quick question (1 Viewer)

[sally05]

I know the answer to this question from the 2003 HSC multiple choice, but i dont understand why the answer is a) and not b)...so why can't it be negligence and thus go under law of torts??
8. Chris bought a packet of cereal from a corner shop. She opened it and discovered pieces of metal mixed with the cereal. Chris wishes to take legal action against the manufacturer of the cereal.
Which type of law will she use?
(A) Contract law
(B) Tort law
(C) Criminal law
(D) Property law

 

[*n.a.t.a.l.i.e*]

I went to a seminar for Legal Studies and we went through this particular question and I read it not long ago. The teacher had said it does not correspond with tort law as there is no such injury or damage incurred as such from that negligence, instead it pertains to contract law, in that a contract is essentially made in the purchasing of goods from that manufacturer. I can see exactly where you are coming from with negligence, but all I can see from what the teacher said is that there was no damage or injury brought about. Please correct me if I am wrong.

 

[sally05]

I went to a seminar for Legal Studies and we went through this particular question and I read it not long ago. The teacher had said it does not correspond with tort law as there is no such injury or damage incurred as such from that negligence, instead it pertains to contract law, in that a contract is essentially made in the purchasing of goods from that manufacturer. I can see exactly where you are coming from with negligence, but all I can see from what the teacher said is that there was no damage or injury brought about. Please correct me if I am wrong.

Thank you so much, i finally get it!

 

[*n.a.t.a.l.i.e*]

No worries it makes sense to me, feel free to correct me though. The HSC Advice Line is very helpful, I recommend it, you could always verify it tomorrow.

 

[sally05]

yeah i've called advice line and they are REALLY helpful
do teachers get payed to do that or are they volunteers cause if they're volunteers, they are super nice people!

 

[Jago]

i think they do get paid

 

[*n.a.t.a.l.i.e*]

I was wondering about that. I know some of my teachers are very reluctant to give up weekends of holidays for their students. THAT'S THE INCENTIVE. I mean 4pm-10pm, or however long a teacher stays for, on a holiday break, would not be a love-job.

 

[sally05]

I was wondering about that. I know some of my teachers are very reluctant to give up weekends of holidays for their students. THAT'S THE INCENTIVE. I mean 4pm-10pm, or however long a teacher stays for, on a holiday break, would not be a love-job.

hmm so thats why they're nice...nah joking, they're still nice, like i'd get sick of the phone ringing non-stop for like 4 hours

 

[*n.a.t.a.l.i.e*]

Same here, I rang the Studies of Religion line 3 times in one night and got the same lady every time.

 

[Jonathan A]

It was dumb question that has BOS up for ages debating over it in the 2003 exam. To clarify, YOU DON'T NEED A DAMAGE TO SUE IN TORT. Some torts are actionable per se, meaning so long as a tort is committed, you can sue. Negligence however needs a damage. Privity prevents suing the manufacturer, however the Trade Practices Act has provisions on suing the manufacturer. Answer would be Contract Law - although very stupid.

 

[Jonathan A]

I went to a seminar for Legal Studies and we went through this particular question and I read it not long ago. The teacher had said it does not correspond with tort law as there is no such injury or damage incurred as such from that negligence, instead it pertains to contract law, in that a contract is essentially made in the purchasing of goods from that manufacturer. I can see exactly where you are coming from with negligence, but all I can see from what the teacher said is that there was no damage or injury brought about. Please correct me if I am wrong.

You are mostly correct. However you don't purchase goods off a manufacturer. You buy them from a retailer who got them from a wholesaler, etc... There are about 3 or 4 parties involved. Privity if it was not affected by the TPA would prevent a contracts claim. Otherwise, great explanation!

 

[*n.a.t.a.l.i.e*]

Thankyou, but now I am a little bit confused......do you mind explaining it again to me? I am sorry to be a pain.

 

[Jonathan A]

Ok.

The two areas a person is likely to sue in such a case is contracts and in torts.

Torts are civil wrongs and include trespass, negligence, defamation etc... Some torts are actionable per se. These are mainly intentional torts like trespass. In thise cases I need only prove that the tort occured and I can sue. However because this was most probably a negligent act/omission, Chris could only sue in negligence. The problem is negligence needs a damage, some form of injury or loss recognised in law. THe fact she saw the metal in the cerial is not enough - hence really can't sue in torts.

Contracts on the other hand is dealing with situations where people enter into agreements. If one breaches the contract, the other can sue. In this case Chris could sue because there was a breah of contract here. Our problem is Chris under common law (precedents) does not have a contract with the manufacturer, but a retailer. This is called the privity of contract doctrine.

There are exceptions to the doctrine, one of them is the statutory reform of the Trade Practices Act allowing consumers to sue manufacturers. So the answer is contracts.