Breach of duty of care
Discuss About The Suffered Damage Product Of The Manufacturer.
The duty of the manufacturer etc. is towards every neighbor who had suffered damage from the product of the manufacturer. A neighbor means any person who is in proximity with the manufacturer or seller who might get damaged by the act of the manufacturer etc. A neighbor can be any person who is likely to suffer loss by the act of the manufacturer and is held in (Caparo v Dickman , 1990). Hence the consumer is neighbor of manufacturer as he is likely to suffer from the product of the manufacturer and is held in (Sutherland Shire Council v Heyman , 1985).
Thus, it can be analyzed that the every manufacturer or seller of the product has the duty of care towards the consumer who in turn use their products. It is necessary that a duty can only be imposed upon the manufacturer when the plaintiff against the duty is to be applied can be reasonable foreseeable by the manufacture and the plaintiff moist also be in proximate relationship with the manufacture.
It is now important to understand whether there is any duty that is imposed upon Thermomix in Australia Pty Ltd.
Thermomix is into selling of TM31, a $2000 a kitchen appliance, so, it is the duty of Thermomix that the said products sold by it does not cause damage to any customer who uses it. Any damage caused by the use of the product by the customer is reasonably foreseeable as there is proximate relation between the seller and the consumer. Thus, the duty of care is established on the part of Thermomix.
The Breach of duty of care comes into play when the duty of care is established upon the wrongdoer and it is necessary to imply whether the same is met by the defendant adequately or not.
The breach is said to be done by the wrongdoer or manufacturer when the level of care that should had been taken by the manufacture had not been taken. In that scenario the duty of care is said to be breached. A duty of care is said to be breached when the reasonable care as per the prudent person is not taken care which ought to have been taken in like situation by a prudent person and is held in (Wyong Shire Council v Shirt , 1980). (katter, 1999)
The duty of care had been breached by the Thermomix as TM31 was a defective appliance as it had an inherent defect due to which the damage had been caused to people i.e. burns, scalds etc. Also the Thermomix did not file any of the 14 reports delineating serious injuries which were to be filed within time of mandatory 48-hour. It was the duty of Thermomix that as and when the defect came into its knowledge it must had bought same into knowledge of the consumers. Hence from the above said facts the duty of care had been breached by Thermomix.
The resultant damage due to breach of duty of care is to be made good by the manufacturer or wrongdoer due to whose acts the resultant damage happened.
In case the damage caused is too remote and not foreseeable by the prudent person, than, the wrongdoer cannot be held liable for negligence. But in case the damage is caused due to the product of the wrongdoer and same was foreseeable then the resultant damage is to be faced by the wrongdoer. (Lunney & Oliphant, 2013)
Thermomix TM31 was having inherent defect in it and the same was the reason for the loss and damage to the consumers who used the same and the damage caused was reasonably foreseeable and not too remote. Thus the Thermomix will be liable for the damages suffered to the customers by the usage of the product supplied by Thermomix.
As all the above said ingredients are fulfilled by Thermomix so hence it can be said that Thermomix was negligent in its actions as it had duty of acre owed upon it towards the customers and it in turn breached the same which in turn lead to damage to the customers who used the products supplied by Thermomix.
Negligence committed by a manufacturer is dealt with by The Civil Liability act 2002.
Part X of The Civil Liability act 2002 is related to the negligence.
Duty of care - As per Section 5B of The Civil Liability Act 2002 the duty is said to be upon the wrongdoer only when the act which causes damages to the plaintiff are foreseeable and the reasonable prudent person in the like situation can access the damage that had occurred by the act in normal circumstances. Other factors such as the extent of harm the care taken by the wrongdoer are also considered while burdening the wrongdoer with the duty of care.
The Civil Liability Act 2002 – New South Wales
The wrongdoer has the duty of warning the injured in case any risk of damage to the injured comes to his knowledge and the wrongdoer is also duty bound to act in such a manner so as anybody should not suffer due to such risk and hence he is duty bound to avoid any damage to the injured.
In the given case, Thermomix inspite of having knowledge of the risk did not report it to its customers and thus the Thermomix had in turn violated the duty of care which it had been burdened with and in turn the Thermomix had violated the Civil Liability act 2002.
The damage caused to the injured must be due to the act of the wrongdoer as per Section 5D of the Civil Liability act 2002 and the burden of proving that the wrongdoer was negligent and the injured had suffered due to his negligence is stated in Section 5E of the Civil Liability act 2002.
The section 5D had been violated by Thermomix in the instant case as Thermomix is the reason of damage to its customers.
The role that the concept of limitation of personal damages as per the civil Liability Act 2002 is very significant when the same is applied to the tort of negligence.
As per the Civil Liability Act 2002 the court while awarding the damages are bound by the section 12 of the Civil Liability Act 2002 which thus limits the damages that can be awarded in favor of the injured. As per section 11A of the Civil Liability Act 2002 the Section 12 of this act can only be applied when it is established after trial that there is negligence on part of the wrongdoer or he had committed breach of the provisions of the contract. (Barnett & Harder, 2014)
As per section 12(1) of the Civil Liability Act 2002 the damages are assessed keeping in view the past loss or future loss or for the loss of financial support expectation.
The cap that is raised by the section submits that the liability that can be claimed by the plaintiff is maximum to three times of the average weekly earnings that can be acquired by the plaintiff at the date of the award.
As per Section 12 of the Civil Liability Act 2002 the damages can be for the loss caused due to loss of earning or financial support expectation. But the persons of high income group will only be affected by the cap that had been forced by the courts.
The wrongdoer had also been granted some liberation under the Civil Liability Act 2002 as the amount of the damages that can be claimed by the injured cannot be more than three times of earning capacity or financial support expectation or earning to the injured. (Barnett & Harder, 2014)
As per the Australian Consumer Law, Part 3-5 various rights are available to the consumers which allow them to take action against the manufacturer or seller in case of the product is not proper.
As in the instant case also the manufacturer or Thermomix will be liable to the consumers who suffered due to sue of their product. (Corones, 2012)
EC directives provided on the defective goods had been applied to the part 3-5 of Australian Consumer Law. In the Australian Consumer Law the guarantees provided to the consumer cannot be excluded or omitted as per the act. In case of defect in the product of the manufacturer the consumer can ask for compensation from the manufacturer as per the damage suffered by the consumer.
As per the Australian Consumer law if the manufacturer is not identifiable by the consumer then he can make request to supplier to give the detail of the manufacturer and hence make the consumer identify the consumer.
As the goods are imported by Thermomix in Australia and the said Thermomix sells the goods through the natural persons who have tied as per the contract with Thermomix , so in this case the consumers can take help from the Thermomix and trace the manufacturer (i.e. Vorwerk & Co. KG, a company of Germany) from which Thermomix had imported the goods.
The manufacturers have to be abide by the statutory provisions stated in Part 3-2 of the Australian Consumer law which are as follows: (Goldring, Maher, McKeough, & Pearson, 1998)
The quality of the product must be of Acceptable quality. As rightly held in the leading case of (H Beecham & Co Pty Ltd v Francis Howard & Co Pty Ltd, 1921), the quality of the product is said to be of acceptable quality when the same is free from any kind of defect, safe to use and fit the purpose for which it had been bought.
The goods as stated in provided article as sold by Thermomix are not as per the norms of Australian Consumer law as they are not of the acceptable quality and thus lead to damage to its customers.
The product must be fit for disclosed purpose of the consumer. As when the consumer purchases the product the purpose of same is disclosed by him to the seller so that purpose must be achieved by the product and it is necessary that the product that is sold by the seller must be equivalent to such propose.
The product sold to the consumer must correspond with the description of the goods as provided to the consumer prior to selling the goods to him and is rightly held in (Varley v Whipp, 1900)
In case any sample or demonstration is made to the consumer then the goods supplied to him must also correspond to the sample provided to him.
In case the goods supplied are defective then it is the duty of the manufacturer to set them right by repairing the same.
As a clause in the agreement of Thermomix states that "would not provide refunds or replacements as a remedy at any time" which is not valid as per provisions stated above and manufacturer cannot deny his liability by such clauses. The statutory provisions stated in Part 3-2 of the Australian Consumer law cannot be exempted by stating an exemption clause in the agreement by the manufacturer.
In case the provisions stated in Part 3-2 of the Australian Consumer law are not complied with then the consumers can bring action against the manufacturer under Part 3-5 of the Australian Consumer law. Part 3-5 of the Australian Consumer law states that any consumer if suffers loss due to product can do the following acts:
- Claim compensation for the damage suffered by him
- Legal representatives can Claim compensation for death of the customer
- Claim compensation for the loss suffered by him due to usage of the product
- Claim compensation for the damage caused to immovable assets of private nature i.e. buildings, lands and fixtures etc. suffered by him
That in any of the above said case as mentioned above the consumer can make a claim against the manufacturer.
- The manufacturer can state that the product was supplied in proper form as there was no defect when same was supplied by the manufacturer.
- The defect is present in product is due to the compliance of necessary standard by the manufacturer.
- The defendant can also prove that when the product was manufactured by him, then, t5he defect might be present in the product but there was no enough technology that was orient at the time that could held in deterring the presence of the defect.
As stated because of the violations as stated that had been made by the Thermomix the ACCC had sleeked injunction, declaration, penalties, corrective publication orders, costs and compliance program orders against the Thermomix.
Hence the Thermomix in Australia was imposed with a fine of $4.6 million by the courts in April 2018. Thermomix was held liable for misleading the customers regarding the product that are sold by them.
Barnett, K., & Harder, S. (2014). Remedies in Australian Private Law. Cambridge University Press.
Caparo v Dickman (1990).
Corones, S. (2012). The Australian Consumer Law. Lawbook Company.
Donoghue v Stevenson (1932).
Goldring, J., Maher, L., McKeough, J., & Pearson, G. (1998). Consumer Protection Law. Federation Press.
H Beecham & Co Pty Ltd v Francis Howard & Co Pty Ltd (1921).
Haley v London Electricity Board (1965).
katter, N. (1999). Duty of Care in Australia. LBC Information Services.
Latimer, p. (2012). Australian Business Law 2012. CCH Australia Limited.
Lunney, M., & Oliphant, K. (2013). Tort Law: Text and Materials. OUP Oxford.
Sutherland Shire Council v Heyman (1985).
Varley v Whipp (1900).
Wyong Shire Council v Shirt (1980).