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Duty of care

Describe about the Product Liability for Manufacturing of Product.

Product liability entails a claimant bringing a claim against a manufacturer for a defect in manufacturing or design of as product. Such a claim is derived from the tort of negligence. The overarching rule entrenched by the law of negligence is that one should reasonably foresee acts or omissions that are like to cause harm to a neighbor (Donoghue v. Stevenson,1932).  Ideally, Lording Artkin in the foregoing case defines a neighbor as persons who are likely to be affected by ones act or omissions and should therefore be put in their contemplation.

With regards to the thermomis users’ case, the provisions supplied by common law and statute play an anomalous role in protecting consumers. It is of interest to note that for a negligence claim to succeed there are three essential elements that must be unassailably proved to the court for the action to succeed (Grant v Australian Knitting Mills, 1936).  The claimant must establish that a duty of care exited which was breached by the defendant. Suffice to say, he must also show that there was damage or injury suffered as a result of the breach of duty.

Before the onset of the application of the neighbor principle by Lord Artkin the claimant was put to ask to show the court that the manufacturer of a product, negligently and recklessly failed to disclose a defect in the product that eventually caused harm (Langridge v Levy, 1837). This formed the basis of the negligent action; however, this requirement has a superficial appearance for limiting the scope of the duty of care. However, not to worry, the neighbor principled has overruled the above assertions (Heaven v Pender, 1883).

Firstly and most importantly the claimant who in this case will be the thermomix users must establish that the manufacturing company owed them a duty of care. For a duty of care to be so established and to show the court that the duty of care actually existed, a proper test has to be conducted. The litmus for determining the duty of care has since been sufficiently settled in Caparo Industries v Dickman (1990) where the court firmly stated that for duty of care to exist a three stage test must be met.

The harm or injury that visited the claimant as a result of the act or omissions of the defendant must be one that is on the face of it reasonably foreseeable (Kent v Griffiths, 2000) . Unforeseeable acts do not establish a duty of care. To make this protestation solid, it is a statutory requirement that for the defendant to show that the acts or omissions were not foreseeable they must prove that they exercised all reasonable care and skill to ensure that the products were safe for use (Civil Liability Act 2002 NSW s 5O and 5P).

Breach of duty / causation

A relationship of proximity must exist between the claimant and the defendant for duty of care to be deemed to exist (Home Office v Dorset Yacht Club, 1970). This relationship is a legal relationship that bestows upon the defendant a duty of care. The thermomix users must thus show that such a relationship existed. Actually, it can be inferred that by the fact that the users were clients of the manufacturing company a legal relationship and one of proximity existed between them and thus the manufacturing company owed them a duty of care. In closing the requirements for the duty of care, it has been stated that the court will look at all facets of the case before it considers whether it is just and reasonable to impose a duty on the manufactures (Capital v Hampshire County Council, 1997).

It is indispensible that the claimant proves that as a result of the breach the duty the defendant suffered harm. The court must buy the proclamation by the claimant that the harm suffered was a result of the negligent act or omissions of the defendant (Civil Liability Act 2002 WA pt. 1A div 3 s 5c). Over and above, it is now a settled position that section 5c of the civil liability act 2002 borrows the idea inherent in it from the common law test, the ‘But for Test’ (Adeels Palace Pty Ltd v Mubarak & Bou Najem, 2009). The aforementioned test was correctly applied in Barnett v Chelsea & Kensington Hospital (1968) where the court stated that if the defendant shows that the harm would have occur but for the negligent omissions then a causal link will not be established between the harm and act of the defendant.

To sum it up a general test in determining whether there the defendant was in breach of the duty of care and consequently ,whether the breach led to causing harm and injury to the defendant, the ‘Bolam’ test will applied. The court will judge from what an ordinary skilled person in the same line of work would have done to prevent any harm (Bolam v Friern Hospital Management Committee, 1957). Ideally, the manufacturers of the thermomix will be to test to determine whether they had done all what was reasonable and what an ordinary man in the same line of work would have done to avoid the harm that visited the harm that visited the thermomix users.

Defenses Available

The defendant can buy the argument that the claimant volunteered to the act thereby stating the maxim volentis non fit injuria. It however, remains a fallacy that such a possible defense can sufficiently persuade the court. It is insensible that any reasonable and normal person will volunteer to harm themselves without a just cause. This argument therefore would most likely be defeated as soon as it arrives to the attention of the judges.

The defense of contributory negligence is advisably, a strong defense that the thermomix manufactures can plead in this case. The defendants will thus have to admit liability of the harm suffered by the defendant but they can plead that the harm was also contributed by the claimant. It is a very interesting argument as it the thermomix manufactures can persuade the court that the harm was contributed by the claimant’s negligent omissions in not abiding by the safety precautions of the appliances. Significantly, the thermomix users are advised that the principles that are applied in determining liability in negligence will also be applied in determining liability in contributory negligence defense. (Civil Liability Act 2002 (WA) s 5k)

2. An award of compensatory damages is a common law remedy that is found on the tort law principle that where a claimant successfully shows that he or she suffered harm as a result of the actions of the defendant, they should be put back in the same position they were as if the harm had not occurred. Interestingly, a trend has cropped up in Australia and other jurisdictions where a cap on the damage is placed. This has been an emotive issue that has aroused the attention of the legal fraternity. It is instructive to note that the cap or limit has only been implemented on damages for non-economic loss. Previously a limit on damages for non economic loss was only placed on defamation actions (Defamation Act 2005 (NSW) s 35).

The provisions on limitation of damages have now become notorious and conspicuous in Australian Law. It is now a settled law that for civil liability actions damages for personal injury claims have a limit reward of $551500 (Civil Liability (Non-Economic Loss) Amendment Order 2013). This limit is a revision of an earlier reward of $350000 (Civil Liability Act 2002 (NSW) s 16). Damages for non-economic loss include pain and suffering which occasionally poise a quandary to the court in determining the amount of damages to be paid in monetary terms (Office of the Australian Information Commissioner, Submission 66).

Compensation Limitations

An argument pursuant to the emerging of the limits on damages has emerged and it asserts that these limit have presented a gambling opportunity for the claimants to decide which of an action to pick depending on where they are going to profit a lot and that the authors of this law have only added an insult to an existing injury (Nicholas, 2012).

On the contrary, the caps have been received with much celebration by the common citizen in the county and the business fraternity at large including medical practitioners. In fact, Rolf (2012) campaigns for a higher cap on damages that are derived from a statutory action. The fact that the courts have experienced difficulty in quantifying the amount of damages for pain and suffering is incontrovertibly a fitting justification for the existence of the limitations. (Krauss, 2014).

The costly and unreasonable awards of damages by the court that have been comparatively influenced by emotions have since been repressed by the provisions of limitation on damages. (Ward, 1988). In the United States for instance, it has been discerned that the jury has sometime sympathized with the claimants, a reality that has been argued to be turning the courts into courts of emotions rather than law. This is an outright flagrant violation of the rights of the defendant party to a fair trial and the right to be heard.

In a bid to apply the facts of the thermomix users’ case in this discussion it is it prudent to note that the both the thermomix users and the manufacturers should celebrate the bringing to life of limitation on damages (Sharkey, 2005).  It may seem facile to say so but these limitations reduce the cost of doing business and cost of products in the market. Accordingly, if a heavy sum of damages is awarded in the thermomix case their insurers will have to suffer the burden of compensating the heavy sum of money. This will result in the amendment of the amount of premiums that the manufacturing company. On seeing this, the manufacturing company will share the burden to the cost of their products which will inordinately increase.

On a lighter note the medical practitioners and their patients alike have also celebrated the damage caps. The cost of medication was skyrocketing as medical insurers increased their premiums to. It has been said that a majority of doctors will not give their best attention and decision in deciding the medical of their patients for fear of negligence law suits (Brown and Robert, 1999). With the caps, doctor can be free for the costly and unreasonable amount of damages that was imposed on them. Patients on the other hand have benefited from reduced medical expenses.

Other pertinent arguments that have aroused the concern of the legal fraternity are that the damage caps have intruded on the doctrine of separation of powers. The lawmakers have been held to have taken away the discretionary function of the judges. They argue that the damages can only assessed on case by case basis by the court who will be hearing the parties. Some have propounded the argument that the takes away the constitutional right to heard by a competent court or jury.

Some manufacturers have however taken advantage of these caps such as in defamation cases where the defendant who can be a Newspaper Company knowingly makes a defamatory statement but they do so because the sales that will be made preponderate against the limit placed on the damages. It is thus a recommendation that the law that provides for the limitation of damages should not be an absolute law but rather one that also accommodates some exceptions to fit in meritorious claims that won’t see the caps sufficiently compensating the claimant.

3. The need to protect consumers is one that has existed since antiquity and in Australia the Australia Consumer Law (ACL) has the moral imperative to protect the consumers within their jurisdiction. For the purpose of the thermomix case the ACL protects the consumers from safety defects of product from manufacturers that cause harm to the consumers. Manufactures products that are not safe for general use attract liability to the manufacturing company for economic loss, personal injury and damage that has been suffered (Australia Consumer law part 3-5).

The locus standi in product liability claims that are initiated pursuant to the ACL has been extended to also include regulators who must have consent from the injured parties. Essentially, this implies that the regulators can also sue on behalf the users who have been harmed by the defective products of the consumers.

There are grounds that must be satisfied for a claim to be brought under the ACL (Australia Consumer Law Section 138-141). At the onset the claimant must prove that the harm or injury suffers was as a result of the defect in the product. The defect in the product should not be defined by poor quality of the product but the product should in the eyes of a reasonable person be actually defective. The thermomix injured users were harmed by the defect in the product and thus they satisfy the first ground.

Surprisingly, persons who were not directly users of the product but were injured as a result of the defective product can also bring a claim. Further, if a person is injured as a result of the injuries that were suffered by the users of the product, he or she can also institute a claim. Where property such a land is destroyed by a defective product and someone if injured in the process, he she is into the bargain entitled to a legal claim against the manufacturers.

Over and above all stated, the two companies involved in our fact in issue, Vorwerk & Co. KG and Australia Pty Ltd ‘TIA’, are regarded as manufacturers of the product albeit the Australian company seems not to be the actual manufacturer. It has been held that they are both equally liable to the claims of the thermomix users (Leeks v FXC Corporation, 2002).

The defenses to the defective goods actions are only allowed within the Australia consumer Law part3-5 sections 142 and 148. The thermomix manufactures can claim that the safety defect being claimed by the claimants was not in existence at the time the product was delivered to the user. The manufacturers can also rely on the defense that at the time the product was being dispatched for delivery  the manufactures did not have the scientific and technical capability to detect any further defects in the product and that they exercised reasonable skill and care to ensure that there were no safety defects in the products.

The manner and mode in which the goods were packed or designed can also be a possible defense where the manufacturers can claim that the goods were not packed in a manner that is up to standard. However, despite it being a defense under the ACL this defense does not hold water and would in most instances be defeated. In conclusion the manufactures in product liability claims can claim that it is in the nature of the goods to be harmful unless the directions provided for use are strictly adhered to (Cook v Pasminco, 2000).


Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48

Australia Consumer law

Barnett v Chelsea & Kensington Hospital (1968)3 All ER 1068

Bolam v Friern Hospital Management Committee (1957) 1 WLR 582

Browne, J. and Robert, P. (1999). The Effect of Legal Rules on the Value of Economic and Non-Economic Damages and the Decision to File. Journal of Risk and Uncertainty 18(2): 189-213.

Caparo Industries v Dickman (1990) 2 AC 605

Capital v Hampshire County Council (1997)QB 1004

Carroll v Fearon, Bent and Dunlop Ltd (1999) PIQR P146

Civil Liability Act 2002 WA

Civil Liability Act 2002 NSW

Cook v Pasminco [2000] FCA 677)

David, R. (2005). The Interaction of Remedies for Defamation and Privacy Precedent 14

Defamation Act 2005 (NSW)

Donoghue v. Stevenson (1932) UKHL 100

Grant v Australian Knitting Mills (1936 ) A.C. 562

Heaven v Pender (1883) 11 QBD 503

Home Office v Dorset Yacht Club (1970) AC 1004

Kent v Griffiths (2000)2 WLR 1158

Krauss, M. (2014). Pain and Suffering' and the Rule of Law: Why Caps Are Needed

Langridge v Levy [1837] EngR 156

Leeks v FXC Corporation  [2002] FCA 72

Nicholas, P. (2012). Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy, 17 Deakin Law Review 139

Office of the Australian Information Commissioner

Sharkey, M. (2005). Unintended Consequences of Medical Malpractice Damages Caps, 80 New York Univ. Law Rev. 391

The Australian Consumer Law, (2010) A guide to provisions

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

Viscusi ,W. (1996). Pain and Suffering: Damages in Search of a Sounder Rationale, Michigan Law and Policy Review 1: 141-178.

Willsher v Essex Area Health Authority (1988) 1 AC 1074

Ward, J. (1988). Origins of the Tort Reform Movement, Contemporary Policy Issues 6: 97-107.

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