This case study focuses on Thermomix which is a high end electrical kitchen appliance supplier. There is an emphasis on the case filed against the business on being misleading, deceptive and mean.
- Explanation of the possible liability in the tort of negligence that manufacturer or distributors of Thermomix appliance might have on its users.
- Stating the role of relevant caps have on personal injuries and damages limit the extent of possible tort of negligence liability.
- Identifying the possible rights of injured users under Part 3-5 of the Australian Consumer Law (ACL).
Commercial law deals with the several legal aspects related to corporation, securities & derivatives, banking, taxation, trade and consumer law. On the basis of cited case situation, Thermomix in Australia Pty Ltd (TIA) offers high-end electrically powered kitchen appliances to the customers. Such appliances are manufactured by German company namely Vorwerk & Co KG. Thermomix imported such appliances and sell the same in Australia. In this, report will provide deeper insight about accountability pertaining to the tort of negligence. Further, it will shed light on the relevant caps associated with the case of Thermomix. It also depicts rights which customer’s posses on the basis of ACL.
1. Explaining the basis of liability in the tort of negligence that manufacturer or distributor of Thermomix appliance
Given case scenario presents that TIA misled customers through false representations. Moreover, it denied in relation to having knowledge about safety issues. Due to the defect in appliance such as TM31 people being scalded or burned. Further, Choice presented 87 incidents occurred due to the use of Thermomix appliances. Out of 87, 18 incidents required special care and treatment from nurses. In this, issue is to ascertain the liability of Thermomix’s manufacturer and distributor in against to the injured person and product.
In accordance with the laws and legislation, manufacturers, distributors, suppliers, retailer and other authorities who provide customers with the products are held accountable for the injuries associated with the same. Consumer Protection Act (CPA) or the common law of negligence presents that manufacture may be held liable for defective products or any of its components offered (Product liability for negligence, 2018). Thus, irrespective of any contractual limitations pertaining to liability manufactures or suppliers owe responsibility towards the customers.
From assessment, it has identified that product liability claim occurs when aspects in relation to warnings failure, manufacturing and designs defect are identified. An Australian product liability laws include both common laws and legislation. Laws entail that person can demand for the compensation or damages on the basis of following aspects:
The common law tort of negligence
Breach of provision under Australian Consumer Law
Australian Consumer Law imposes statutory obligations or strict liability in front of manufactures, suppliers and producers pertaining to safety defects.
In Australia, tort law includes both common laws and legislation. Tort implies for civil wrong which may be sued upon private individuals by others (Negligence, 2018). In other words, it can be depicted that innocent person, who suffered loss or damages due to the negligence of manufacturer / supplier, has right to make sue for getting compensation.
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On the basis of House of Lords negligence is considered as tort and plaintiff has right to take civil action inn against to the defendant party. As per Negligence Act, manufacturer owes duty of care towards the offered by them to the end customers (Proving Fault: What is Negligence?, 2018). Referring the case laws or situations of Grant v Australian Knitting Mills (1936) and Donoghue v Stevenson, it can be presented that Vorwerk & Co. KG as well as Thermomix in Australia Pty Ltd (‘TIA) owes duty of care towards the customers. Thus, customers have right to file case in against to the manufacturer for loss or damages suffered by them. Further, according to the legislation, Vorwerk & Co. KG and Thermomix in Australia Pty Ltd is liable to give compensation to the parties who suffered loss due to the defective products.
2. Stating the role of relevant caps on personal injuries damages
The law of torts applicable in Australia are not limited certain legislation, however, it has been able to evolve with the judgements made or any other type of common or case law. However, each state also has been involved in formation of the statutes that overrides the existing common law related to the subject matter. The cases have especially evolved in the areas of personal injuries, negligence and defamation, which have proved to be necessary (Goldberg, 2012). The individual is responsible to take burden of taking precaution so that any type of harm can be subsided. It is the common method adopted by the plaintiffs with the aim of avoiding any type of physical and mental harm being initiated to the employees working in the organization. Subsequent actions being taken by the employer with respect to the precautions measures can help in affecting the risk of liability that can be attached to the situationat the time of harm being already done even after precaution has already been taken by the employer (Law of Negligence and Limitation of Liability Act 2008 (NI), 2017).
Moreover, Australian law also specifies regarding duty of care owned by the employer to ensure that all the important steps have been taken to ensure health and safety of the employees working in the organization and of the one who are going to use the ultimate products being sold by the organization. If the negligence was the necessary condition of the occurrence of harm then in that case, it is referred to as factual causation (Solove and Schwartz, 2014). Further, if it has been ascertained that the reason of harm has raised due to factual causation, then in that case, it is important for the court to find out that why the responsibility of giving warning to the customers was not initiated to the customers even after knowing the fact that it can result in injury.
The law of tort also states regarding undeniable duty of the individual which helps in ensuring that the required duty has been fulfilled by the organization so as to ensure that the ultimate consumer is aware of its pros and cons. Section 19 states regarding requirement of giving warning to the consumers if the product being offered by the organization is not appropriate enough and can result in any type of injury to the individual. In this scenario, it is important for the organization to pay for the damages due to which any type of injury has occurred (Geistfeld, 2014).
In case of claim of damages that results from negligence, as per section 110 (4), the injury suffered by the party due to negligence of the organization, then, it is the duty to ensure that all the compensation resulting to alleged negligence has been paid inclusive of those which has certain amount of monetary benefits attached to it. Hence, in the given case scenario of Thermomix as well, the organization is liable to pay for the damages.
3. Presenting the level to which injured users have possible rights as per Australian Consumer law
Australian consumer law is developed with an aim of providing protection to the people in the supply of products and service by organisation. ACL has also stated that the statutory consumer business guarantee and the other important injuries which have caused due to in defective products which also fall within category of major liability. In present case, there are is no requirement to state the fault of manufacturer from the side of claimant party in situation of breach of guarantee of consumer (Kolivos and Kuperman, 2012). Other than this, customers have also identified and stated that appliance provided by Thermomix is not fit for intent they have been manufactured and this quality of products are usually not acceptable. In this case, claimants required to state or provide that products have issues and safety problems.
As per law, parties to agreement are required to agree on terms and condition of sale without any misconduct and negligence. They are also required to ensure that products should be as per description which is provided by seller.
Moreover, common law will tend to regulate the contract and although the other important legislation of ACL and it is essential for claimant parties to established these following requirements which are mentioned above:
- Needs to determine loss and damages caused to them
- Manufacture has conducted contravening to the provision of ACL.
- Moreover, loss which has been caused to plantiff was due to defendant conduct.
Moreover, this can also be understood with the help of case Leeks vs FXC corporation (2002). In this, organisation has produced the reserve parachute within USA which was considered as their principle place of business (Corones, 2014). Mr. Lee has also purchased the parachute within Australia which is supplied by importer and buyer has also utilized the products for two times. Further, buyer has identified that there is some malfunction within parachute which injury to plaintiff.
There are various important cases have been analysed related to the consumer protection legislation and decision which are provided by judge to understand the steps which are needs to be taken by consumers against the plaintiff.
As per scenario, buyer has right to file complain against manufacturer of parachute on the basis of various provisions which involves unacceptable characteristics or quality of parachute and defect in goods within the provision of ACL. In addition, Mr. LEE has also made compliant for importer of being a deemed producer. In this case, court has provided judgement that buyer has right to sue both the parties such as manufacturer and deemed manufacturer.
Moreover, consumer posses the power and ability to claim damages caused to them for personal injury due to these defective products (Ramsay, 2012). It is also needs to involve those business claims which are made through individual. It also requires involving those claims which have been made by individual who has purchased the products along with those individuals who have suffered from injuries from the products acquired by other person. Moreover, consumer are also able for taking legal actions in order to get consideration similarly as the important legal action.
Part 3-5 of ACL
Chapter three of this Australian commercial law is developed with an aim to prohibit some specific problems as well as misconduct. Moreover, the legal regulation of this chapter will also regulate the chapter 2 of this legislation.
Chapter 4 of this legislation will also state some offences in accordance with to specific matters that has been involved by chapter 3. This law provides understanding that major specific breaches of contract or law which are serious within nature towards an extent which are treated as criminal legislations have been applied.
Chapter 5 determines the enforcement and the remedies that are available to customers. Findings states that ACL possess the enforcement rights at national level which can also be utilized by regulators of business and consumer law (Howells and Weatherill, 2017). This will also involve some civil penalties and also remedies in situation of breach of legal provisions.
For example: the ACL will delegate power to customers to claim amount of refund, product repair or replacement in condition when the Thermomix will not be able or fails to satisfy the major obligations under the customers guarantee act.
However, in present scenario, all people or customers of Australia who has faced damages and personal health injuries due to misconduct and negligent act of Thermomix products will be able to make complaint and file a suit against the both the parties such as seller and importer on the basis of chapter 3 and 4 of ACL and also entitled to recover compensation. It also delivers the safety to customer against misconduct and false representation of manufacturer.
According to judgement of court within same case of Leeks v FXC Corporation (2002), the individual who had purchased the products and service of Thermomix and faced heath injuries are entitled file suit against manufacturer and deemed manufacturer (Whish and Bailey, 2015). They are also entitled to demand the demand compensation against the major requirement. Moreover, both the producer and deemed business manufacturer is considered as liable towards the individual who have faced serious damages due to the misconduct of them. This major section has provided clear understanding that parties in contract are required to consider all terms and condition while purchasing products and service, Further, it is also essential for manufacturer to provide product as per description of various important business outcomes. It is also essential for consumers to states actual damages which they have also faced after purchase of products (Australian Law Reform Commission, 2012). At last, it has been concluded that chapter 3 to 5 of this consumer protection law in Australia. These parts will provide the various powers and rights to consumers who have purchased Thermomix products. Moreover, these important parts of ACL has been considered as misconduct and negligence as the criminal conduct and it has also provided remedies for the same.
By summing up this report, it has been concluded that manufacture of electrical products owe accountability towards the person who suffered loss. It can be seen in the report, as per laws and legislation, manufacturers are required to provide customers with safe products. Besides this, it can be inferred that suppliers or manufacturers need to take proper caution which in turn avoids harm to others. It can be summarized from the report that TIA is held accountable for the loss or injury suffered by the persons. Further, it has been articulated that Australian Consumer Law offers high level of protection to the customers in relation to the aspects of supplying goods or services. It can be stated that law imposes strict liability in front of TIA due to the supplying aspect of defective electrical products.