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Elements of Negligence under Common Law

Describe about the Commercial Law for Proposed Employments.

1. Thermomix supplied certain kitchen appliance to several households in Australia and most of the users of Thermomix complained of its malfunctioning along with causing injuries to them. Some also complained that they suffered from burns and had to undergo medical treatments. Some even stated that Termomix did not take any measure to make good their losses nor did they try to mend the appliances. In fact they turned deaf ears towards them. As such, it needs to be analyzed whether Thermomix is liable for negligence in the matter or not and whether the Civil Liability Statute in Australia holds strong statutory provisions to make Thermomix indemnify the losses of the people. Negligence is said to occur when a person fails to use the reasonable care that he was supposed to take so that he could protect others from undergoing any harm. The claim for negligence arises the moment such a failure on part of a person results in some kind of harm or injury to the other person. To make an individual liable for negligence the Courts require that a person should be able to prove certain elements (Beever, 2016) which shall be discussed in the subsequent paragraphs.

The first question that needs to be determined is whether the defendant owed a duty towards the plaintiff or not (Leeks v FXC Corporation, 2002). This duty may arise in several ways. For instance, when a person drives a car on the road, he has a duty that he should drive safely and not cause unnecessary harm to the passers-by or the pedestrians. In the given situation, when Thermomix was manufactured by the manufacturers or the distributors in Australia were distributing the products, they owed a duty of care that their products would not cause any inconvenience to the users or not bring upon unnecessary harm on them. However, the product reviews and the substantial evidence clearly indicate that Tehrmomix failed in substantiating this duty and thus they erred in this duty on their part.

The second determining question is regarding the breach of duty and it states that once the existence of duty is established, it needs to be checked whether the defendant made a breach of that duty or not (Rasell v Cavalier Marketing (Australia) Pty Ltd, 1991). It means that one must be able to show that the defendant failed to act as a reasonable person in establishing and fulfilling his duty that he owed towards the plaintiff. For instance, if a person drives a car on the road and in spite of knowing that the brakes of his car are not working well, he chooses to drive his car, he necessarily makes a breach of his duty towards the pedestrians and other vehicles on the road. In the given situation, Thermomix even after receiving few initial complaints failed to exercise their duty of care and continued to manufacture faulty products that caused inconvenience to the people and made them suffer losses.

Duty of Care

The third requirement for proving negligence is the fact that the breach of duty of the defendant should be the cause in fact for the losses undergone by the plaintiff. This in other words means that the plaintiff must be able to show that the negligent act of the defendant was the cause of the harm that he underwent (Getzler, 2010). Traditionally, this aspect of the tort of negligence under the common law is proved by showing that ‘but for’ the actions of the defendant, the plaintiff would not have been injured (ACCC v Glendale, 1998). For instance, ‘but for’ the other driver running the stop traffic sign, the pedestrian would not have been actually injured. In the given situation, it is evident from the reviews of the users of Thermomix that all of them underwent their injuries or suffered some harm because of the faulty working of the Thermomix. Had the apparatus functioned well, the accidents would not have taken place. But the failure was entirely on the part of the manufacturers and the suppliers to not take care and distribute faulty products to the households because of which the people in fact underwent several physical and mental injuries (Giliker, 2010).

The final requirement that needs to be established in the courts is regarding the quantum of damages. The plaintiff in a claim of negligence should be able to prove damages in the Court so that he wins his claim (Turner, 2001). These damages are generally proved in the law courts by taking refuge to doctor bills, lost wages and the pain and agony that is caused because of the injury in the process. The given reviews of the users of Thermomix established beyond any reasonable doubt that they underwent damages. They suffered from injuries. Their kitchens were spoilt beyond reasonable scope of recovery. Their investments made on the purchase of Thermomix were a waste in its own. Thus, it can be said that the people did suffer damages because of the negligence of the manufacturers as well as the distributors of Thermomix.

Hence, from the above discussion it can be concluded that Thermomix is negligent in the given situation. Thus, they are responsible for liability under the common law. However, their liability is not limited to common law itself ("What is Negligence and When Does A Claim For Negligence Arise? - Bruce A. Blaylock, Attorney at Law", 2014). They are also responsible under the Civil Liability Statute. This shall be discussed now. The Civil Liability Statute has codified the common law principles in statutory provisions. The Division 2 states that the defendant should owe a duty of care towards the plaintiff and that duty was breached by him thereon. Division 3 substantiates that this should have resulted in a damage of some kind to the plaintiff. In the given matter, it should be noted that for Thermomix, the risk was foreseeable and was also not insignificant (Widmer, 2012). Thus, under Section 5B, Thermomix becomes responsible. Under Section 5D, it has been stated that factual causation should and scope of liability are principal to prove negligence. Obvious risk happens to be a defense to a claim of negligence under Section 5F. However, this defense cannot be taken by Thermomix in the given situation. There is no obvious risk in the matter. The users could not have anticipated that the product would start malfunctioning and cause injuries to them. On the other hand, it was necessary on the part of the manufacturers that they should have taken the necessary care because they were aware that the products would be used by the users and these kind of malfunctions could also have resulted in fatal injuries (Richard, 2016).

Breach of Duty

Thus, under common law as well as under Civil Liability Statute, it can be said that Thermomix is liable in the matter for negligence.

2. Caps and limits exist on personal injuries in Australia. In case of injuries, the damages suffered by the people might be of several kinds. In all instance, it is not a sound measure to indemnify all the losses of the plaintiff. Hence, several statutes and legal concepts have been introduced that limit the damages that are awarded in cases of personal injuries. Economic damages are those concrete damages that the plaintiff is made to pay out as a result of his injury. In the given instance, this can be the medical bills, the kitchen damages and the wasted amount invested on Thermomex and so on. On the other hand, non-economic damages are the other category of damages that are subsidiary to the economic damages are result in pain and suffering and loss of enjoyment of life (Barker, 2012). In most of the instances, while economic damages can be proved with the billing amounts, b=non-economic damages cannot be proved. The jury in the determination of non-economic damages is forced to base the damage awards of the plaintiff on past losses and future calculations and thus it become necessary to make a more subjective calculation of the matter ("Cap on damages | ALRC", 2016).

As an underlying response, one may ponder - what is the purpose of a damages cap? It might appear that damage caps are out of line to offended parties, the general population that bring the claim. In the event that a jury of the offended party's companions discovers that an offended party merits $10 million in harms, why ought to the courts abrogate that choice? Despite the fact that there is legitimacy to this scrutinize, the counter-contention is basic: on the grounds that numerous individuals trust high recompenses can put a delay the general economy (Corones, 2011).

Damage caps are an endeavor to deal with the high expenses of working together (which are at last gone on to the purchaser) by diminishing the risk of administration suppliers. One can take case around a restorative negligence case. A specialist's mix-up can have destroying outcomes for his or her patient, and juries may be slanted to grant a large number of dollars to the patient in non-financial harms. As a rule, it is the specialist's restorative misbehavior insurance agency that pays those harms - beginning a chain response of expanding expenses (Skerbic v MacCormack, 2007). To compensate for the millions paid in damages (and the danger of future vast damages recompenses); the insurance agency expands the expenses to the specialist connected with medicinal misbehavior protection. This thus implies it will cost more for the specialists to practice medication, which at last implies that patients will need to pay more on their doctor's visit expenses to take care of these expanded expenses. Notwithstanding dealing with the expenses of working together, damage caps likewise demoralize individuals from attempting to play "claim lotto" - bringing a suit essentially on the grounds that they think they can win a great deal of cash. Courts need to guarantee that the equity framework is saved for individuals who are really harmed and looking for remuneration ("Damage Caps and Other Limits on Personal Injury Compensation - AllLaw.com", 2016).

Tort reform supporters contend that it is troublesome for juries to allocate a dollar quality to these misfortunes with the direction they are regularly given. They express that there is no premise for non-monetary harms, and uncapped non-financial harms damage the evenhanded standards of equity by being naturally entirely arbitrary, in light of the fact that distinctive juries will dependably come to various results ("What is a Damages Cap? - FindLaw", 2016). Due to the profoundly charged environment of individual harm trials, they fear some unbounded non-monetary harm grants. In Ernst v. Merck, a Texas Vioxx items risk case, the jury issued a decision of $24 million in compensatory harms, which incorporates non-monetary harms, for a dowager of a 59-year-old long distance runner who kicked the bucket from arrhythmia, or a sporadic pulse, that could have been anticipated had Merck given notices about the medication. Tort change supporters call attention to the dowager had not been hitched quite a while, and propose this honor was over the cap (James Spittles v Michael’s Appliance Services Pty Ltd, 2008). Since tort law has verifiably been an issue of state law, states have the ability to build up a sacred right to a trial by jury in common cases. Truly, juries have chosen both the topic of obligation and the topic of the amount of harms to grant in tort cases, subject to directions on the law by a judge. A few state investigative courts that have considered the issue have struck down harms tops as an infringement of state constitutions.

Causation


3.
Under the Australian Consumer Law, it has been mandated that the aggrieved party can take actions against manufacturers of goods for inherent safety defects in the goods because of which they suffer a loss under Part 3-5 of the ACL. Under this part, those consumers who suffer any kind of loss or damage may recover compensation from the manufacturer (Miller, 2011). The liability can be escaped by the manufacturer if and only if he can prove beyond reasonable doubt that the defect in the good could not have been discovered by him even if accurate checking under the current available scientific and technical knowledge of the matter (Covey-Hazell v Getz Bros & Co (Aust) Pty Ltd, 2004). There are specific compensations that can be obtained from the manufacturer for any loss or damage that results from a safety defect and this includes injuries suffered by him Under Section 138 of ACL, loss or damage undergone by any other person other than the individual who went through the loss under Section 139, loss undergone in some way because other consumer goods have been destroyed or damaged because of the defect under Section 140 or any other loss or damage because of inherent fault in safety of the product under Section 141 of the ACL (Epstein, 2010).

It is beyond doubt in the matter of Thermomex that the manufacturers of the products erred in substantiating their position under Section 9 of the Act. The manufacturers of any product have a significant control to ensure that their products do not have any kind of safety defects in them and hence they ensure that their products are labelled, marketed and supplied to the users with safe practices in view. However, if this safety compliance is not guaranteed by them, then by default the manufacturers become liable under the matter.

It should also be noted that both the suppliers as well as the manufacturers of Thermomex have certain liability in the matter. Though primarily, the liability is imposed on the manufacturers under the ACL, yet in certain circumstances, the suppliers of goods and services also become liable. A supplier under Section 7 of the ACL steps into the shoes of the manufacturer if he does not have a proper office in Australia and subsequently becomes identifiable as the person who either manufactures or supplies the goods in any instance (Effen Foods Ltd v Nichols, 2005).

Thus, under the tort law as well as the ACL, the manufacturer as well as the supplier owes a duty of care to those who are supplied with their goods in accordance with the general duty of care principles (Glendale Chemical Products Pty Ltd v ACCC, 1998).

There are very specific and limited defenses that the manufacturers can take in the matter. There are restricted means by which suppliers can constrain their obligation for the supply of damaged products. Nonetheless, there are steps that suppliers may take to confine their presentation, particularly as between those in the chain of supply (conversely with introduction specifically to buyers). Legally binding terms restricting risk can be successful as between suppliers (counting producers) (Laws v GWS Machinery Pty Ltd, 2007). Significantly, suppliers can't avoid or restrain the purchaser insurances gave by the ACL. Under Section 64 of the ACL, any legally binding term that implies to confine these rights is void to the degree that it looks to reject or constrain rights to a level beneath that accessible under the ACL.

Furthermore, endeavors to bar statutory rights by posting sees conflicting with the ACL may result in a maker being arraigned by the ACCC for deluding or misleading behavior, which may bring about fines or requests requiring remedial publicizing. As noted above, whether an item has a 'security deformity' depends to some extent upon its showcasing, marking, and proposed employments ("Liability of manufacturers for goods with safety defects", 2016). Likewise, watchful regard for giving clear and definite notices and marks and data will go some approach to secure against risk. Notwithstanding, as noticed, this can give just so much insurance. It is likewise vital to take suitable consideration in item plan and make, and to information with respect to item utilize patters (Miller, 2009).

References

ACCC v Glendale, 40 IPR 619 (1998).

Barker, K. (2012). The law of torts in Australia. South Melbourne: Oxford University Press.

Beever, A. (2016). A theory of tort liability. Oxford: Hart Publishing.

Cap on damages | ALRC. (2016). Alrc.gov.au. Retrieved 13 September 2016, from https://www.alrc.gov.au/publications/11-remedies-and-costs/cap-damages

Corones, S. (2011). The Australian consumer law. Rozelle, N.S.W.: Thomson Reuters (Professional) Australia.

Covey-Hazell v Getz Bros & Co (Aust) Pty Ltd, ATPR 42 (2004).

Damage Caps and Other Limits on Personal Injury Compensation - AllLaw.com. (2016). AllLaw.com. Retrieved 13 September 2016, from https://www.alllaw.com/articles/nolo/personal-injury/damage-caps-limits-compensation.html#

Effen Foods Ltd v Nichols, NSWSC 332 (2005).

Epstein, R. (2010). Toward a General Theory of Tort Law: Strict Liability in Context. Journal Of Tort Law, 3(1). https://dx.doi.org/10.2202/1932-9148.1100

Getzler, J. (2010). Richard Epstein, Strict Liability, and the History of Torts. Journal Of Tort Law, 3(1). https://dx.doi.org/10.2202/1932-9148.1095

Giliker, P. (2010). Vicarious liability in tort. Cambridge, UK: Cambridge University Press.

Glendale Chemical Products Pty Ltd v ACCC, 90 FCR 40 (1998).

James Spittles v Michael’s Appliance Services Pty Ltd, 71 NSWLR 115 (2008).

Laws v GWS Machinery Pty Ltd, 209 FLR 53 (2007).

Leeks v FXC Corporation, 118 FCR 229 (2002).

Liability of manufacturers for goods with safety defects. (2016). Olbrychtpalmer.net. Retrieved 13 September 2016, from https://olbrychtpalmer.net/2015/04/06/manufacturers-liability-for-safety-defects.html

Miller, R. (2009). Miller's annotated Trade Practices Act. Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia.

Miller, R. (2011). Miller's Australian Competition and Consumer Law annotated. Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia.

Rasell v Cavalier Marketing (Australia) Pty Ltd, ATPR 41-152 (1991).

Richard, R. (2016). Negligece and Liability. Retrieved 13 September 2016, from https://thismatter.com/money/insurance/legal-liability.htm

Skerbic v MacCormack, ACTSC 93 (2007).

Turner, C. (2001). Australian commercial law. Sydney: LBC Information Services.

What is a Damages Cap? - FindLaw. (2016). Findlaw. Retrieved 13 September 2016, from https://injury.findlaw.com/accident-injury-law/what-is-a-damages-cap.html

What is Negligence and When Does A Claim For Negligence Arise? - Bruce A. Blaylock, Attorney at Law. (2014). Bruce A. Blaylock, Attorney at Law. Retrieved 13 September 2016, from https://www.blaylocklaw.com/blog/2014/06/negligence-claim-negligence-arise/

Widmer, P. (2012). Paula Giliker, Vicarious Liability in Tort – A Comparative Perspective (Cambridge University Press 2010). Journal Of European Tort Law, 3(1). https://dx.doi.org/10.1515/jetl-2012-0140

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