Legislative Intervention in Law of Negligence MyAssignmenthelp.com

Question: Discuss about the Legislative Intervention in Law of Negligence. Answer: Introduction: The issue in the present case is if Kate and Brent Smyth have a cause of action against Rocky Tours in view of the fact that it has been clearly stated in the terms and conditions of Rocky Tours that the company cannot be held liable in any way regarding any death, personal loss or injury that may be suffered by the consumers at any time when they are on their tour. It has also been stated in the terms and conditions that the provisions of Australian consumer law will not be applicable to any tour that has been purchased through Rocky Tours. In this context, the law provides that the consumer guarantees provided by the Australian Consumer Law cannot be included, limited or restricted by the suppliers and manufacturers. And in the same way, they cannot avoid their obligations by making the consumers agreed that the law of another country will be applicable in case of the contract between the parties are regarding any dispute between them. Therefore the law provides that a supplier cannot tell the consumers that a particular consumer guarantee does not exist or it may be excluded or it may not have a particular effect. In the same way, it has been provided by the Australian Consumer Law that the consumers cannot surrender their rights even if they agree that the consumer guarantees will not be applicable in case of a particular contract (Deakin, Johnston and Markesinis, 2003). For example, in case of no refund signs, the law provides that the signs according to which it has been mentioned that no refunds will be made, are unlawful. Due to the reason that they imply that it will not be possible for the consumers under any circumstances to get a refund, even if there is a major problem present with the goods or services. Due to the same reason, the signs which mention that there shall be 'no refunds on sale items' or 'exchange or credit note only in case of return of sale items' are also unlawful (Kujinga, 2009).). A special provision is present in the Australian Consumer Law in section 64, and it deals with recreational service providers. This provision provides that, according to the Competition and Consumer Act, 2010 and some fair trading legislations of states and territories, the suppliers of recreational services are allowed to exclude, limit or restrict their liability when they do not fulfill the consumer guarantee. According to which they should provide these services with due care and skill and they should be fit for a particular purpose and should be provided within a reasonable time. The suppliers can restrict their liability in case of death or personal injury which includes illness, both mental and physical but not in case of property loss (Tomasic, Bottomley and McQueen, 2002). Under these circumstances, it becomes important to note what is guaranteed by the consumer guarantees under the ACL. The effect of the consumer guarantees mentioned in the ACL is that a guarantee is automatically provided by the suppliers and manufacturers regarding certain goods and services sold by them to the consumers. These rights are present, irrespective of any warranty that has been given by the manufacturer or the supplier. For this purpose, a supplier includes traders, retailers and the service providers, who sell goods or services to a consumer in context of trade or commerce. Similarly, a manufacturer can be described as a person who makes or puts together goods or who has its name on the goods (Gardiner and McGlone, 1998). Therefore the term manufacturer also includes the importer, if there is no office of the maker in Australia. In view of the above-mentioned provisions, a guarantee is provided by a supplier and the manufacturers that the goods shall be of acceptable quality, matching description and the goods will also match samples or demonstration model. It is also guaranteed by a supplier that the goods purchased by the consumer will have a clear title, will be fit for a disclosed purpose and do not have undisclosed securities and the goods will come with the right of the consumer to undisturbed possession. While supplying services to a consumer, it is guaranteed by the supplier that the services will be provided to the consumers with due care and skill, the services will be fit for the specified purpose and (when no time limit has been described), the services will be provided within a reasonable time. Similarly, a manufacturer provides a guarantee to the consumers regarding the availability of repairs and spare parts and also guarantees that any express warranties related with the goods will be honored (McDonald, 2005). Generally, the consumer guarantees are applicable in case of goods and services that have been purchased after 1 January, 2011 by a consumer. It needs to be mentioned that the consumer guarantees are applicable to any type of goods or services with the value of $40,000, and also in case of the goods or services that cost more than $40,000, but that are generally used for personal or domestic purposes. Similarly, the law provides that in case of return on a trailer, the cost is irrelevant. The law further provides that in case the goods or services do not fulfill a guarantee, a right has been provided to the consumers against the suppliers and in certain cases, these are manufacturer, will be required to provide a remedy, and attempt to put right the deficiency or the fault or the failure to fulfill an obligation. When only a minor problem is present with the good or service, it is available to the supplier to choose between providing repair or to offer a replacement or refund to the consumer. On the other hand, when major failure is present with the goods or services, it is available to the consumer to reject the goods or services and either to ask for a refund or replacement or to seek compensation for any drop in value of such goods or services. The consumer protection agencies can also take action against the supplier or the manufacturer on behalf of the affected consumers if the supplier or the manufacturers had failed to fulfill the obligations that have been prescribed for them under the consumer guarantees. In the present case, the law provides that Brent has the right to remedy because the services provided by Rocky Tours did not meet and consumer guarantee, which requires that the services should have been provided with due care and skill. It needs to be mentioned that the consumer guarantees are applicable in case of major as well as minor problems. However, the type of remedy, and we should provide a remedy depends on the problem and the fact that which consumer guarantee has not been fulfilled. It needs to be noted that the recipients of gifts also have the same rights as enjoyed by a consumer who was purchase the goods directly. For example in the present case, Brent can claim compensation from Rocky Tours as the services were not provided with reasonable care and skill and the services were not fit for the particular purpose. In the present case, while booking the tour, Brent had clearly told Rocky Tours that he was concerned regarding the liberal part of the tour as his wife Kat e cannot swim. However, he was told by Rocky Tours that the river part of the tour will be a leisurely cruise on the river in Canada, and certainly it will be fit for Brent and Kate Smith, who were in their late 50s. Brent had booked the tour after getting this reassurance and paid $12,000 for the tour. However, on the ninth day of the tour,, which was the river cruise, the tour guides told them that they will have to get into rafts and travel down the rapids. When Brent told the tour guides that his wife cannot swim and they do not want to go into rafts, they were told that as they were in the wilderness and it was the only way to reach the river, they will have to get in the rafts. However, Brent and Kate's raft overturned, and as Kate could not swim, she drowned. On the other hand, Rocky Tours one to evade their liability in view of the terms and conditions that have been accepted by Brent on their website. According to the legal provisions mentioned above, it is clear that Rocky Tours cannot exclude their liabilities for death or personal loss or injury suffered by the consumers while they are on the holiday. Due to the reason that the statutory consumer guarantees that has been provided by the Australian consumer law cannot be excluded by a party to the contract. At the same time, even if Rocky Tours were providing a recreational service, but before entering into the contract, Brent had clearly told the company that his wife Kate does not know swimming before they were not willing for the river part of the tour. But the company had told them that it will be an eight hours cruise on the river and most suitable for them. But in reality they are made to go in the rafts. References Deakin, S., Johnston A and Markesinis B (2003) Markesinis and Deakin's Tort Law, Oxford University Press Gardiner D and McGlone, F., (1998) Outline of Torts (2nd ed,), Butterworths Kujinga, B. (2009). "Reasonable Care And Skill The Modern Scope Of The Auditor's Duty". GAA Accounting McDonald, B. (2005). "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia". Sydney Law Review. 27 Tomasic, R., Bottomley, S., McQueen, R., (2002) Audits and Auditors, Corporations Law in Australia, Federation Press