Mm20 : Human Rights : Assessment Answers

Introduction:

Among other countries across the globe Australia is one of them where there are no written statutory provisions or constitutional charters which can provide a complete security of the rights of the citizens. With the help of common law essential human rights are preserved and protected except those rights which are legally forbidden. The two basic sources of law in Australia are the statute law and the common law. In order to deal with the day to day disputes and happenings in the society the court of law has to apply these common laws and principles to adjudicate the disputes and render decisions which are at par with these laws.

In this assignment hypothetical questions have been answered relating to various issues using the framework of issue, law, application and conclusion (ILAC). The legislations or rules that would be followed while answering the questions includes Australian consumer law and the law of negligence/ negligence misstatements

Part A

Advise Bruno and Maria whether they are able to take action against the Brisbane city council for negligent misstatement. Consider both the common law and the civil liability Act 2003 (Qld) in your answer.

Issue: In this present case study provided, there has been an allegation regarding the negligent mismanagement on the part of Brisbane city council against the plaintiffs that is Bruno and Maria.

Law: the rules and legislations that needs to be followed in order to address the issue is the common law regarding negligent misstatements and the remedies awarded along with the application of the Civil Liability Act 2003 under part 3 in order to assess the claims for damages put forwarded. 

The previously determined cases by the court of law regarding the issue of negligent misstatement as a cause of action include one of the land mark judgments in:

Case examples:

Hedley Byrne & co. vs. Heller & Partners

Mutual life & citizens assurance co Ltd.  Vs . Evatt   

Sans Sebastian Pty Ltd Vs. Minister administering the environmental planning and assessment act 1979.

Esanda Finance Corporation Ltd  Vs.  Peat Marwick hungerfords

Application

In the present case, Bruno and Maria purchased a business of a bakery on the 11 December 2017 with a condition of a seven days period cooling off within which the above mentioned parties could decide whether they are willing to proceed further with the contract. Within this span of time the couple went through news in the Westside times which stated that there was a planning going on by the Brisbane city council for the establishment of a light rail line through Rock lea. In order to be confirmed about the same, the couples emailed the Brisbane city council in order to collect the information regarding the route that will followed by the council to build the line as they were concerned that if the rail line passes through Ipsich road Rocklea then there would be obstruction in the business of the bakery. The Brisbane city council wrote a letter with a certificate to the couples stating that the light rail route would not be passing through ipswich road. The document declaring the same was signed by the senior planning officer. The decision formerly taken by the council was changed which was not been informed in the letter sent by the senior planning officer. With the information that was being provided in the letter the couples decided to proceed with the operation of the bakery. Later on when the construction of the light rail was started the bakery became inaccessible as a result of which the business of the bakery suffered a huge loss. Hence in order to get compensated for the same Bruno and Maria can bring an action against the Brisbane city council for negligent misstatement under the common law.

As stated in the common law negligent misstatement is the act of stating a false statement unintentionally and carelessly by a person having knowledge and expertise in the same to some other person. There is an existence of an implied duty of care on the part of the person who is giving the information. In the present case also the information given by the senior officer of the council was faulty in nature, owing to which the couples had to suffer a huge loss in the annual turnover.  The senior officer had a public duty to render the appropriate information regarding the route as it was asked by the couples. Though there is no existence of a written contract between both the parties the senior officer of the council was under a duty to take the reasonable care while disbursing the information to the parties concerned. Moreover in the email written by the couples formerly enquiring about the same they had already mentioned that based on the decision of the Brisbane city council they would start with the construction and commencement of the bakery business. Despite the knowledge of this information provided by the parties the council members were reluctant in undertaking their duty of reasonable care and prudency. Whatever decision is being taken by the council regarding any matter it gets distributed to all the planning officers hence as a matter of fact the officer was aware of the decision that was taken later on that the route of the light rail will be passing from the ipsich road. The council authority is completely liable for the damages that have occurred to the business of the parties concerned. Hence under the common law they can obtain a remedy for the mishap that occurred by the act of the council. Since the loss occurred is financial in nature then the couples can claim for an amount of damages according to the proportion of loss done to the business.

Under the Civil Liability Act 2003 in order to assess any civil claim for the damages that has occurred due to the harm provisions under this Act can be applied. The above mentioned parties can also apply under this Act as the provisions of the statute binds all persons which is inclusive of any state authority, the legislative powers and their extent along with the parliamentary authorities. Under section 9 of the Act the defendant that is the council had a duty to take care against the risk of the harm that was already being reported by the plaintiff. The risk was foreseeable in nature under the circumstances in which the plaintiffs were being placed. The callous act that was being done by the council was an activity of social utility and importance and hence was aware of the seriousness of the harm that might occur.  

Section 11of the Act states about the principles that are to be followed for the purpose of setting the causation. Here due to the breach of the duty to take care by the councils there a substantial loss in the bakery business so the act of the council authorities can be termed as the factual causation of the harm. Moreover under sub clause (4) of this section it has been stated that in order to decide the scope of liability the court will apply the principle of remoteness in order to judge the responsibility of the party doing the breach of duty. In this case if the council would have properly informed the parties regarding the route then they would not have not suffer the said damage.

Case law: Wagon Mound Case No 1 or Commonwealth v McLean 

In this case it was held by the Privy Council that the level of reasonable foresee ability is to be considered  a relevant point in determining the liability of remoteness of damage caused. A limit was decided for this beyond which the wrong doer cannot be held liable for the harm caused to the plaintiff.   

Under section 23 of the Act, the provisions regarding contributory negligence has been provided which states that in order to judge a person’s liability for any act it is also parallel important  that the party suffered the loss was did not contributed In taking the necessary precautions for the purpose of avoidance of the harm. In this case Bruno and Maria were aware of the risk that might take place while running the business for the reason of which they mailed to the council but the efforts of the couples were in vain as the council members failed in furnishing the correct information hence the plaintiffs in no way contributed to the loss suffered by themselves and it as was the sole responsibility of the defendants to do their function properly.

Case law: Hedley Byrne & co. vs. Heller & Partners

In this landmark case the judgment delivered was that in situations where liability in tort might arise due to the stating of a fact negligently by a person having an expected knowledge of the same and reliance is placed over that information rendered by any person which might affect him physically or financially then such wrong doers must be booked under the principles of tort in order to give compensation to the parties suffered. This duty will be generated at that point when a person gives information or advice to some other person regarding a very important matter.

Conclusion : hence it can be very well be concluded from the above analysis of the case and the provisions of the applicable statutes that Bruno and Maria can move before the court for the grant of compensation payable in accordance with the damage suffered by their bakery business.

Part B

Advise if king of ovens may be liable for breaches of the Australian consumer law 2010 (cth).

Issue: in the present scenario Bruno and Maria in order to start their bakery business took the decision to buy certain utensils and ovens for the production of croissants. For this purpose they visited the showroom of kings of ovens who sell both new as well as second hand ovens. The showroom representative showed them two faulty ovens and sold them to the parties concerned. The parties also signed a 20 page document indicating that the buyers are acknowledging the fact that the ovens may be in working condition or may not be.

Law:  In order to determine that whether the kings of ovens would be liable or not the legislations that is to be followed is the competition and consumer Act 2010(Cth).

Case examples:

Arthur young & co. vs. WA chip & pulp co.

Australian competition and consumer commission Vs. TPG Internet Pty Ltd.

Application: in this case the couples went on to buy the ovens from the showroom of kings of oven in order to meet the demands of the customers for enough number of croissants. Since they were new to the region and were not much well versed with the English language the representative Steve took the opportunity of selling two faulty ovens to the parties concerned. The ovens were sold by the company with a document of 20 pages signed by the parties stating that the products sold may or may not be working. Though the document was being signed by the parties and there was an express term regarding the workability of the products but still the company was not operating according to the rules of consumer laws and fair trade practices.

Under the Australian consumer law which is itself a schedule to the competition and consumer act 2010  states about the principles for the protection of the consumers from the hands of unfair trade practices and protection under the consumer law.   Under section 18 of schedule 2 of the Act states about the misleading or deceptive conducts. In general language it states that a person who is undertaking any kind of activity relating to trade or commerce and thereby engaging oneself in any misleading practices or something deceitful in nature shall be punishable under the act. In this case the company kings of ovens had done the same thing in order to sell their defective products. The act done by the company representative is completely unfair in nature in addition to signing of such an illegal document stating that they are not to be held responsible for the products that are being sold.

Under the provisions of the unfair contract terms the document signed by the parties can be categorized as the term stating in the contract that the products may or may not be working are totally against the interest of the parties concerned or rather they are detrimental on their part. Section 23 of the Act states about the same that if there is any provision of the contract which is unfair or is not is accordance with the standard form of contract.

Section 29 of the Act deals with false or misleading representations about goods and services and expressly makes it clear that if any person which operating in trade or commerce makes any kind false and misleading representations to the customers regarding the quality or value of the goods sold or makes a representation showing that the goods are new then such person is liable to be penalized under the provisions of this Act. In this case Steve the representative of the company represented the ovens to be in proper condition and working well to the parties concerned. Hence the company is vicariously liable for the act of his agent in indulging such unfair trade practices.

As per the consumer protection laws it is the duty of the traders and companies that the products they are serving to the customers are properly working, safe and durable in nature. In this case the representative of the company was very well aware of the fact that the goods are not worthy to be sold to any customers but still he intentionally sold the product in order to deceit Bruno and Maria. Hence it can be very well stated that the company is to held completely liable for the faulty transaction undertaken and the parties concerned can fully ask for exchange of the ovens or repayment of the whole amount of money.

Case law: Arthur Young & Co  vs. WA Chip & Pulp Co

In this case it was held by the judge that the respondent was not able to do his part of job properly and has not given the due importance to his work. The respondent was held guilty for the consequences of his acts and was also held liable for the breach of duty.

In the present case study also the similar kind conduct was shown on the part of the company representative as he willfully displayed the faulty ovens to the customers above mentioned. As the customers were new to the place and failed to show the required knowledge and understanding of the product Steve took this opportunity of deceiving them to the fullest.

Moreover there was no mention of the consumer guarantee in the document which one of the statutory essential and to be in compliance of the Australian consumer laws. Since the kings oven company were conducting a business so it was necessary on their part comply with the relevant consumer guarantees under the ACL which they did not complied with. Hence the document that was being signed by the consumers was completely invalid.

Under section 213 of the Act if a person commits an offence under the relevant provisions of the Act then the court awards the victim with a reasonable amount of compensation for affixing the loss occurred due to such practices. In such case the company is liable to pay the amount adjudicated as compensation to the parties concerned. The purpose for which the oven was being bought by Bruno and Maria in order to meet the growing consumer demand for croissants was never being served as a result of which there was an impact on the total business collection of their business in bakery shop. Under this section the court can also grant an order of injunction in order to stop the particular trade practice as it is violative of the provisions of the consumer protection law.   

Conclusion:  hence it can be very well concluded the company kings of ovens can be held liable for the deceptive trade practice that they undertook in order to sell their products to the customer and moreover the products were not being up to the level of safety standards that are being stated by the Act.

Conclusion:

After completing this assignment it can be concluded that though there is no such fixed statutory compilations in Australia to deal with specific issues but still they adopting and amending their existing laws in compliance with the common law principles and rules. In this assignment a case study was given which included two kinds of issues completely different and varied from each other. In the first  part the issue could addressed and resolved with the help of the common law principles existing in Australia as well as the civil liability Act while in the second part a consumer related issue was being addressed with the help of the existing consumer protection law in subsistence with the competition and consumer protection Act 2010.