get it straight (1 Viewer)

[Golani]

Consumer law doesn't involve tort law...

tort law is about duty of care, you don't have to care for your customers, just fulfill the terms of the contract.
The case of donogue v stevens doesn't cover duty of care it covers implied conditions i.e. fitness for purpose, liablity laws, minimum standards, exactly like the sale of goods act 1923.

People, understand, every single consumer transaction is a contract, sometimes that is oral (i.e. buying a coke) or written (i.e. buying a car).

people who do legal studies: in the cases of:
1) Grant v Australian Knitting Mills 1936
2)Carlic v Carbolic Smoke Ball Company 1893

It was established that manufacturers/sellers had breached the implied conditions of consumer contracts, of fitness of purpose and merchentable quality.
Get over yourself, products have nothing to do with care, consumer law=contracts.

FFS we're talking aobut 1 freakin per cent, one mark out of 100. talk about more important stuff will you......

 

[Golani]

duty of care and tort law is, for example:
a) when you're a plumber and you fuck up a client's pipe and it floods her house and you get your ass sued...
b) when sydney roads makes puts a poll in the middle of the road and people get their care ruined
c) when your dog diggs in your neighbour's back yard...

tort law doesn't apply in consumer matters. consumer law=contracts.

2002 HSC
Maria buys a ticket for a concert to be performed by an international rock group in a public park. The group fails to appear and the concert is cancelled.
By means of which type of law can Maria attempt to obtain a refund?

A Contract law
B International law
C Public law
D Tort law

hmm.....you have 3 guesses, go for it!

 

[MiuMiu]

However, the question here, as Lazarus has pointed out, is who the contract existed betwee. Conceded, Chris had a contract with the shop that sold him the cereal. However, this question stated manufacturer, who has performed an 'act or failure to act to avoid reasonably foreseen injury'. Thus, the logical answer.

Also another viable argument is that this question indicates a tort under the law & society syllabus, contract under the consumer one. Either way, you are diasadvantaged by doing or not doing consumers.

 

[Golani]

You're right, it's very confusing now that i read the whole case.
It does not matter who the contract is with, but because it was under duty of care in the tort law section, then they might decide it as such.

Very confusing.

The entire consumer law topic contradicts the answer of tort law, but i think that they might decide it is after all in accordence with the syllabus and textbook.

 

[adamj]

1) Grant v Australian Knitting Mills 1936

Golani, in this case, Dr Grant was suing on injury, he had recieved dermatitis. And the same can be applied to C v CSBC

 

[Golani]

As a student who does consumer law and knows it very well i am completely puzzled. In the angle of conusmers this ios contract law no question. However, if in the syllabus this thing is tied with tort then it might be tort, because donoghue and stevens is very very similar to the scenario in this question and it's regarded as tort here.

But look at the paragraph on tort in the textbook: "Tort law...is the law which has developed to govern the ramifications of non-contractual civil breaches". There is no way on this earth that The chik from the question in the exam didn't have a contract with the cereal manufacturer and with the store. Why?, because every consumer transaction is an oral contract.


Unfortunately, there is no mention of consumer contracts under the paragraoh of contract law in law and justice issue. But then, on the other hand, why was the 2002 HSC question i provided above was defined as contract law. Because it was indeed a consumer contract.

This is mind blowing. I've changed my mind again. In donoghue v Stevens Donoghue became ill and then sued. Chris didn't become ill. The Donoghue case was 70 years ago, today, everything is regarded as contracts, remarkably even in the case study of Donoghue there is a mentioned of a contract.

I dunno, i really don't...dang...

 

[Suney_J]

Originally posted by Golani
....."Tort law...is the law which has developed to govern the ramifications of non-contractual civil breaches".....

There is no doubt there was a civil breach. but the question is how does a student who didn't study consumers know that a contract existed. you not supposed to bring in ur knowledge of consumer law, jst stick wit what u know bout the definitions of both contract and tort law. to say the answer is contract ur sayin it is impossible to sue under tort law, and vice versa. which isn't tru, it is possible to sue under both laws becuz they were negligent and they didn't fullfill their contract, and tort law exists to remedy civil wrongs it doesn't have to be damages.
so the BOS should accept both answers so the ppl who didn't study consumers wern't disadvantaged.
my advice is look at q.7, doesn't that give u a hint bout q. 8

 

[adamj]

Golani,

I state it again, and so has Asquithian and so has Lazarus, there is no contract between the manufacturer and the consumer.

 

[Golani]

OMG
Donogue v Stevens and Carlil v carbolic smoke ball company

pick up your text book and read it. The whole of it.

Same to you Laz and whoever thinks such a contract doesn't exist alrite?

Enough is enough guys

 

[sugamama]

yeah GOLANI!! NO CONTRACT BETWEEN MANU AND CONSUMER!!!


hehe

The counter argument to that is that there are implied conditions/crap against manufacturers est. under contact law.

And that even though its in the LAW and SOCIETY part, one COULD argue that you shoud have learnt some consumer and that if you buy anything its a contract.

Also consumer law students disdvantage/advantage?

And there was a tort law Q before this. Maybe this was a CONTRACT law Q. OR both?

Bah!

 

[Golani]

Consumer law (the topic) aside, the 2 case studied i listed specifically specify that a contract exists and there for the consumers were compensated in both cases....

In this case if i wasn't doing consumers i put put tort easily for question 8, but consumers teaches you that every consumer transaction is a contract, and that duty of care doesn't exist between a manufacturer and a consumer, especially while the consumer was not hurt (unlike in the 2 cases i'v mentioned).

Eventhough question 8 falls under tort according to the syllabus (or so i gather), the practical law contradicts it, and so does the 2002 question i've posted.
However, when i consider what would the B.O.S go with- common sense and the practical law against the syllabus and the text book, i'd have to say the latter option, which means that probably tort law would be right.

EDIT: not RIGHT, just the chosen answer...

 

[Golani]

OH O.K.

ffs...i'll do it for you. Carlil v Carbolic Smoke Ball Company 1893 is the more clear of the two (p. 15 Heineman).

Issues: "Could the company (which is the manufacturer here, not the retailer) enter into a contract with anyone by making an offer (i.e. the 100 pounds reward) to the world at large- that is, an offer that someone like Mrs. Carlil could accept simply by following the directions (and buying the smoke ball as a regular consumer)?"

Decision:
An offer could be made to the world at large and could be validly accepted by anyone who followed the direction.

I.E:
Eevry consumer transaction is a contract simply as the manufacturer puts its products for sale and offering any special stuff for people who buy it. Not only that there is a contract by the buying, any aspect which is relevant to the product (i.e. special promotions, prizes etc) is covered in the consumer contract.
What's more, according to the sale of goods act there are implied conditions to the contract, e.g. fitness of purposes, minimum and mandatory standards etc. If the product fails to deliver any of these there is a breach of contract, which is enforced by the courts i.e. any breach leads to a civil action.

The law states that the question for Q 8 is contract law, but what will end up being chosen- only G-D knows..

 

[LaZy_KoReAn]

"GET OVER IT"

Whatever the question is, IS JUST 1% you can pick that up easily in the essay's, what big change can miserable 1% make?

Talk about essays or some other bullshit, and LEGAL FINISHED so no more talking about crapo legal fucken law

pfft 1% OMG OMG OMG

 

[beemo]

Golani, unfortunately you seem to have left out a section of the heinemann text. No worries, i got it covered. It states that "Mrs carlil purchased a smoke ball from the Carbolic Smoke Ball Company." This suggests that Mrs Carlil bought the ball directly from the company, so the smoke ball co. acted as both the retailer and the manufacturer. Therefore, it could be established that she had a contract with the company as a retailer, and had no relationship with the company as a manufacturer.

 

[MiuMiu]

*clap calp* Well picked up beemo.....

 

[Golani]

The company is never ever the retailer, and even if you may think that there is some inclearity then Stevens v Donoghue clearly covers the manufacturer (using this word)...

No confusion there..

 

[Ringo]

Originally posted by Golani
The company is never ever the retailer, and even if you may think that there is some inclearity then Stevens v Donoghue clearly covers the manufacturer (using this word)...

No confusion there..

What about Warehouse retailing??

And the difference between this box of cereal and Maria (last years HSC) with her ticket is that she bought the ticket direct from the organisers/ delegated organisers and is therefore liable to sue them as she established a contract with them.
This lady obviously bought her cereal from a supermarket, therefore if the box had been tampered with she could sue them under contract law. But the fault was with the manufacturer, who had a duty of care to make sure no sharp bits of metal were in the box!

 

[Golani]

What about Warehouse retailing??

We're talking about the provision of goods not services, this is totally different...

But the fault was with the manufacturer, who had a duty of care to make sure no sharp bits of metal were in the box!

Theoretically yes, though the manufacturer also has an obligation to supply goods that are fit for purpose, are of minimum standards, manufacturers are liable by the law to provide goods of a certain quality, Donogue v Stevens...

Why you ask?
Because all these are implied conditions under the consumer contract, which exist between the manufacturer and the individual purchaser (/=consumer).



we'll never sagree on this, but the law is on my side (though the syllabus may be on yours...)

 

[Golani]

D V S P. 15


Issue
"Could Donoghue sue the manufacturer when she was not in special relationship with the manufacturer?
That is, she was not in a contract with the manufacturer because she had not purchased the drink and she did not fall into a category that the law had traditionally recognised as worthy of protection".

NOW, before you jump and say SHE WASN'T IN A CONTRACT, read it again.

Now read this:
The paragraph clearly asserts that people who indeed purchase the product from a retailer (the bottle was baught from a restaraunt i.e. retailer, not manufacturer), are in fact, in direct relationship with the manufacturer. It's all there. The only reason of the dispute is because Don didn't buy the bottle, her friend did. Therefore her friend had a contract with the manufacturer, and it was undetermined in the beginning if it applies to everyone, not just the purchaser. Of course it was ruled that yes, everyone is covered.
In the HSC question Chris has ndeed purchased the cereal for himself. Therefore, a contract exists...