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Consumer Law Australia: Tort Of Negligence

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Question:

Discuss about the Consumer Law Australia for Tort of Negligence.

 

Answer:

Tort of Negligence

Australian Consumer law is considered as the single law that is applied equally in all the states and territories. It is the most important consumer protection law in the country. This law is considered to be very important for the fair trading practices, protecting the consumers, regulating the trade practices and to regulate certain business. The liability of the defective products also called as the product liability is shared contract, tort and statute law. Tort is considered as the breach of the contract. The product liability and combination of the tort, contract and statute law provides the protection to the consumers from the retain sellers and to the consumers from the manufacturers. All the primary goods manufacturers and producers, as well as the importers are recognized under Australian Consumer Law. The Samsung Galaxy Note7 displayed the fault in the design and failure of the manufacturing process. Under the Australian Consume Act, a very rigorous and detailed product safety law applies. This law includes the provision for the product safety and product related services[1].

According to the product safety law the protection agencies that are included are the Commonwealth, state and territory. These provide consumer protection and are responsible for applying product safety law in Australia. The company has to comply with the mandatory standards under the product safety law and supplying the goods that do not comply with the mandatory standards are considered as offence[2].  Samsung has also failed to comply with the mandatory standards of the product safety. The suppliers of the product are also outlined under the national product safety framework. If the product of the company will cause or have caused any injury or damage then according to the mandatory requirement of the product safety law requires that the product should be recalled. If any product or service is found to display a safety risk or it has been found to be non compliant with the mandatory standard, it can be immediately recalled[3].

The manufacturer and distributors of the Samsung Galaxy Note7, under the product safety law have to provide the replacement of the product. The consumers, who have received the replacement, are entitled to choose the exchange or the full refund of their purchase[4]. According to the Statutory Guarantees that Samsung provides under the Australian Consumer law states that “consumers are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage”[5]. Australian law has been derived from the English Common law. Negligence is also considered under the tort.  Law of tort has been developed under the common law. Also, according to Tortious obligations that are fixed by the law without any formal contract, Samsung was responsible for not complying with the mandatory standards to ensure the safety of the consumers. According to the section 54 under the Australian consumer law, a person supplying goods or products to the consumers have to comply with the defined guarantees under ACL. Under this section the acceptable quality of the goods means free from defects (s54c), safe (d) and durable (e). Also, according to the section 138 the manufacturer has the liability of loss and damage that the consumer if the goods have the safety defect (s138(1b). Under s138 (2), “The individual may recover, by action against the manufacturer, the amount of the loss or damage suffered by the individual.”[6] Therefore, the consumer in Australia can take significant actions against the Samsung Galaxy Note7 manufacturers

 

Rights of Consumers

The Australian Consumer Law has been established as the single national law which is related to the consumer protection and fair trading. This law imposes the statutory obligations on the manufacturers and suppliers of the goods in terms of product safety, product liability and also quality guarantees. According to The Australian Consumer Law (2012), “Part 3-5 of the ACL is based on the EC Directive on Defective Products, 1985 and mirrors the old Part VA of the TPA except that it now refers to “a person” rather than a corporation.”[7] Under the part 3 of the ACL the legislation provide the definitions or the key concepts associated with the manufacturers, consumers, goods or consumer goods. According to it a consumer is someone, who consumes the goods made by manufacturers and sold by distributors or retailers[8]. Under this part, all the explanations inform that what are the consumers and manufacturers under the law and how they are connected to each other. This part provides the rights to the consumers for acquiring goods and services.

The misleading and deceptive conduct has been prohibiting by the Australian consumer law. The remedies for such conducts include compensation, injunction to prevent such conduct. According to the part 3-5 of ACL a person has the right to apply to the court for the damages, so that their loss could be compensated. According to the part 3 can recover the amount of loss and damage and under the provision of the liability and guarantee of the safety; consumers can sue to Samsung manufacturers and distributors. Part 3-5 informs about the Liability of manufacturers for goods with safety defects[9]. Both the parts of the ACL contains an in built right of the consumers to compensation. Australian consumer law has provided the quality standards for the acceptable quality of the products. For that acceptable quality the products are required to be durable, safe, free from defects, acceptable in appearance and should also be fit for the purpose[10].

Pt 3-5 are subjected to the Part VIB of the Competition and Consumer Act 2010 that imposes the limit on the injury damages for the economic and non-economic losses. Smasung has provided the consumer guarantee, but in the case of Samsung Galaxy Note7 the guarantee of the product being safe does not comply with the standards of consumer guarantee. Therefore, they can sue and damages can be recovered against them by the consumers. However, the scope the damages are very limited, yet the person affected has the rights to sue such manufacturers and distributors[11].

Limiting the Extent

The tort of negligence and the ACL has given many rights to the consumers to claim their damages from the manufacturers and distributors. A good is considered to have the safety defect, if the safety of goods is not as expected in the general way. But, for the safety defect, the product is required to be unsafe and not just of poor quality. The goods can also be harmful, not because of the safety defect, but because of their inherent nature. The term of contract is not void under the section 64 just because it limits the liability of the person[12]. It also includes that whether the buyer knew or ought reasonably to know the existence or extent of the harm. The caps that can limit that above possible ACL liabilities could be that the defense can state that at the time of supply no defect was there (s142(a)(iii))[13]. The caps can also include that at the time of the supply of the goods by the manufacturers, the scientific and technological knowledge was not highly enable in terms of discovering the safety defect (s142(c)). If the finished good displayed the safety defect, then such defect may have arise because the design of the other goods at the time assembling and because of the act of omission of the manufacturer.

According to the s148(1),  the defence could also state that commonwealth of the liability of the goods that are defective, are mainly due to the compliance with the Common wealth Mandatory standards[14] The manufacturer or the defence can also claim that no safety defect was found in the products at the time of manufacturing or supply, which can limit the extent of the possible claims of the plaintiff against damage claims. With the support of the section 106 in Australian Commercial Law, the defence can also state that goods were not supplied under the trade and law and such goods are not required to comply with the safety standards[15]. The defence can also state that goods or the service do not comply with the safety standard if the person suffering from the loss has done the rreasonably foreseeable use (or misuse) of the consumer goods. Though, the consumer rights under the Australian consumer safety has been well defines, there is also the scope for the defense to explain their part. The manufacturer can state that refunds are only guaranteed for the customers, who have brought the product directly from the manufacturer and not from the retailer[16].

 

Bibliography

Competition and Consumer Act. (2010). Retrieved from:

https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html#_Toc476304965

Product Safety Australia. (2016). Retrieved from:

https://www.productsafety.gov.au/recall/samsung-electronics-australia-pty-ltd-samsung-galaxy-note7

Samsung recalling 51,060 phones. (2016). Retrieved from:

https://www.choice.com.au/electronics-and-technology/phones/mobile-phones/articles/samsung-galaxy-note7-recall-amid-burn-concerns

The Australian Consumer Law. (2013). A framework overview. Commonwealth of Australia.

Retrieved from: https://consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf

The Australian Consumer Law. (2012). An essential guide for product manufacturers and

suppliers. Retrieved from: www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/.../12-021abookmarked.pdf

Your Rights Under the Australian Consumer Law. (2017). Retrieved from:

https://www.samsung.com/au/australian-consumer-law/

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