Discuss about the Commercial Law and Policy.
The Thermomix Appliance is the brand name for the types of the electricity product with powered by the kitchen appliances. The appliances are made in France by a German company Vorwerk & Co. KG, which seems to be exclusively imported to Australia by the company Thermomix. The company TIA sells the appliances only by the help of the referred consultants who consists of the contractual rights in order to sell the appliances to retail and trade consumers from TIA. With considering the case of the Thermomix, the appliance seems to be creating a lot of problem which are being faced by the consumers. In fact the appliance creates drastic damages to the household consumers and thereby the burnt damages of the human beings or the consumers are depicted with respect to the provided case (newell, 2014). It thereby provides the incident report of the consumers that receives treatment from the doctors and the nurses.
The consideration of the case study provides the detailed explanation of the injuries created by the product Thermomix supplied by TIA. As per the incident provided in the Appendix one with the detailed comment of both the consumers and the company TIA, provides the negative feedback with providing irregular explanation to the issues or the complaint launched at the forum of TIA. In context the issues, it depict the cases of serious burns at the chest, arms, neck and faces with the 2nd degree burns are also depicted (Goldring, 2005). The complaints of the replacements with the consumers facing consistent problems and with respect to this issue no actions were taken for the product supplied by the TIA. Henceforth the details of the issues also depict the cleaning functions problems with leading to the burst of the product and thereby making the case more critical in case for the consumers. In maximum cases the bursting of the machine seems to be taking place with providing the inappropriate function or depicting the malfunction of the system in the product.
s, the case seems to be judged on the basis of the inappropriate maintenance of the services regarding the product which thereby creating harm to the people. With reference to the Civil Liability Statute, the case provides the injuries are depicted in this case and thereby the compensation laws regarding the Civil Liability Status are applied in this case which depicts the claims that are made by the consumers for the harms crested by them (Regan, 2012). Under the Legislation ACTS of section 5(3) by the Civil Liability and the Other Legislation Amendment Act 2010 (old) with the consideration of the Civil Liability Act 2003(old), depicts the allowing of the damages that are created for allowing the damages to be awarded under the section 59A. This section also depicts the general inclusion of the personal injuries that seems to be depicted in this case and thereby the claims are made with thereby providing the legal legislations which seems o be depicted in this case and thereby the inappropriate domestic service are provided by the company TIA which lead the company to a major breakdown. The provision of the claims which are made against the company seems to be dust related for the company which are compared to the smoking (Santucci, 2011). The Section 6 of the Personal Injuries Proceedings Act 2002 states that the Act seems to be applied to all the personal injuries made by the court proceedings. With the failure of the case, the company is penalised as per the above mentioned Sections and the Acts which creates importance for this case and thereby the considerations are created accordingly. The situations depicts the appropriate claims that are prepared for the consideration of the case and thereby the consideration of the injuries and the case of the forgery are depicted in this case and thereby the legal actions with reference to the Civil Acts are made against the case depicted in the case study.
The consideration of this case provides successful implementation of the Act that are followed with creating compensation for the consumers as per the Act of Compensation Legislation which are the Personal Injuries Proceedings Act 2002 and the Section (209)(b) of the Anti Discrimination Act are referred in this case (YEUNG, 2005). The application related to this Acts provides the appropriate implementation of changes that are made against the injuries created by the TIA. The consideration of the application provides the appropriate implementation of the changes with awarding the claims that are made by the consumers with depicting the damages that are created by the Company. The interpretation is also depicted with relating to the harm caused to the consumers. It also depicts the tort of the laws that are depicted in this case with the appropriate measurements mentioned. The aspects are considered with the provision of the respondent which is created in order to enclose the disclosure of the documents. The issues help in depicting the incident and thereby the obligation helps in creating the claimant and thereby the incident’s helps in determining the obligations that are depicted against the company which henceforth helps in determining the issues (White, 2009). The establishment of the obligation helps in creating the issues against the company with thereby indicating the claimant about the faults that are made by the company. Henceforth, the justifications of the case are made with relevant to the case and thereby the common law legal Principles are stated with the consideration of the fact of the Thermomix.
The tort law puts limit on the money amount that can be awarded for damages in personal injury case. The damages in the personal injuries can be limited by different legal concepts and state statues. The total damage amount other than the damages for the economic losses should be capped at same amount as cap on damaged for the non economic loss in the defamation. The introduction of the reforms to Wrong Act 1958 was staggered, with provision introducing caps to economic loss and general damages and changes to discount rate (Barker, 2005). Caps play a significant role in limiting the extent of tort liability that might be owed to injured users. The injured one gets compensation for the damages. The total damage amount other than the damages for the economic losses should be capped at same amount as cap on damaged for the non economic loss in the defamation. According to the tort law, there are two types of damages: non economic damages and economic damages. Damage caps helps to manage high cost of carrying out business by reducing the liability of the service providers (Burrell and McGinn, 2009). Caps limit the amount of money of the non economic damages that can be awarded for injury case. The civil liability statue provisions states that caps limit the extent of the tort liability that can be owed to inured person. Therefore, in the given case study caps limit the amount of the non economic damages of the company that would be awarded to injured individual. The maximum damage amount that can be awarded for the losses is subject to cap on the basis of total average weekly earnings (Davenport and Parker, 2011). The maximum damage amount that can awarded to claimants for the non economic losses is a cap of amount $371380. The injured person should provide evidence that he or she had suffered a major injury. The Wrongs Act explains damages for the economic losses are awarded generally as the lump sum with earning capacity loss capped based on the AWE. The economic damages are damages that an injured person has paid out or will continue to be paid as a result of the injury. Non economic damages are referred to as different types of suffering, pain and loss due to damage (Hayward, 2011). Punitive damages are established to punish individuals who is doing wrong things and performing bad conduct.
The government has implemented law in order to change traditional rules and regulations in the name of the tort reform. Under traditional rule and regulation, a claimant can claim full damage amount from the defendant. The rational for several and joint liability was that the claimant should not be simply punished because one of the defendants was impossible to find (Homburg, 2008). The states passed law to eliminate several and joint liability and require the defendant to pay her or his proportionate liability. The collateral source rule obstructs the defendant to present at the trial evidence that the claimant has received compensation for injuries from other sources. The Australian Law Reform Commission introduced cap on the damages other than for the economic loss. The total general damages amount for the non economic loss and the exemplary damage awarded would be capped at same amount as cap on the damages for the non economic loss in the defamation awards (Malbon and Nottage, 2013). The law explains the details of claims and the amount of money that should be compensated. The law also states that the claimant would not be compensated for non economic losses. When an individual suffers an injury and they should be awarded for monetary losses and not for non economic losses. Therefore, a injured person can be awarded for suffering and pain, physical impairment, inconvenience, loss of consortium and disfigurement (McGrath, 2007). The damage cap refers to the law that amount of money is limited that to be awarded for the cases. The legislatures and laws have enacted caps in the civil cases. However, some caps are for only specific types such as medical malpractice and some of the states limit the non economic damages (Miller, Sims and Miller, 2013). Therefore, damages on caps states that personal injury such as medical malpractice case or accident case can get compensations for non economic and economic damages. The economic damage includes financial losses that have been suffered due to the injuries such as the medical bills, loss of income, cost of the future treatment, and so on. The non economical damages are not claiming for the economic losses but for the emotional and pain distress that have suffered due to the injuries (Mo, 2012).
As per the Australian Tort Law, it will be considered as the Law of negligence as due to the negligence of the manufacturer and trader company the consumer of the product has to face such a dreadful incident and has to suffer from these types of unbearable pain and injury. Therefore, the manufacturer company as well as the trader company both will be liable for the harm and injury occurred for the plaintiff (O’Sullivan, 2008). As per the Australian Consumer Law, the company should be liable to the customer, the product the companies sold should not be harmed to the customer, and they must be secure. Here the company Thermomix trades the kitchen appliances within the Australia and the company imports the product from France, where the product is manufactured by the German Company. The company is liable for the injuries occurred to the customers, who are suffering from the product as the product burst at the time of cooking (Shaw, 2003). And the customer severely injured from the products the company has to check the product and take care of the customers’ security. The companies have to take adequate care for the product security and customers’ safety. In these cases there are several incidents where the customer of the Thermomix suffered from the bad quality of product. Moreover, the product was unsafe for the customers thus the company must be sued for the injuries happened to the customers (Sweeney, O’Reilly and Coleman, 2010). The defense of the distributor company would be that they were not producing the products and they can say they are not liable for any manufacturing defect of the product. They are only liable for the trading activities. The manufacturing company is also defense themselves by producing the fact that in the time of operating the products the safety green seal was not used and in that case the company is not liable as the company provide the user manual and where all the instructions for the use of the products has been written clearly (Thomas, 2010). Moreover, it was the customers’ fault that they misuse the product and cannot handle the product with proper care. Therefore, in that case the company is not liable to the accidents occurred to the customers and the injuries and pain the customers have to suffer was for their own practices. In this case the company was not liable for the injuries occurred to the customers. The Australian consumer law provides protection and rights to the consumers. In the given case study, the manufacturer or distributor of Thermomix appliance are responsible to the injured persons as per the Australian consumer law. The injured persons can take legal actions against the manufacturers and distributors (Watson, Gleeson and Higgins, 2013).
With the consideration of the case study of TIA, the ACL actions that are undertaken with providing the details of the case study, on the basis of Australian Consumer Law, the guilt is proved to be the company with showing the violation of the riles and thereby the creation of the defences are presented with focusing on grounds of the manufacturer. The manufacturer is depicted to be the TIA which seems to be proven fault in this case. The case also provides the views of the company with thereby creating a discrimination of the products and thereby this type of mixing made by the company seems to be determining results that seem to be against the company. With the consideration of the actions of the company, the distribution of the application of the laws is evenly made which provides the information of being guilt for the company (Sweeney, O’Reilly and Coleman, 2010). According to the Australian Consumer Law, the approach provides the appropriate information with making appropriate judgment of the laws with undertaking the views of the company and thereby the Supreme Court of the Queensland provides the information with providing appropriate views for the consumers with arranging them their claims against the company. The claims are repaid in the form of the penalty and thereby the penalty seems to be applied by the court according to the Act of Civil Liability 2003 chapter 2 pt 1 div 1. The risk of the injury case was applied on the company and henceforth the Company was proven to be guilt in this case.
References
Barker, D. (2005). Essential Australian law. Sydney, N.S.W.: Cavendish.
Burrell, D. and McGinn, J. (2009). Cornerstone law series. [Adelaide]: Law Society of South Australia.
Davenport, S. and Parker, D. (2011). Business and law in Australia. Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia.
Hayward, B. (2011). ‘Commercial Arbitration in Australia’ by Doug Jones.Deakin Law Review, 16(2), p.569.
Homburg, J. (2008). Cornerstone law series. [Adelaide]: Law Society of South Australia.
Malbon, J. and Nottage, L. (2013). Consumer law & policy in Australia & New Zealand. Annandale, N.S.W.: Federation Press.
McGrath, S. (2007). Cornerstone law series. [Adelaide]: Law Society of South Australia.
Miller, R., Sims, R. and Miller, R. (2013). Miller’s Australian Competition and Consumer Law annotated. Pyrmont, N.S.W.: Law Books.
Mo, J. (2012). International commercial law. Chatswood, N.S.W.: LexisNexis Butterworths.
O’Sullivan, P. (2008). Cornerstone law series for new lawyers. [Adelaide]: Law Society of South Australia.
Shaw, M. (2003). International law. Cambridge, U.K.: Cambridge University Press.
Sweeney, B., O’Reilly, J. and Coleman, A. (2010). Law in commerce. Chatswood, NSW: LexisNexis Butterworths.
Thomas, G. (2010). Cornerstone law series. [Adelaide]: Law Society of South Australia.
Watson, J., Gleeson, J. and Higgins, R. (2013). Historical foundations of Australian law. Annandale, N.S.W.: Federation Press.
White, R. (2009). Cornerstone law series. [Adelaide]: Law Society of South Australia.
Goldring, J. (2005). Civil Liability Law Reform in Australia : the “King of Torts” Is Dead. Uniform Law Review – Revue De Droit Uniforme,10(3), 447-468.
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Regan, P. (2012). Enacting Legislation–a Civil Servant’s Perspective.Statute Law Review, 34(1), 32-38.
Santucci, P. (2011). Substantive Fairness in Australian Standard Form Consumer Contracts: Lessons from the UK Experience. Oxford Uni Cwealth Law J, 11(2), 171-195.
YEUNG, K. (2005). Does the Australian Competition and Consumer Commission Engage in “Trial by Media”?*. Law Policy, 27(4), 549-577.
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