Task:Jane and Jia are two influential bloggers who are passionate about makeup. They saw an opportunity to make some money by selling beauty products. They decided to create their own line of lipstick – Rouge - and take full advantage of the online world to market Rouge on social media. Jane and Jia used their own monies and a loan Jane obtained from her friend, Mahit, to place an order for a small batch of lipstick with a famous cosmetics manufacturer ‘Neon Lipstick’. Mahit had no interest in makeup, but he was happy to help his friend, Jane, with her start-up business. Jane and Jia planned to recoup the monies they spent from the profits and then pay the balance to Mahit.
Clarissa, one of the customers who purchased Rouge, has developed an allergy. Her lips became severely swollen as a result of using the lipstick sold by Jane and Jia’s business. Clarissa visited her dermatologist on the same day, and the dermatologist advised her, upon inspecting the label of the lipstick, that one of the ingredients was a prohibited chemical in Australia and no other makeup brand uses it. 2) Discuss who of the business partners are liable for the damages suffered by Clarissa? Please make sure that you only assess the legal risks under tort of negligence. Also support your answer by citing relevant cases.
Only from Law in commerce 5th and 6th edition book will work and Partnership Act 1958 victoria
Issue: The issue pertinent in the case is whether any of the partners liable for the damages which has been suffered by Clarissa?
Rule: The most important factor to be considered in a case of negligence is whether there was a duty of care that was owed by one of the parties and if there has been a breach of the duty of care. The duty of care principle is the most important aspects to be considered in the case of negligence because it is presumed by law that a party has a duty of care towards another party and he shall not act in any way that might cause any loss or damage (Ben-Shahar and Porat 2016). The perspective of acting which duty of care has to be construed from the point of view of a reasonable man. It is important to understand that a person shall be acting like reasonable men and will also be held accountable if any action of his leads to loss or damage to the aggrieved party. The law of negligence also is based on good faith principle which states that a person shall be held liable if it does not keep in mind the best interest of the parties for involved in close Association.
Negligence is a civil liability that takes into account the foreseeability of a reasonable man and how he was acted in a certain situation. If it is found that his actions have directly leaded to a loss or damage, he shall have to pay compensation and damages for his lack of reasoning ability. As per the rule of law as well as tort of negligence, therefore most important elements to be considered in understanding if there has been a negligence and whether the legal duty has been breached (Goldberg, Sebok and Zipursky 2016). The legal duty and obligation which is recognised by law is to state that a person has to maintain a standard of conduct. It is done so as to protect any kind of unreasonable and unforeseeable risk that might happen due to his unlawful behaviour. The law states that if it is found that a person’s conduct has created a potential risk or a possible danger, the law will replacing the duty of care as well as liability on him to make sure that he compensates.
The most important rule that has been established by negligence in tort is that of duty of care and a subsequent breach of the duty to give rise to damage (Epstein amd Sharkey 2016). The landmark case that established the claim of negligence was Donoghue v Stevenson, which stated that four elements had to be proved to establish that there was a duty of care and that negligence had taken place. The four important elements are:
The Caparo test establishes that whenever there is a close proximity between injury and breach duty of care, the neighborhood test shall be applied to understand how close the proximity was. This is a very important step to consider a fair and reasonable way to determine how much duty of care was expected and whether there has been a breach.
The Other important factor to be considered in case of negligence arising out of partnership is that no partnership Act in such a way that the partnership will sustain any kind of loss. The most essential factor in case of partnership is that the liability is shared and therefore the entire partner shall be equally responsible if one of the partners breaches any of his legal duties (Best, Barnes and Kahn-Fogel 2018). The essential aspect of partnership business is that the partner shall have to act in the best interest of each other and their actions shall not have any kind of damaging effect on others. The concept of negligence will only arise in partnership if it can be proved that the partners where aware of their behaviour and the ability of them to cause harm.
Application: In the present case, Jane and Jia are the bloggers who are selling beauty products. They started selling online their beauty products and had named a lipstick Rouge that they were selling online. They had marketed the product on social media and had also taken the help from their friend to raise some money. They were also to help from the friend to place an order for a small batch of lipstick from a famous cosmetics manufacturer. Best friend had no interest in makeup but wanted to help his friends with the startup business. It so happened that one of the customers complained of analogy after buying the lipstick Rouge from them. When she consulted a dermatologist, it was told to her that the lipstick what’s the reason behind the allergy. The ingredient that was being used was the one that had been banned in Australia.
It is important to point out that Jane and Jia owed a duty of care towards the customers. Destructive reasonably and should have used ingredients that were safe to be used for the skin. For any reasonably foreseeable person, it is important to keep in mind that they have a duty of care and being the owners of a cosmetic brand, they should have known the ingredients that they were using for their products (Ben-Shahar and Porat 2016). The duty of care also and tells that they are in good faith and keep the interest of the customers ahead of themselves. In a situation where they were selling cosmetic products, it had to be kept in mind the products could have damaging effect if the ingredients were not safe to be used.
Another important elements to be kept in mind while establishing negligence and breach of duty of care, is the link between the damage and the breach of duty of care. It has been theory established by the dermatologist that the lipstick contain incidence which harmful for the skin and as a result of those harmful effects, the product was banned in Australia. They creating their own line of lipstick and therefore it is important for them to understand the implications of the ingredients that their using and the damage that it could cause on the skin. There is a direct link between the energy that was suffered by the customer and the ingredient used in the lipstick. The second step of breach of duty of care has been established because the product had given rise to allergies which there a direct breach of the legal duties that the defendant owed.
Most important step in establishing negligence is a relation between the breach of duty and damage suffered. That was very clearly established in the case because the allergy was directly a resultant of the product and the ingredients that were used. The dermatologist had inspected the lipstick and the ingredient was found to be prohibited and therefore it is a breach of duty by a reasonably foreseeable person. In cases where it is established that there has been a breach of duty, the court shall make sure that adequate damages are paid and compensation is given in such a way that a grief party is made to restore the original position. In the present scenario there has been a breach of legal duties.
Perfection that exists in the case scenario is which of the business partners are liable for the damages which have been suffered by the customer. The two partners who have started the blog and had also created the online of lipstick are liable for negligence. The friend who had started helping them and also was ensuring that proper money is raised for the blog, did not have any idea about lipstick and also the ingredients that were used. he did not negligently behave in a way that could cause any damage. Different have no interest in makeup and he was only helping his friend for the startup business and it can be clearly stated that there has been no breach of duty from his side because he could not have reasonably foreseen that a situation like that would arise. For creating a liability in case of negligence, there has to be proper knowledge and lack of obligation and accountability. The law mandates that the person has to be responsible for causing the damage. In this case, Mahit had no idea about the product and therefore there can be no link established between his action and the damage that was caused.
It can be stated that the business partners Jane and Jia alarm for causing negligence and using ingredients that were prohibited in Australia. Law assignments are being prepared by our law assignment help experts from top universities which let us to provide you a reliable online assignment help service.
Ben-Shahar, O. and Porat, A., 2016. Personalizing negligence law. NYUL Rev., 91, p.627.
Best, A., Barnes, D.W. and Kahn-Fogel, N., 2018. Basic tort law: cases, statutes, and problems. Wolters Kluwer Law & Business.
Epstein, R.A. and Sharkey, C.M., 2016. Cases and materials on torts. Wolters Kluwer Law & Business.
Goldberg, J.C., Sebok, A.J. and Zipursky, B.C., 2016. Tort Law: Responsibilities and Redress. Aspen Publishers.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.