1. Ellen was sleeping during the night while her mobile phone was recharging on the bedside table. Suddenly, a fire broke out in the bedroom and her bed caught fire before she could wake up. While she just suffered mild burns, she had to take three weeks off work until making a full recovery from the injuries. After the incident, she learnt that the manufacturer of her mobile phone had been ordered to recall all its 'e-Pear X' models last month because a significant number of phones had caught fire while being recharged. Advise Ellen as to whether the manufacturer owes Susie a duty of care and whether there has been a breach of duty of care. ISSUE (3 marks) Does the manufacturer owe a duty of care to Ellen? Has the manufacturer breached its duty of care? RULE (3 marks) o The defendant owes a duty of care to those people he or she can reasonably foresee are likely to be affected by the defendant's conduct, Donohue v Stevenson (1932) AC 562. o A salient feature of the case that may be taken into account by the court when determining whether a duty of care is owed includes the control the defendant has over the situation and the relative vulnerability of the plaintiff, Harriton v Stephens (2006) 226 CLR 52 63. o A person will not breach their duty to take reasonable precautions against a risk of harm unless the risk was foreseeable; the risk was not insignificant and in the circumstances a reasonable person would have taken those precautions. Section 5B(1) Civil Liability Act 2002 (NSW). o In deciding whether or not a reasonable person would have taken precautions against a risk of harm, Section 5B (2) Civil Liability Act 2002 (NSW) obliges the court to consider: the probability that harm would happen if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity creating the risk of harm. o If the risk of injury is so small that a reasonable person would not have done anything about it, the defendant has not breached their duty of care, Bolton v Stone [1951] AC 150. o If the defendant could have avoided the risk of injury by taking some relatively simple precautions, their failure to take those precautions is likely to be a breach of duty. But if the cost of taking precautions is out of proportion with the risk of injury they are less likely to have breached their duty by failing to take those precautions. Latimer v AEC Ltd [1953] AC 643 APPLY (6 marks) [Students should have developed their arguments by addressing these/similar questions] Does the manufacturer owe a Duty of Care to Ellen? Was the manufacturer in control of the situation in manufacturing the mobile phone? How vulnerable was Ellen in the situation? Was the risk of injury foreseeable, not insignificant, and worth taking precaution by a reasonable person? What are the probabilities of Ellen sustaining an injury if precautions were not taken? How serious is it for Ellen to sustain this injury? How burdensome is it for the manufacturer to take precautions to avoid Ellen's injuries? What is the social utility of the manufacturer's activity? Was the risk of Ellen sustaining these injuries too small that a reasonable person would not have taken any precautions? How costly would it have been for the manufacturer to take precautions to avoid the risk of Ellen's injuries? CONCLUSION (3 marks) The manufacturer owes/does not owe a Duty of Care to Ellen... The manufacturer has/has not breached his Duty of Care to Ellen ... So, Ellen is/is not entitled to compensation for ... Please help complete the IRAC answer, matching apply and conclusion