effect of Note 7 can take action against the Samsung under section 138 of the Act, for the purpose of seeking amount of loss or damage suffered by them because safety defect is exists at the time of supply of goods, and customers suffers injury from such safety defect of goods. Therefore, customers has right to take action against manufacturer and seeks compensation.
Damages caps are considered as an attempt to manage the high cost of doing business by reducing the service providers and manufacturers liability, because this cost ultimately passed by companies on consumers. These caps are discouraged from people who are trying to paly lottery with law suits by initiating the proceedings with a motive of making lot of money. These damages caps ensures that justice system is available only for those who are actually injured and seeking compensation.
Generally, jury does not get around the damages caps, because number of jury does not even know about the damages caps. Judges and attorneys do not instructs or teach the juries related o damages caps because they don’t want that jury use the caps at the initiating stage of proceedings for the purpose of awarding damages, and they want that jury award the amount as compensation which they think is fair, and the damages awarded by them is modified at later stage according to that state’s cap (Clayton UTZ, n.d.).
ALRC provides caps related to all damages but they do not propose any cap for economic loss, which means that total amount related to general damages in case of non-economic loss and other exemplary damages awarded would be capped at similar amount as damages capped in case of non-economic loss related to defamation awards. This proposal mainly aims at equality in proposition of privacy and reputational interests. This proposal prevents the plaintiff in cherry picking the causes of action on the basis of higher awards of damages (ALRC,n.d.).
It must be noted that restrictions on the scope of damages in case of non-economic loss for personal injury actions are stipulated at statute. In NSW, initial cap for damages are set up at $350,000 and is now set at $551,500. However, damages for non-economic loss in case of defamation were initially capped at $250,000 and are now set at $355,000.
An ACL part 3-5 states the claim for defective goods, and this claim has advantage over negligence in case of strict liability in which there is no need to establish actual negligent conduct, and representative actions can be initiated by the regulator with consent. Some principle disadvantages of this are:

CCA section 87E states that part VIB of the CCA applies to ACL part 3-5 claims, and in this plaintiff can seek award for personal injury, thresholds for liability, and proportional liability.
Claims of misleading and deceptive conduct for the purpose of failure to comply with acceptable quality or fitness (Find Law, n.d.; OLBRY, n.d.).

In case of Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1, respondent sold Vioxx which is a treatment provided relief from arthritic pain, and in this case safety defect claim failed because of successful invocation of the state of the art defense, and Court stated that vioxx was not considered at merchantable quality because it is normal expectation that consumers cannot be put at risk of cardiovascular events when they purchase a painkiller. Therefore, respondent was liable in this case.
Economic damages are considered as concrete damages in which injured person or the plaintiff’s insurance company has paid or continues to pay out as a result of the injury, and this can be understand through example such as payment of medical bills stemming from the injuries. Therefore, economic damages are considered as concrete amount in which plaintiff miss the chance to earn the money for lifetime such wages earned by plaintiff.
There are number of states which have no economic damages caps for safety defect cases, and little number of states is there which set caps for personal injury claim as well. These caps are ranging from ranging from $350,000 to $750,000 (ALRC, n.d.).
ACCC. Product liability. Retrieved on 15th May 2017 from: https://www.productsafety.gov.au/product-safety-laws/legislation/product-liability.
ALRC. Authorizing what would otherwise be a Tort. Retrieved on 15th May 2017 from: https://www.alrc.gov.au/publications/right-sue-tort.
ALRC. Cap on damages. Retrieved on 15th May 2017 from: https://www.alrc.gov.au/publications/11-remedies-and-costs/cap-damages.
Australian government. The Australian Consumer Law. Retrieved on 15th May 2017 from: https://publications.qld.gov.au/dataset/1b96f0f9-1d84-44b4-9448-7d871dbd3b9d/resource/a9a1cc75-3b45-44fb-a08d-33d1e6ac7c10/download/aclguidetoprovisions.pdf.
Clayton UTZ. The Australian Consumer Law. Retrieved on 15th May 2017 from: file:///C:/Users/Manisha%20Bhatia_Absas/Downloads/Clayton-Utz-The-Australian-Consumer-Law-An-Essential-Guide-For-Product-Manufacturers-And-Suppliers-2012.pdf.
Competition and Consumer Act 2010 – Schedule 2- S138
Donoghue v Stevenson 1932 AC 562.
Griffith, C. (2016). Exploding Samsung Note7 ruins Australian hotel room. Retrieved on 15th May 2017 from: https://www.theaustralian.com.au/business/technology/exploding-samsung-note7-ruins-australian-hotel-room/news-story/093d67da670f8c1ed20df88aafbb2f66.
Law Vision. Introduction – The Law of Torts. Retrieved on 15th May 2017 from: https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf.
Legal service Commission. Negligence. Retrieved on 15th May 2017 from: https://www.lawhandbook.sa.gov.au/ch01s05.php.
Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd (2010) 184 FCR 1.
The Law handbook 2016. Negligence and injury. Retrieved on 15th May 2017 from: https://www.lawhandbook.org.au/10_01_00_negligence_and_injury/.
Clayton UTZ. Product Liability 2015. Retrieved on 15th May 2017 from: https://www.claytonutz.com/articledocuments/178/ICLG-Product-Liability-Australia-2015.pdf.aspx?Embed=Y.
OLBRY. Liability of manufacturers for goods with safety defects. Retrieved on 15th May 2017 from: https://olbrychtpalmer.net/2015/04/06/manufacturers-liability-for-safety-defects.html.
ALRC. Remedies and Costs. Retrieved on 15th May 2017 from: https://www.alrc.gov.au/publications/12-remedies-and-costs/damages.
Find  Law. What is a Damages Cap. Retrieved on 15th May 2017 from: https://injury.findlaw.com/accident-injury-law/what-is-a-damages-cap.html.

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