Law related to Negligence
Discuss about the Establish Reasonable Damages for Personal Injury.
In this answer we discuss the liability in relation to tort of negligence that any manufacturer or distributor of the Thermomix appliance might have to those users who suffer injury or loss because of the Thermomix products.
There are many situations such as one person owns duty of care towards another person, negligence is doing, fail to do something that on the part of reasonable person would do or would not do and these actions of person cause damage, injury or loss to another person. Tort of negligence determines the “duty of care”. In other words, negligence law stated that if any person suffers injury which cause because of the negligence of other person than that person to whom injury is caused must get compensated for the loss or damage (Victoria state government, 2015).
Section 43 of Wrongs Act 1958 states that negligence means a person fails to exercise due care towards another person. Damages include any kind of monetary compensation, and harm means injury or death caused to another person, damages to property, and economic loss (Wrongs Act 1958, n.d.).
When one person sues another person in negligence then at that time that person is seeking for damages from another person and also they wanted to be in the same position as they were if negligence would not occurred. Negligence has occurred or not is determine from following factors:
- Whether defendant owe duty of care towards plaintiff or not?
- Whether defendant breach the duty of care or not?
- Whether because of negligence of defendant, plaintiff suffers any injury or damage?
- Whether injury or damage suffered because of the breach of duty of care by defendant?
If all the above factors are satisfied then plaintiff is able to establish that defendant was negligent. Section 16 of the Wrongs Act 1958 states that if death or any other injury of the person is caused by a wrongful act, negligence or default of any other person who owe duty of care, then that another person who owes duty of care is liable to compensate that other person (Wrongs Act 1958, n.d.).
Section 48 of Wrongs Act 1958 states that a person is not negligent for any action unless:
- The risk was foreseeable.
- The risk involved was not insignificant.
- Defendant takes all those precautions to avoid the risk which was taken by any reasonable person.
Section further stated that for determining whether person takes reasonable precaution or not court considers the following matters:
- Probability of harm would occur if care was not taken.
- Seriousness of the harm caused by the action of defendant.
- Social utilization of the activity which caused harm, and burden of taking the precaution to avoid risk (Wrongs Act 1958, n.d.).
It is the duty of manufacturer to ensure that product or services supplied by him does not affect the health and safety of the people who are using the products and services, and products and services must be tested to make sure that these products and services are not harmful for the people who are using it. Manufacturer and distributor must provide information to its client related to result of the test conducted by manufacturer, purpose for which product is designed, and conditions that are necessary to convey to ensure that services and products safely used (Work Safe, n.d.).
Liability of Manufacturer and Distributor
A person who has suffered harm caused by the negligent act of another person can file claim of negligence in the relevant Victorian court. In Australia, some amendments of the Trade Practices Act 1974 impose direct liability on the manufacturers towards consumers for compensate the loss suffered by consumers. In Australia, there is no unanimous agreement which impose liability related to products on manufacturers. Wholesalers, distributors and retailers are liable for the product which causes personal injury to any person, damage to property and economic loss (Ahmed, n.d.). We can understand his with the help of case law that is Donoghue v Stevenson. This case was also known as ‘snail in the bottle case’. The judgment of this case established various legal principles:
Negligence: In this case, House of Lords stated that negligence is tort, and plaintiff has right to take civil action against the defendant, if any negligent action of defendant cause injury or loss to the plaintiff. Previously plaintiff needs to prove that contractual arrangement for negligence was established between plaintiff and defendant.
Duty of Care: the case held that manufacturer owe duty of care for their products towards end customers who use their products, and according to the Lord Atkin’s ratio decendi a manufacturer of the product owes duty of care towards ultimate consumers because product reach to the consumer in the same form as manufacturer left it (Hughes, n.d.) .
In Grant v Australian Knitting Mills (1936), Court held that manufacture is liable towards the plaintiff for the defects in the product that cause injury to the plaintiff. However, manufacturer of the product is an insurer against the product, and if person suffers injury then manufacturer is liable (Blay, n.d.).
Therefore, after considering the above rules and regulations, the position of Thermomix appliance Australian users whose burn injuries were summarized in the CHOICE Mass Incident Report is clear. In these cases manufacturer of Thermomix appliance that is Vorwerk & Co. KG and Thermomix in Australia Pty Ltd (‘TIA’) owes duty of care towards their customers.
Legal principles stated in Donoghue v Stevenson states that manufacturer of product owes duty of care towards its ultimate customers. However, Thermomix appliance Australian users are the ultimate consumer of Vorwerk & Co. KG which states that Vorwerk & Co. KG is liable towards their consumers. Many burn injuries cause to the Australian users of Thermomix appliance and these users have right to file suit against the manufacturer in relevant court. Manufacturer of appliances is liable to compensate the users.
Caps on Personal Injury
At last we conclude that, positions of Australian users are clear. Plaintiffs have right to file Negligent claim against the manufacturer and distributor. Manufacturer and distributor of products are liable towards those customers or other people who suffer physical or mental injury because of the Thermomix products because they own duty of care towards their consumers and other people.
In this answer we state the caps and limits applicable on damages provided by court for personal injuries in Australia, and this answer is supported by the relevant legislations and statutes. Brief note on role of caps limited the extent of liability is also explained.
The parliament of Victoria make number of changes in the legislation of personal injury by passing Wrongs Amendment Act 2015 (Vic). These changes are based on the recommendations made by the VCEC that is Victorian Competition and Efficiency Commission. The wrong Act imposes many limits on access to compensation for economic and non economic loss arising from personal injury and death in Victoria (Victoria State Government, 2015).
Threshold for economic and non economic loss: in case of non-economic loss there is 30% whole person impairment and Court also determine whether person has serious injury as per the narrative test.
In case of economic loss there is 30% whole person impairment and Court also determine whether person has serious injury as per the narrative test, and loss of at least 40% of permanent earning capacity.
Limit on damages: in case of economic loss the limit on damages is set up to $1,264,920, and court does not award damages if they are less than $51990.
In case of non-economic loss the limit on damages is set up to $527610, and court does not award damages if they are less than $51990 (Hill, n.d.).
Following are the key changes in the legislation of personal injury:
- Section 28G and 28H impose limitation on the maximum amount of damages that are awarded to the claimant in case of loss that is non-economic. The act makes amendment in section 28G and increase the present amount in the section that is $577,050. The report of VCEC also stated that this amount was also the limit on the damages and pain suffered in Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
- The amending Act also make amendment in the Section 28ID of the Act, in which Act provided a new statutory entitlement to damages for the loss of claimant’s capacity so that gratuitous care can be provided to the dependant’s of claimant. However definition of dependant was also amended, and now includes any unborn child at that time when liability arises.
We can understand this with the help of case law that is CSR v Eddy (2005) 226 CLR 1.
In this case, High Court stated that if plaintiff is prevented by an injury from giving gratuitous services to any other person than damages awarded to plaintiff does not include an amount which is calculated by giving reference to the commercial value of the services. The damages related to capacity of claimant to care for another person shall be given as per general damages. The amending Act overrules this concept and provides classification on such type of damages. Act imposes restriction on the type of dependant which is covered under this section. Now, it is necessary to satisfy the Court that claimant provide care before the liability arises to the dependant and after liability arises dependants are not able to provide care for themselves because of Age, physical or mental incapacity (Rissman, Potter & Raniolo, 2015; Thomas, 2015).
Key Changes in Legislation
There are many cases which are stated in the Choice that many users get physical injury from the appliances, and there are some other peoples also who provide care to their dependants. The amending act imposes number of limitations on these plaintiffs and now damages are awarded to them as per the new amending rules and limits.
The above mention limits and caps on economic and non economic damages also affect the Australian users of Thermomix appliances who get physical injuries from the defect in the appliances. At last we conclude that these limits on damages of personal injury also affect the users of Thermomix appliances who suffer personal injury, and those users who do not meet the threshold test are not able to seek damages from Court.
In this answer we discuss the rights of Australian users under part 3-5 of Australian Consumer Law (ACL) against the manufacturer or distributor of the Thermomix appliance, and also the defenses available to manufacturer and distributor have.
ACL that is Australian Consumer Law provides protection to the consumers in the supply of goods and services. ACL stated that statutory consumer guarantee and other injuries cause because of defective product are fall under the category of strict liability. There is no need to prove the fault of manufacturer by claimant in case of breach of consumer guarantee, instead consumer have to established that goods are not fit for the purpose they are manufactured and quality of goods are not acceptable. In case of defective goods claimant need to prove that goods have a safety defect. Common law regulates the contracts and other provisions of ACL and it is necessary that claimant must established following things:
- Claimant suffered loss or damage.
- Conduct of manufacturer was contravening the provisions of ACL.
- Loss or damage caused to the plaintiff was caused because of the defendants conduct (ICLG, 2015).
Manufacturer is liable for the ultimate consumer, and this can be understood with the help of this case that is Leeks v FXC Corporation (2002).
In this case, a company manufactured reserve parachute in USA. The principle place of the business is USA. MR. Lee purchased parachute in Australia from an importer, and he used the product two times. Later there was some malfunction in the parachute which causes injury to plaintiff.
Mr. Lee file suit against the manufacturer of the Parachute on various grounds including unacceptable quality of parachute and unsuitable goods under provisions of ACL. He also file claimed against the importer as deemed manufacturer. Court held that Mr. Lee has right to sue both manufacturer and deemed manufacturer (Ryding, 2014).
Consumer has right to file compensation claims for personal injury and damage to property because of the defective goods, and it also covered those claims which are made by person who purchased the goods and also those persons who get injury from the goods purchased by other person. Consumer can take legal action for seeking compensation in the same way as any other legal action under ACL.
Chapter 3 of ACL prohibits some particular conduct and regulates some specific practices related to transactions of consumer. The provisions of this chapter support the general prohibitions in chapter 2 of the ACL.
Chapter 4 of ACL states offences relating to some particular matters which are covered by chapter 3 of ACL. The ACL provides that some specific breaches of law are serious in nature up to that extent that they are treated as criminal offences to which provisions of criminal law are applied (ACL, n.d.).
Chapter 5 states enforcement and remedies which are available to consumers. ACL has national enforcement powers which are used by the regulators of consumer law. It also includes civil penalties and remedies in case of breach of provisions of ACL. It must be noted that it is not necessary to take all the breaches to the court. For example, ACL give powers to consumers for seeking refund of money, replacement of goods, and repairs of goods in case when supplier fails to satisfy its obligations under consumer guarantees.
Therefore in this case, all the users of Australia who suffer personal injury because of the negligent act of Vorwerk & Co. KG can file suit under ACL also for recovering the compensation. ACL also provide protection to the consumers against the negligent act of manufacturer.
As per the judgment of the court in case Leeks v FXC Corporation (2002), person who suffered injury from the defective appliances of Vorwerk & Co. KG has right to sue the manufacturer that is Vorwerk & Co. KG and also importer of the product considered as deemed manufacturer that is TIA. Both the manufacturer and deemed manufacturer is liable towards the people who suffered personal injury because of the negligent act of manufacturer.
At last we conclude that part 3-5 of ACL provides number of right to the Thermomix appliance users. These parts of ACL consider the negligence as criminal offence and provide remedies for same.
ACL. Legislation. Retrieved on 4th January 2017 from: https://consumerlaw.gov.au/the-australian-consumer-law/legislation/.
Ahmed, U.S. Products Liability in Australia. Retrieved on 4th January 2017 from: https://www.austlii.edu.au/au/journals/UTasLawRw/1979/5.pdf.
Blay, S. Product Liability. Retrieved on 4th January 2017 from: https://www.findlaw.com.au/articles/225/product-liability.aspx.
Claytonutz, (2014). Product Liability. Retrieved on 4th January 2017 from: https://www.claytonutz.com/ArticleDocuments/501/16_ProductLiability.pdf.aspx?Embed=Y.
Hill. How to establish reasonable damages for personal injury: common law (fault-based) damages (Australia). Retrieved on 4th January 2017 from: https://www.hiil.org/bestpractices/How%20to%20establish%20reasonable%20damages%20for%20personal%20injury:%20common%20law%20(fault-based)%20damages%20(Australia).
Hughes, A. Liability. Retrieved on 4th January 2017 from: https://www.corrs.com.au/assets/thinking/downloads/Product-Liability-First-edition-2014.pdf.
ICLG, (2015). Prroduct liability 2015. Retrieved on 4th January 2017 from: https://www.claytonutz.com/articledocuments/178/ICLG-Product-Liability-Australia-2015.pdf.aspx?Embed=Y.
Rissman, B. Potter, A. & Raniolo, R. (2015). Victorian parliament makes changes to the Wrongs Act. Retrieved on 4th January 2017 from: https://www.cbp.com.au/publications/2015/november/victorian-parliament-makes-changes-to-the-wrongs-a.
Ryding, A. (2014). Supplier beware: tips and traps for Australian suppliers of goods manufactured by others. Retrieved on 4th January 2017 from: https://www.cbp.com.au/publications/2014/march/supplier-beware-tips-and-traps-for-australian-sup.
Thomas, K. (2015). Significant changes to personal injuries legislation in Victoria. Retrieved on 4th January 2017 from: https://www.sparke.com.au/insights/significant-changes-to-personal-injuries-legislation-in-victoria/.
Victoria State Government, (2015). Compensation for personal injury. Retrieved on 4th January 2017 from: https://www.justice.vic.gov.au/home/justice+system/compensation+for+personal+injury.
Victoria state government. (2015). School Policy & Advisory Guide. Retrieved on 4th January 2017 from: https://www.education.vic.gov.au/school/principals/spag/safety/Pages/dutyofcare.aspx.
Work safe. Designers, manufacturers and suppliers. Retrieved on 4th January 2017 from: https://www.worksafe.vic.gov.au/safety-and-prevention/your-industry/manufacturing/your-legal-duties/designers,-manufacturers-and-suppliers.
Wrongs Act 1958-sect 16.
Wrongs Act 1958-sect 43.
Wrongs Act 1958-sect 48.
Donoghue v Stevenson.
Leeks v FXC Corporation (2002).
CSR v Eddy (2005) 226 CLR 1.
Grant v Australian Knitting Mills (1936).
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