Get Instant Help From 5000+ Experts For
question

Writing: Get your essay and assignment written from scratch by PhD expert

Rewriting: Paraphrase or rewrite your friend's essay with similar meaning at reduced cost

Editing:Proofread your work by experts and improve grade at Lowest cost

And Improve Your Grades
myassignmenthelp.com
loader
Phone no. Missing!

Enter phone no. to receive critical updates and urgent messages !

Attach file

Error goes here

Files Missing!

Please upload all relevant files for quick & complete assistance.

Guaranteed Higher Grade!
Free Quote
wave

Introduction to the legal liabilities for faulty Thermomix Appliance products

Discuss about the Commercial Law for Thermomix Appliance.

1. In case of the provided scenario of Thermomix Appliance it can be noticed that due to the faulty products produced by the company and in spite of informing the company the users or the consumers had to face number of injuries. Some of the mentionable injuries include case 16, January 2015, where the lid of the product blew off that resulted in causing burns to neck, face, arm, and chest. In this mentioned case TM5 model caused the injury. Similarly for case 68, the machine vibrated, became disordered which caused the led to blow off, the consequence of which was explosion of the soup the user was preparing and received second degree burns on the face. On informing the company there was not further response. There are other, number of accidents that had occurred due to the faulty product of Thermomix Appliance. This makes the company tortuously liable to the users for their injuries and suffering as the basic ground of liability in tort of negligence (Austlii, 2002).

It needs to be mentioned here that, a legal wrong a legal wrong committed on the part of an entity or on the part of an individual against another entity or a person, for which an award of damages is the remedy can be stated as tort. In this context, it needs to be highlighted that on the part of plaintiff it is required to prove that there was negligence on the part of the defendant, which caused the injuries. This makes it essential for the plaintiff to prove the presence of all the elements that caused the damages. These elements include -duty, breach of duty, cause in fact, proximate cause and damages.  In the provided scenario, it can be noticed that on the part of Thermomix Appliance, it owed to the users as duty of care at law of providing safe and effective products to the users. The company breached the duty by failing to meet care standard as required by the law by providing the products that are not faulty to the users. Most importantly, due to the breach of duty on the part of the organization the users had to suffer major damages like second degree burns in case 52, face, arm and chest burns in case 62 (Choice, 2016). This fact clearly establishes the fact that Thermomix Appliance is tortuously liable to the users. It is mentionable here that under Civil Liability Act 2003 Chapter 2 as well the organization is liable to the injured users. Under Chapter 3 of the act the users can claim damages for the pain and suffering (legislation, 2016).

Tortuous liability, duty of care, and breach of duty

As already mentioned, on the basis of the above provided facts of the incident that the company manufacturer is tortuously liable to the users, makes them entitled for remedies for the pecuniary and non- pecuniary loss which includes monetary compensation. On the part of the courts, along with the monetary compensation it can grant injunctions in order to restrain or restrict some attempted breaches or breaches in association to the consumer protections provisions. It is essential to discuss here that, for the pain and suffering the injured users can claim for compensatory damages. For the medical expenses and expenses associated with the damage of property or treatment of injury also the users can make claim for the damages and expenses. The users (i.e. the plaintiff) are further entitled for compensation for any income loss due to damage or injury. The expenses that may occur in the future for the treatment of the injury or repairing the damaged property can also be claimed by them.

Under Competition and Consumer Act 2010 Schedule 2 also the company is liable to the users. Schedule 2 Part 3-3 of the act deals with safety of product related services and consumer goods. Part 4-3, Schedule 2 of the act state the offences associated with non- abidance by the safety of product related services and consumer goods and the remedies that the aggrieved party is entitled to (Austlii, 2012). Section 194 of the act states that, supplying consumer goods that fail in complying with the safety standards, is an offence. In the provided case as well, it can be noticed that noticed that the products provided to the users are faulty, which resulted in the occurrence of the injuries. This resulted in the breaching of Competition and Consumer Act 2010. The remedies that are users are entitled to under the act are $1,100,000 as the compensation amount.

2. The deadline in order to file a lawsuit can be referred as Statute of Limitations. In the context of filing lawsuits, most of the lawsuits require it to be filed within a specific amount of time. In cases where statute of limitations runs out the validity of the legal claim expires as well (Courts, 2010). The type of legal claim determines the time period in which a lawsuit can be filed. Hence it can be stated that, the law that fixes the time limit on the basis of a certain starting point, in the period of which legal action in order to determine liability is permissible can be termed as statute of limitations (Boeschen, 2012). Territory, national and state law, legalizes liability in Australia.   

The limitation period that are provided, as already mentioned depends on issues of the cases. For instance in case of product liability, which is the main issue in the provided case, according to Fair trading Act 2003, 6 years following the date of cause of action when it builds up is the limitation period. Similarly, in case of misleading and deceptive conduct, According to Australian Competition and Consumer Act 2010, 3 years from the date of discoverability of death or injury is the limitation period or 12 years long-stop period for the death or injury is also another part of limitations period under the act. It is mentionable here that the limitation period for the claims varies from region to region. As instance in case of personal injuries, the limitation period under Limitation Act 1969 is 3 years from the discoverability date or 12 years from the omission or act, whichever first expires in case of New South Wales. While in case of Queensland, under Limitations of Action Act 1974 the limitation period is 3 years. Under Limitations Act 2005 the limitations period is 3 years from the date when an individual becomes aware of the fact that injury has occurred or sustained the inflicted personal injury or the first symptom of or manifestation of the injury for Western Australia (Austlii, 2005). It also requires to be mentioned here that in certain cases there exists provision for extension of the limitation period. As an instance in case of Victoria, for personal injury, under Limitations Actions Act 1958 any period is, reasonable and justified.           

Liability under Civil Liability Act 2003 and Competition and Consumer Act 2010

Hence on the basis of the above discussion, it can be stated that the existence of the statute of limitations primarily exists in order to protect the defendants. An in depth analysis of this aspect reflects the fact that in order to determine rational diligence on the part of the plaintiff while approaching and incorporating on the part of the plaintiff valid cause of the action is one of the prime reason for the existence of statute of limitations. Other than that, in order to deal with the aspect of lost evidence on the part of the defendant in order to disprove a claim that is stale statute of limitations is also required. It also highlights upon the aspect of long-dormant claim that results in more cruelty rather than justice also makes the presence of statute of limitations necessary.  There may occur cases when the plaintiff misuses the providing of claims, in order to prevent it also plays crucial role (Vargo, 2014). There may, arise cases where the defendant was not aware of the occurrence of the incidents of injuries. In such cases as well the statute of limitations acts as a safeguard for the defendant.

3. The statutory rules in order to deal with the claims of liability associated with damages or loss, which includes economic loss as well, that is the consequence of the supplied goods containing a safety defect is dealt with in Chapter 3, Part 3-5 of the Australian Consumer Law. In situation when an individual suffer injury or loss due to the supply of defective goods may take action against the manufacturer. In the provided case of Thermomix Appliance, it can be noticed that due to supplying, on the part of the manufacturer, products that do not comply with the safety standard, thus defective in nature resulted in severe injuries as it can be seen in case 73 of the scenario where the machine exploded hot liquid and resulted in burns to arms, stomach and chest of the user. It clearly highlights upon the fault on the part of the provided product and its defective nature which resulted in the injury. This is applicable for the other cases as well; hence making the users entitled to bring a liability action against a manufacturer under Sections 138-141 of the act.  The grounds under which the users can be bring a liability action against a manufacturer under sections 138-141 of the act are: due to the defective goods the users had to suffer damage or loss as a consequence of sustained injuries (Alrc, 2013). Other than that, in cases where due to another good being damaged or destroyed as a result of the defective goods which resulted in the suffering of damage or loss on the part of user also can be a basis for bringing a liability action against a manufacturer under sections 138-141 of the act. In addition to it, if due to a building, land or fixture getting damaged or destroyed because of goods defective in nature that resulted in damage or loss of individual, under Chapter 3, Part 3-5 of the Australian Consumer Law, the users have a basis of bringing a liability action against the manufacturer (Sec 138-141 of ACL). Hence on the basis of the above mentioned grounds of the sections 138-141of Australian Consumer Law the users can sue the manufacturer in the court.

However, the manufacturer can have defenses under sections 142 & 148 of ACL. The defenses that a manufacturer can have under 142 & 148 of ACL are: at the time when the goods were supplied the particular safety defects that occurred were absent. Further if the defendant can establish that only because of complying with a mandatory standard the defect occurred then also it will act as a strong defense for the manufacturer, which he can claim under sections 142 & 148 of ACL (publications, 2016). Further, if the manufacturer can prove under the mentioned sections, that the manufacturer was unable to detect the defect due to the lack of capacity of the state of technological and scientific knowledge, it will also act as effective defenses for the manufacturer. Another mentionable defense for the manufacturer under the mentioned sections are occurrence of the defect because the product was part of another good and it was due to the packaging or design of that other good that resulted in the defect.   Hence on the basis of the above mentioned defenses as mentioned under Sections 142 & 148 of the act if the manufacturer i.e. Thermomix Appliance can establish that the incidents associated with cases like shooting out of the measuring cup as seen in case 51, malfunctioning of the lid in case 60 or explosion of the machine as in case 73 were not associated with the fault of the manufacturer that results in the faulty product and associated injuries (Choice, 2016). Instead, by stating that at the time of supply of the good the safety defect was not present or due to abiding by mandatory standard the defect occurred or the technological knowledge did not empower the manufacturer to detect the defect or as the product was a part of another good and it as the designing or packaging the manufacturer can defend himself/herself under sections 142 and 148 of ACL (Claytonutz, 2012).  

References

Alrc.gov.au. (2013). Damages | ALRC: Remedies and Costs. [online] Available at: https://www.alrc.gov.au/publications/12-remedies-and-costs/damages [Accessed 16 Sep. 2016].

Alrc.gov.au. (2014). The right to sue in tort | ALRC. [online] Available at: https://www.alrc.gov.au/publications/right-sue-tort [Accessed 16 Sep. 2016].

Austlii.edu.au. (2002). Public Tort Liability: An Alternative to Tort Liability and No-fault Compensation. [online] Available at: https://www.austlii.edu.au/au/journals/MurUEJL/2002/45.html [Accessed 16 Sep. 2016].

Austlii.edu.au. (2005). LIMITATION ACT 2005. [online] Available at: https://www.austlii.edu.au/au/legis/wa/consol_act/la2005133/ [Accessed 16 Sep. 2016].

Austlii.edu.au. (2012). COMPETITION AND CONSUMER ACT 2010 - SCHEDULE 2The Australian Consumer Law. [online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html [Accessed 16 Sep. 2016].

Boeschen, C. (2012). Damage Caps and Other Limits on Personal Injury Compensation - AllLaw.com. [online] AllLaw. Available at: https://www.alllaw.com/articles/nolo/personal-injury/damage-caps-limits-compensation.html# [Accessed 16 Sep. 2016].

Choice. (2016). Consumer advocacy - CHOICE: MASS INCIDENT REPORT TO THE ACCC Consumer report. [online] Available at: https://www.choice.com.au/campaigns [Accessed 16 Sep. 2016].

Claytonutz. (2012). The Australian Consumer Law An essential guide for product manufacturers and suppliers November 2012. [online] Available at: https://www.claytonutz.com/ArticleDocuments/178/Clayton-Utz-The-Australian-Consumer-Law-An-Essential-Guide-For-Product-Manufacturers-And-Suppliers-2012.pdf.aspx?Embed=Y [Accessed 16 Sep. 2016].

Claytonutz. (2016). PRODUCT LIABI. [online] Available at: https://www.claytonutz.com/ArticleDocuments/501/16_ProductLiability.pdf.aspx?Embed=Y [Accessed 16 Sep. 2016].

Courts.ca.gov. (2010). Statute of Limitations. [online] Available at: https://www.courts.ca.gov/9618.htm [Accessed 16 Sep. 2016].

legal.thomsonreuters. (2010). Product Liability. [online] Available at: https://legal.thomsonreuters.com.au/product/AU/files/720502336/chapter_23.pdf [Accessed 16 Sep. 2016].

legislation.qld.gov.au. (2016). Civil Liability Act 2003. [online] Available at: https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CivilLiabA03.pdf [Accessed 16 Sep. 2016].

Out-law. (2011). Product liability for negligence. [online] Available at: https://www.out-law.com/topics/commercial/supply-of-goods-and-services/product-liability-for-negligence/ [Accessed 16 Sep. 2016].

Out-law. (2011). Product liability under the Consumer Protection Act. [online] Available at: https://www.out-law.com/topics/commercial/supply-of-goods-and-services/product-liability-under-the-consumer-protection-act/ [Accessed 16 Sep. 2016].

productsafety.gov.au. (2013). Product Safety Australia. [online] Available at: https://www.productsafety.gov.au/contact-us [Accessed 16 Sep. 2016].

publications.qld.gov.au. (2016). The Australian Consumer Law A guide to provisions. [online] Available at: https://publications.qld.gov.au/dataset/1b96f0f9-1d84-44b4-9448-7d871dbd3b9d/resource/a9a1cc75-3b45-44fb-a08d-33d1e6ac7c10/download/aclguidetoprovisions.pdf [Accessed 16 Sep. 2016].

Vargo, T. (2014). Statute Of Limitations (Statute-Barred Debts) In Australia | InfoAviator. [online] Infoaviator. Available at: https://infoaviator.org/finance/credit/bad-credit-in-australia/statute-of-limitations-au/2014/11/23/statute-of-limitations-statute-barred-debts-in-australia/ [Accessed 16 Sep. 2016].

WA, L. (2015). Personal injury. [online] Legalaid.wa.gov.au. Available at: https://www.legalaid.wa.gov.au/INFORMATIONABOUTTHELAW/BIRTHLIFEANDDEATH/PERSONALINJURY/Pages/PersonalInjuryGeneralInformation.aspx [Accessed 16 Sep. 2016].

Cite This Work

To export a reference to this article please select a referencing stye below:

My Assignment Help. (2018). Commercial Law For Thermomix Appliance. Retrieved from https://myassignmenthelp.com/free-samples/commercial-law-thermomix-appliance.

"Commercial Law For Thermomix Appliance." My Assignment Help, 2018, https://myassignmenthelp.com/free-samples/commercial-law-thermomix-appliance.

My Assignment Help (2018) Commercial Law For Thermomix Appliance [Online]. Available from: https://myassignmenthelp.com/free-samples/commercial-law-thermomix-appliance
[Accessed 23 February 2024].

My Assignment Help. 'Commercial Law For Thermomix Appliance' (My Assignment Help, 2018) <https://myassignmenthelp.com/free-samples/commercial-law-thermomix-appliance> accessed 23 February 2024.

My Assignment Help. Commercial Law For Thermomix Appliance [Internet]. My Assignment Help. 2018 [cited 23 February 2024]. Available from: https://myassignmenthelp.com/free-samples/commercial-law-thermomix-appliance.

Get instant help from 5000+ experts for
question

Writing: Get your essay and assignment written from scratch by PhD expert

Rewriting: Paraphrase or rewrite your friend's essay with similar meaning at reduced cost

Editing: Proofread your work by experts and improve grade at Lowest cost

loader
250 words
Phone no. Missing!

Enter phone no. to receive critical updates and urgent messages !

Attach file

Error goes here

Files Missing!

Please upload all relevant files for quick & complete assistance.

Other Similar Samples

support
Whatsapp
callback
sales
sales chat
Whatsapp
callback
sales chat
close