BULAW5914 Commercial Law
Joe and Kamela got married earlier this year. After they returned from their honeymoon, they moved into Joe’s house. Joe knew that the house was very cold during winter and that Kamela does not like the cold.
So, prior to the move, Joe went to a discount department store, Paymart, and asked the salesperson, Steve, to help him select a suitable heater. Steve showed Joe a number of heaters, both electric and gas. Steve recommended the gas heater the Hades 5000 as suitable for an area of the size of Joe’s open plan kitchen, dining and lounge room. Steve also pointed out that the unit is energy efficient and has a mechanism for keeping the air in the room at a constant temperature.
Joe purchased a Hades 5000 and another unit, the Hades 2000, which he placed in the bedroom of his house. The Hades 5000 cost $4,000 and the Hades 2000 cost $3000.
Both units were installed by Fred Kemper, a gas fitter who is a sole trader. Fred was recommended by Steve.
Joe and Kamela were at home one day when they heard a strange fizzing sound coming from the loungeroom.
Both Joe and Kamela were injured by flying debris.
A subsequent investigation found that the fault was more likely to be in the heater than the installation.
To add insult to injury, Joe’s gas bill for the period when the heaters were operational is very high.
The Hades 5000 is manufactured by a Russian firm, Defektny located about 50 kms from Moscow. The units are imported into Australia and distributed by the company Hot Stuff Pty Ltd.
Answer both questions:
1. Advise Joe and Kamela what rights they may have to sue in the tort of negligence. Please refer to case law principles and statutory provisions in your answer. (15 marks)
2. Advise Joe and Kamela if they can sue under the Australian Consumer Law. If so, who would they sue, and on what basis? Please refer to specific statutory provisions of the ACL in your answer. (20 marks)