Consider only the position of the people injured mentioned in the above-mentioned report published by Choice.
1. For those injured, explain the basis of possible liability in the tort of negligence that any manufacturer or distributor of the Thermomix appliance might have to those users. Leave aside the question of the amount of damages, but in your answer refer to common law legal principles and (where relevant) to any relevant civil liability statute provisions that apply in your State.
2. What role do the relevant caps on personal injuries damages play in limiting the extent of possible tort of negligence liability that might be owed to the injured users? In your answer, refer to the relevant civil liability statute provisions that apply in your State.
3. Do the injured users have possible rights under Part 3-5 of the Australian Consumer Law (ACL) against any manufacturer or distributor of the Thermomix appliance? If
so, on what grounds could they bring such an ACL action and what defences might a sued manufacturer or distributor have? Leave aside any question of the amount of
damages under the ACL.
As per the law of negligence, when a person is said to be obligated to carry out the duty of care towards another individual and is responsible for undertaking the reasonable measures to ignore the risks that are likely to occur from any kind of omission of the individual and result in causing injury to the aggrieved individual. Therefore, the injury caused to the injured party should be reasonably foreseeable and must have a direct result of the act committed by the party that had caused the injury. Thus, in order to be successful in bringing the negligence claims, the injured party should establish that there has been a breach of duty of care. Secondly, a relationship based on duty of care must exist between the defendant and the plaintiff. Lastly, the damages caused must have sustained in resulting for the breach of duty.
The duty of care is related to the Wrongs Act 1958 that governs the law of negligence and entails the legal principles of the duty of care. The situation here states that when an individual owes a duty of care is deemed to carry out or execute the reasonable standard of care towards the plaintiff to such a level that any kind of act on part of the defendant is highly probable to cause injury to the defendant. The scenario that has been established in the case of Donoghue v Stevenson  A.C. 562, it was thereafter stated that the neighbor principle was determined which stipulated where an individual can exercise the care for his neighbor. Therefore, an individual who is precisely to get affected either directly by the activities of the defendant is referred to as the neighbor.
When an individual has to determine that he had breached a duty of care then the Court needs to establish whether the defendant has proper and reasonable standard of care while conducting any kind of actions. Such a situation is known as the breach of duty of care. Thereafter, the Court will establish if the reasonable care executed is similar to the standard of care that was carried out by any other person in such a situation. However, if the court states that the caused risk is due to the activities of the defendant then it is expected that the defendant can carry out the extra methods for avoiding the incidence of the risks (Ferrara et al., 2016). Thus, under the specific and incomparable situation, the activities of the case are the relevant evidence that the defendant have been negligent about while causing injury to the plaintiff. In this situation that will be applicable is the principle of res ipsa loquitor which will be implied on the facts of the case.
In the third element, breach of duty of care caused damages results in a situation when the plaintiff must determine that the injuries caused to the plaintiff should be direct outcome of the breach of the duty of care that has occurred by the defendant. However, the plaintiff should thereafter determine the test of ‘but for’ where the plaintiff will not be able to sustain the damages or injuries caused. In case of the breach of duty of care when caused by the defendant, the plaintiff suffered the injuries.
Thereafter, the next concerned element is causation. It illustrates that the plaintiff needs to determine the injuries that have been caused to the plaintiff, has a direct result of the actions on part of the defendant, and is therefore not a remote cause. Negligence is said to have a factual causation of harm and the plaintiff should determine all the facts that have been attributed to the causation of the issue. This statement has been determined under the section 51 of the Wrongs Act 1958. The plaintiff thereafter needs to determine the damage that has been suffered unexpectedly and the plaintiff was not aware of it. Nonetheless, the plaintiff for the loss incurred cannot claim the damages that have resulted from the risk. The innate risk is not usually ignored in spite of executing a reasonable standard of care (Keeton, 2017). While establishing the importance of injury, the Court will able to deem the extent of the harm caused to the injured person because of the injury that has resulted from the breach of duty of care. In relation to the result of the injury, the nature of the harm caused should meet the level of threshold, which is fixed in an essential injury.
In accordance with the Thermomix Appliances, the model of the kitchen had resulted in causing damage and injuries to the owners had gone through the injuries because there have been lack of safety and defects in the kitchen. Such a concept was determined in the case of Donoghue v Stevenson. This case stated that the manufacturers have a duty of care towards the customers using the product. The principle that have evolved in the legal principle safeguards the consumers from the injury that have been suffered by them. The law of negligence states that the Thermomix Appliances had owed to a duty of care for the consumers who have been using their products and hence it is their responsibility to make sure that the products produced is safe for using. Thus, the standard of care should be maintained in this particular case that the company did not succeed in carrying out reasonable standard of care to make sure that the products are safe (Goldberg & Zipursky, 2015). It is obvious to note that the manufacturer must provide the goods without any defect and the ones that are safe. All the existing elements of negligence must be proved. Therefore, the customers are entitled to claim for the damages that had caused personal injury because of the negligence of the company.
As per the Wrongs Act 1958, plenty of limitations exists for the compensation of the non-economic season that is the outcome from the personal injury sustained by the plaintiff. It has been introduced and determined by the Australian law reform commission that the caps can be applied on the non-economic damages to make sure that proper significance is provided to the status of the injured party and the wrongdoer. It can further be said that the damages act as the factors of restraint for the wrongdoers as it concerns paying for the damages. It can therefore be treated as a form of punishment for the individual who have committed the wrong activities. It further prohibited him from executing any kind of breach of duty of care (Riefa, 2016). Few of the thresholds were provided in the legislation as the main objective of it is to decrease the liability of the wrongdoer when the matter is of negligence.
One of the arguments that stated in favor of the determination of each thresholds aim to compensate the injured party for the non-economic damages incurred by him. For receiving the compensation by the injured party, the basic essential element for the party is to determine that he had satisfied the threshold for attaining the compensation in terms of money. On the other hand, the argument that have been discussed is in favor of the above mentioned thresholds. It prohibits the false claims for the insignificant and irrelevant expenditure that is related to the damages of the victims that were said to be capitalized. Lastly, it can be stated that the plaintiffs are suppose to receive the benefits in terms of money only in certain circumstances. The circumstances states that if the injured person sustains the personal injuries based on the level of the damage that was exposed by the claimant because of the negligence caused by the wrongdoer (Fries, Bergmeister & Spindler, 2018). As based on the law of torts and negligence the following measures are to be followed. Firstly, the eligibility of the wrongdoer is to produce sufficient compensation to the aggrieved party. Secondly, in relation to the negligent acts, the infringing parties must not go through any kind of financial consequences. Thirdly, the threshold decreases the measures of risk management.
Nonetheless, there are few specific exceptions that are made available to the rules or law that is in relation to the injuries or damages caused. It can be observed when a higher damage cap is allowed or it is diminished completely. In the state of Victoria, the injured person will be able to compensate for the sustained damages or non-pecuniary injuries if the individual determines that around 30% of the injury results in a serious kind (Mendelson, 2014). Thus, it was further observed that the damage cap for the pecuniary loss is in Victoria.
The issue related to this scenario is that whether the injured consumers have any particular rights under the Part 3-5 of the Australian Consumer Law. Another issue related to this is what will be the available defenses to the manufacturers that have been used against the claim of users. It was observed in the Part 3-5 of the Australian Consumer Law that the liability of the manufacturer will rise in relation to the loss of money or any sort of personal damage, which is suffered by the consumers who have used the products of the manufacturers. Thereafter as per Part 4 of the Australian Consumer Law, the violation of any certain legal provision can lead to serious injuries and they are treated as serious criminal offenses which is subjected to penalty. The complaints that were made to the injuries and damages caused to the customers of the products can be implied and said that the Thermomix Company did not succeed to act according to the provisions that are set out for recalling the goods, which were supplied to the customers. However, they will be liable to pay a fine of $1.1 million.
When a single customer has suffered any kind of personal damage because of the defects that were noticed in the supplied products. The manufacturer for bringing the legal claims against the manufacturer for paying the compensation supplied the products. If the individuals were not being able to recognize the actual manufacturer then they would require proper assistance for identifying the manufacturer (Weinrib, 2014). The legal proceedings should be followed for the identification process and from obtaining compensatory money from the suppliers.
Thereafter, the customers that have suffered a few serious injuries in relation to the defected goods that were supplied by the manufacturers and the company. The injuries that were sustained by the customers does not result from the activities of the third parties and that the company had therefore undertaken sufficient measures for averting this kind of injury. The defendant should also state that the causation of the injury that resulted in the rational and factual mistakes. However, the relevant remedy that is available to the aggrieved consumer is laid down under the section  of the ACL. As per the legal provisions in the case of Thermomix Company, the injured customers will attain the injunction orders from the Court that will be infringing the standard of safety provisions. Thus, of a manufacturer has contravened any consumer guarantee, the injured customer will bring all the legal activities that will result against the manufacturer for a period of three years.
The customers in relation to the defected goods that were produced by the company have suffered serious injuries. Therefore, one will become responsible in making the monetary compensation from the Thermomix Appliances Company. The Part 4-6 of the ACL, lays down the principles and defenses that was discussed and argued by the Thermomix Company for exempting from the liabilities. Part 5 of the ACL states that the monetary penalties is imposed on the wrongdoer by the Court. The civil penalties will only be applied in the wrongdoer that have been provided by the infringer. However, the Thermomix Company did not succeed with the legal provisions in relation to the safety standard of the appliances of the kitchen. As per the provisions of Section 138 of the ACL legal proceedings should be taken against the company Thermomix for the safety defects existing in the kitchen appliance model. According to the Section 271, the customers have the authority to recover for the damages from breaching the consumer guarantees.
Donoghue v Stevenson  A.C. 562
Australian Consumer law, schedule 2 of the Competition and Consumer Act 2010 (Cth)
Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernandez-Cueto, C., ... & Pinchi, V. (2016). Padova Charter on personal injury and damage under civil-tort law. International journal of legal medicine, 130(1), 1-12.
Fries, A., Bergmeister, A. W., & Spindler, M. (2018). Thermomix by Vorwerk–A New Way of Cooking. In Fallstudienkompendium Hidden Champions (pp. 73-90). Springer Gabler, Wiesbaden.
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Keeton, R. E. (2017). Creative Continuity in the Law of Torts. Harvard Law Review, 463-509.
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Goldberg, J. C., & Zipursky, B. C. (2015). The Supreme Court's Stealth Retrun to the Common Law of Torts. DePaul L. Rev., 65, 433.
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Weinrib, E. J. (2014). Toward a moral theory of negligence law. In Justice, Rights, and Tort Law (pp. 123-148). Springer, Dordrecht.
Winfield, P. H. (2016). The history of Negligence in the law of Torts. LQ Rev., 42, 184.
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