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The Law of Negligence

Discuss About The Determining Duty Of Care And Apportionment.

Vorwerk & Co. KG is a German Company who is indulged in making kitchen appliances which are electrically proven and are of high –end. The appliances are made in France. In Australia the appliances are imported by imports the appliances Thermomix in Australia Pty Ltd. the appliances are sold by Thermomix in Australia Pty Ltd in Australia with the help of living persons. These persons are authorized to sell the kitchen appliances to retail and trade customers.

Thermomix in Australia Pty Ltd is found to be indulged in several tort wrings, violation of Civil Liability Act 2002 and violation of the provisions of the Australian Consumer Law. The incident come to light when around 87 incidents come to light by CHOICE when us of Thermomix appliances – 18 which resulted in physical injuries to the consumers which require treatment from doctors and nurses.


After analysis a report from https://www.choice.com.au/home-andliving/kitchen/all-in-one-kitchen-machines/articles/accc-takes-thermomix-to-federal-court160617, an attempt is made to evaluate the application of the law of negligence, Civil liability Act 2002 and the Australian Consumer Law in the present scenario.

No attempt is made to analyze the quantum of damages while evaluating the law of negligence on the part of Thermomix in Australia Pty Ltd.

The law of negligence is an actionable wrong and is a branch of tort law. The law of negligence simply states that no person must indulge in any action or omission which results in causing harm to any other person who is closely associated with him.

The law of negligence on the part of manufacturer was for the first time highlighted in the leading case of (Donoghue v Stevenson , 1932). The House of Lord, Lord Atkin, primarily submitted that every manufacturer owns a duty towards his customers mainly because he is his neighbor. (Hamilton, 2012)

Duty of care signifies that every defendant has legal responsibility in law under which he is bound to carry out is actions in such a careful manner so that no injury is caused to the plaintiff. This legal duty is forced to be carried out by the defendant only when: (Latimer, 2012)

  1. The plaintiff is his neighbor- The rule of neighbor submits that the plaintiff is positioned at such a place that the actions of the defendant impacts the plaintiff directly. There is proximate relationship amid the two are so closely associated with each other that the arts that are carried by defendant will hamper the plaintiff (Baar v Snowy Mountains Hydro-Electric Authority , 1970).
  2. The plaintiff is reasonably foreseeable – The duty is against that plaintiff whom the defendant can foresee reasonably. If the plaintiff is placed remotely and is not able to be foreseen reasonably by the defendant then there is now duty of care (Haley v London Electricity Board , 1965).

Once both these requirements are met, the defendant is under constant duty to provide protection to the plaintiff from his acts. The duty of care is imposed on every kind of defendant, whether it is manufacture, importer or supplier and is held in (Coregas Pty Limited v Penford Australia Pty Limited , 2012). (Renae Hamilton 2012)

Thermomix in Australia Pty Ltd - Breach of Duty of Care

To consider that the defendant is negligent in his actions, it is necessary that the duty of care that every defendant must comply with is not met by him causing violation of the duty of care. The duty of care is only considered to be breached when the level of care or the standard of care that is expected from the defendant fall short of what a reasonable prudent man acts in the similar situation and is held in (Wyong Shire Council v Shirt , 1980). The level of care is directly proportionate to the level of risk, that is, higher the risk higher the cared and vice versa. (Vines, 2002)

When the duty of care is violated by the defendant then it is very necessary that some kind of harm must be caused to the plaintiff. The damage so caused should not be remote and must have been caused because of the acts of the defendant.

So, when all the three elements are met, that is, duty , breach and damage, then, the defendant is negligent.

The rule of negligence is now applied to the factual situation of   Thermomix in Australia Pty Ltd.

Thermomix in Australia Pty Ltd is under duty of care as it is an imported and duty of care is imposed with the duty to provide products that does not harm its customers under (Donoghue v Stevenson , 1932)

The duty of care is against all those customers who are using his product as such customers are resemble foreseeable and are proximate with Thermomix in Australia Pty Ltd,

But, this duty of care is not met by Thermomix in Australia Pty Ltd because the product TM31 which is supplied by the company is found to be defective. It has a defect which has the capacity of injuring the customer to the extent of burning. The duty is considered not to be complying with because according to the statuary provisos whenever a defect is found to be in any product it is necessary that the same must be notifying in 48 hours. This statuary provision is not met by the company.

Because of the use of Thermomix appliances – 18 there are physical injuries that are caused to the consumers which require treatment from doctors and nurses. Thus damage is caused to people because of the use of the product and thus Thermomix in Australia Pty Ltd is found to be negligent.

Civil Liability Act 2002, New South Wales

So, it is rightful in submitting that Thermomix in Australia Pty Ltd is negligent in his acts and must compensate to the customers who had suffered injuries because of the negligence of Thermomix in Australia Pty Ltd.

The law of negligence also has the applicability under the New South Wales, Civil Liability act 2002. There are various provisions that are made part of the Civil Liability act 2002. That imposes duty of care on the manufacture which must be complying with by him in order to avoid any kind of liability under the Act. Part X of the Civil Liability act 2002 explains the meaning of duty of care on the part of the manufacture. Section 5B specifically submits that ever manufacture is owned with a duty of care which must be comply with by him against all those harms that are reasonable foreseeable and against those risks which are significant in nature. The duty of care is imposes to the level of what a reasonable thinking man acts in the like circumstances. The level of duty of care is considered to be high when the risk is high. Thus, the nature of the risk, the seriousness attached to the same etc are some of the factors that must be kept in mind to impose duty on the part of the manufacturer. It was specifically submitted that when the defendant is aware of the risk then it is his paramount duty that he must bring such danger in the notice of the plaintiff so that no injury is sustained by him.

Section 5D specifically submits that in order to hold the defendant liable under the law of negligence it is necessary that the plaintiff must have suffered injuries because of the wrongful actions of the defendant.  

Applying the provisions of the Civil Liabilities act 2002, Thermomix in Australia Pty Ltd is aware of the risk that is associated with the use of his product. Thus there is a duty that is imposed upon the company under section 58B of the Thermomix in Australia Pty Ltd that he must bring the danger to the notice of the consumers. However, no such action is undertaken by the company. Thus, there is volition of duty of care on the part of the company.

It is also found that the injury that is sustained by the consumers is because of the faulty product supplied by Thermomix in Australia Pty Ltd. Thus, the company Ltd is in coalition of section 5D

Damages Cap under the Civil Liability Act 2002

There are caps that are imposed on the personal injury damages. These caps act in mitigating the level of likely liability under the law of negligence that might be provided to the plaintiff.

The Civil Liabilities Act 2002 under section 12 has laid down that whenever damages are granted to the plaintiffs for the liability arising out of personal injuries then the court are not reluctant to limit the damages. Section 12 is applicable only when the liability that is originated is out of violation of contract, negligence or violation of statuary provisions (section11A).

Limitation of damages or capping of damages simply submits that three times the average weekly earnings of the plaintiff must be evaluated and that is the limit to which liabilities can be awarded. Any damages above the same are not to be awarded to the plaintiff. The damages that can be claimed are the loss of desires of the financial support or the loss of earning capacity of the plaintiff.

It can be thus submitted that the cap that is imposed will only benefit the people of high income group and not the low income group. The limitation of damages under the Civil Liabilities act 2002 is nothing but an advantage that is given to the defendants which portrays that no unlimited amount of damages can be given to the plaintiff in the shield of negligence on the part of the defendant.

The Australian Consumer Law is the enactment that is framed in order to protect the interest of the consumers in Australia. Every consumer has several rights that can be acquired by him under Part 3-5 of the Australian Consumer Law. These rights that the rights that arise when the consumer guarantee that are made part of Part 3-2 of the Australian Consumer Law are not comply with by the manufacture. The consumer guarantees are rigid in nature and no person is permitted to limit, mitigate or exclude the consumer guarantees by relying on any kind of exclusion clause. The exclusion clause that limits the consumer guarantees is void in nature. (Coorey, 2014)

The consumer guarantees is applicable against the manufacture and if the information regarding the manufacture cannot be found then the supplier is the rightful person to approach.

It was found that the people at superior position has tried to rely on non-disclosure agreements and denying any kind of known safety issues. Thus, the company cannot exclude any right of the consumers, thus, the agreements has no validity in law.  Further, Thermomix in Australia Pty Ltd is the imported who is selling the kitchen appliances in Australia. The main manufacturer was a German Company who is producing the products in France. Thus, in Australia, Thermomix in Australia Pty Ltd must comply with all the consumer guarantees and if the guarantees are not comply with then rights can be sought by the consumers against Part 3-5 of the Australian Consumer Law.

It is submitted that under part 3-2 of the Australian Consumer Law there are several consumer guarantees that every manufacture must comply with and if the guarantees are violated then the consumer has several rights to be apply against the manufacture under part 3-5 of Australian Consumer Law. (Paul Latimer 2012)

Section 54 of the Australian Consumer Law submits that the goods or products that are purchased by the consumer from the seller must be of a quality that is acceptable in nature. there are various factors that must be taken into consideration before considering whether the quality of the goods are acceptable or not, that is, the goods so supplied must be fit, durable, safe, finished product and acceptable in appearance. The importance of section 54 of Australian Consumer Law is highlighted in (McWilliams Wines Ltd v Liaweena (NSW) Pty Ltd , 1988).

Section 55 of the Australian Consumer Law submits that when the consumer before the purchase of the goods has made a disclosure to the seller the reason for the purchase then the goods that are supplied musts fit in the purpose of the consumer for which the goods are purchased. If the goods are not as per the purpose provided by the consumer then there  is violation of section 55 of Australian Consumer Law.

As per section 56, the goods that are sold by the seller are sold upon certain description, then, the goods actually sold must correspond with such description and is held in (Varley v Whipp, 1900).

Further, whenever the goods are sold by the seller then he must make provisions for the repair or replacement facility of the faulty product. It is a consumer guarantee which must be comply with by the manufacture.

It is submitted that the product that is purchased by the consumer from Thermomix in Australia Pty Ltd is not of acceptable quality and thus there is violation of section 56 of the Australian Consumer Law. The product sold was not fit fir the purpose supplied, not safe or datable. When the good was used it resulted in burning injuries. Thus, the provisions are vaulted.

Further, Thermomix in Australia Pty Ltd submitted that they do not have any policy regarding replacements, refunds or any kind of remedy which is nothing but a clear violation of the provisions of the Australian Consumer Law.

When any manufacture does not comply with his consumer guarantees, then there are several rights that can be acquired by the consumer against the manufacture.

The consumer when faces any kind of injuries that are of personal nature then he has the right to seek compensation OR if death is incurred because of the use of the defective product, then, the rightful successors of the deceased can claim compensation OR if any loss is caused to the consumer then he can sue the supplier to claim the liability. (Latimer, 2012)

But, every manufacturer also has some safeguard provision which he can avail to protect his interest.  That includes that the when the goods were supplied then the goods were defect free, it was at the later stage that the goods became faulty. Also, that there is a need for the application  of standard and it is because of such standard that the defect is present in the goods. Further, that when the product was produced the technology was not much advances so that the defect can be captured. (Latimer, 2012)

So, there are various consumer guarantees that are not comply with by the company and because of which ACCC is taking legal proceedings against the company. Various remedies re sought by ACCC that is penalties, declarations, costs, injunction, etc.

The court has decided the case in favor of ACCC and around $4.6 million is imposed to the company in April 2018 for misleading customers.

References

Baar v Snowy Mountains Hydro-Electric Authority (1970).

Coorey, A. (2014). Australian Consumer Law. LexisNexis Butterworths,.

Coregas Pty Limited v Penford Australia Pty Limited (2012).

Donoghue v Stevenson (1932).

Haley v London Electricity Board (1965).

Hamilton, R. (2012). Australia: Determining duty of care and apportionment of liability between employer and supplier. Retrieved May 10, 2018, from https://www.mondaq.com/australia/x/206026/Health+Safety/Determining+duty+of+care+and+apportionment+of+liability+b

Latimer, P. (2012). Australian Business Law .

McWilliams Wines Ltd v Liaweena (NSW) Pty Ltd (1988).

Varley v Whipp (1900).

Vines, P. (2002). "The Needle in the Haystack: Principle in the Duty of Care in Negligence. UNSWLawJl 25.

Wyong Shire Council v Shirt (1980).

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