Law with Tort of Negligence

1 January 2017

The application is under s1 sale of goods act there is a contract form between me and Mandela where I have agreement, intention and consideration to buy the armchair from Mandela, thus contract is form. Besides that, armchair is considered goods and there is consideration of money where I paid Mandela for $1500 and lastly there is also transfer of property where I paid $1500 for the armchair from his shop. Hence, in conclusion the armchair that I purchased is under Sale of Goods Act.

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Another issue in the question is whether we can insist Tyson (owner) compensate me for $500 that I (buyer) spent on fixing the chair and either return the chair and insist upon a refund, specifically under consumer guarantees s 55 fitness for purpose? In the question the law would be s 55 ‘there is an implied guarantee that where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required, and shows that judgment and seller, the goods must be reasonable fit for purpose’, based on the case Grant v Australia Knitting Mills and Wallis v Russell.

In the question Tyson has breach s 55 fitness for purpose where he is selling furniture in his Classic Antiques Store but the furniture that he sell are fragile. In s 55 there is certain condition we must satisfy. First, buyer must express or the seller has known the buyer particular purpose for the goods they required. Second, has the buyer relied on the seller’s skill or judgment? Third, are the goods of a description which it is in the course of the seller’s business to supply? And lastly, has the buyer ordered the goods under their trade name so that it is clear there is no reliance on the skill of judgment of the seller?

Based on the condition above, I had satisfied all the condition, where I express to Mandela (salesperson) that I want to use the armchair as my new house furniture. On the other hand, Mandela stated that ‘It is a solid old thing. I sit on it all the time. ’ Hence, I relied on his judgment and bought the armchair. Moreover, Tyson business are selling furniture’s where the armchair is considered as a furniture, thus it is also satisfied goods are descriptive under the course of the seller’s business. Lastly, although I didn’t buy the armchair based on the trade name, but I rely on the skill or judgment by Mandela.

In conclusion, the seller has breach all the criteria in s 55 and under s 261 consumer have the right to choose either a refund or replacement of the products if supplier fail to fulfill with consumer guarantee, as a result I can insist Tyson compensate me for $500 for fixing the chair and also can return the chair and insist upon a refund.  Based on the question, the issues would be based on Mandela’s statement that ‘It is a solid old thing. I sit on it all the time. You will be used it safely for many years. Will it lead consumers to believe that it can be used as furniture and can be used safely for many years, specifically under consumer guarantees s 18 Misleading or Deceptive conduct? In the question, the law would be s 18 where ‘A corporation shall not engage in conduct that is misleading or deceptive or is likely to mislead or deceive’, based on the case of Eveready Australia Pty Ltd v Gillette Australia Pty Ltd ,Henjo Investment Pty Ltd & Ors v Collins Marrickville Pty Ltd and Taco Company of Australia Inc v Taco Bell Pty Ltd. In the application, there are 3 elements which must fulfill breach of s 18.

First of all, Mandela engage in conduct with me that the armchair is safe and can be used for many years more which imply a false representation of the fact to me where the armchair was actually fragile. Furthermore, I purchase the armchair under trade and commerce whereby under mutual communication, and I negotiated 30minutes orally with Mandela (salesperson) to sell me the armchair with $1500. Moreover, Mandela conduct was misleading or deceptive where he stated he sits on the armchair all the time where he actually doesn’t sit on it and the fact that the chair was actually fragile.

Refer to Taco Bell to determine whether the conduct is misleading or deceptive that there are certain criteria to justify whether they are mislead or deceived. First, the conduct is based on me which is justified the targeted by the conduct of the defendant. The time I was in Tyson’s shop, Mandela forms an erroneous conclusion to me, that the armchair is safe and can be used as furniture where it was not the fact. Hence, proves the conduct by Mandela skilled of being misleading or deceptive. In conclusion, Mandela has breach the 3 elements in s 18 of ACL for misleading and deceptive. Based on the question, Tyson is the owner of the shop (Principle), Mandela is the store manager and also salesperson (Agent) and I am the buyer (Third Party). In the question the issue is whether or not Mandela had authority to sell the chair at that price under Agency scope of an agent’s authority? Law is express authority where the agreement is created between agent and principal in the written or oral form based on the case John McCann & Co v Pow.

In addition, apparent authority is also applied here where the principle, either by words or conduct, may leads to third party mistaken to believe that an agent has authority to act on the principle’s behalf, based on the case Tooth & Co v Laws. Moreover, duty of agent where the agent must follow the lawful and reasonable instruction of the principle and be honest in performing the job is set by the principle’, based on the case Bertram, Armstrong & Co v Godfray.

Hence in the application, Mandela has breach express authority under agency where he doesn’t follow the oral agreement by Tyson to sell the armchair for at least $3500 and he sold the armchair for me with $1500. Besides that, under apparent authority, Tyson either by words or conduct leads me to believe that Mandela has authority to contract on their behalf and I couldn’t know Tyson has instructed Mandela to sell the armchair for at least $3500.

Based on the question, the issue is whether I can sue Tyson under tort of negligence and claim compensation? The law tort of negligence was recognized in the case Donoghue v Stevenson where the plaintiff must establish that, the defendant owed the plaintiff a duty of care, the defendant breached that duty, and lastly the plaintiff suffered damage as a result of the breach in tort of negligence. Hence in the application, Tyson (defendant) has owed a duty of care to me (plaintiff) based on the test and relationship.

All the risk in the shop must be reasonable foreseeable, however the armchair was not reasonable foreseeable where the armchair looked nice but actually was fragile, even though Tyson does put a sign on the wall of the shop mention that ‘Please do not sit on the chair-fragile- considered sold if damaged’ but as a furniture shop, customers might need to try or test the quality of the products. In addition, there is a vulnerable relationship where Tyson hires Mandela as a manager and salesperson to control the shop, and I was reliant on Mandela, thus Mandela has the duty to protect my safety in the shop.

Hence, Tyson has breach duty of care under magnitude of the risk of likelihood of the occurrence where the armchair was not covered or blocked to prevent customer sitting on it which same case as Bolton v Stone. Thus, he had fail to exercise the required standard of care due to the armchair being fragile and I sit on it, the chair had collapsed under my weight and has been injured when I fell to the floor. Hence, I have suffered damage due to the chair collapsed and I fell to the floor.

However, Tyson have defenses to negligence under voluntary assumption of the risk where the plaintiff had full and absolute knowledge of the risk where defendant had actually put the sign on the wall that said ‘please do not sit on the chair- fragile- considered sold if damaged’. Besides that, the plaintiff had sufficient appreciation of that particular risk where plaintiff had saw the sign on the wall but ignore the sign. Lastly, there was voluntarily acceptance of that risk as the plaintiff knew the chair were fragile but doesn’t care and sit on the chair. Hence, at defendant point of view plaintiff should bear the risk. In conclusion, as I am the plaintiff I can sue Tyson under tort of negligence and claim for compensation, because Tyson should need to be more aware and cover or block the fragile furniture instead of just putting a sign on the wall due to customer might ignore the sign and sit on the chair.

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