Discuss about the Negligence and Obligation Actions.
When one person owns duty of care towards another person, any negligence is conducted by person, or person fails to do something which he is under obligation to do and if such actions of person cause any harm, damage, physical or mental injury or economic and non-economic loss to other person then these situations are considered as tort of negligence, and it also determines the “duty of care”. Negligence law states that in case person suffers injury because of negligent act of another person than person who conduct negligent act is liable towards the person who suffers injury (NSW, n.d.).
Section 5 of Civil Liability Act 2002, defines negligence when one person fails to exercise reasonable care and skills towards another person. Section further stated that personal injury includes disease, any impairment related to personal and mental condition, and harm means any kind of economic or non-economic loss, damage caused to the property, and death or injury (Civil Liability Act 2002, n.d.).
Section 5A of Civil Liability Act 2002, states this part of Act applies on those claims and damages which are caused because of negligence act of another person, and no matter whether claim is brought under tort, contract or any other statute (Civil Liability Act 2002, n.d.).
A person can sue another person for seeking compensation from person whose conduct is negligent, and that person also desire to be in the same position that he was if negligence would not be conducted by another person. Court considers following factors to determine whether negligent is conducted by person or not:
When court is satisfied that all the above factors are present in the case, then only plaintiff can seek compensation and damages from defendant on the basis of negligence.
Section 5B of Civil Liability Act 2002, states a person was not negligent in failing to take precautions against a risk of harm unless:
Section further stated that Court consider following things to decide whether person taken precautions or not:
Section 5C of Civil Liability Act 2002, states that burden on person to take precautions for avoiding risk of harm also include burden to take precautions for avoiding similar risk of harm.
This section further stated that if person take action in different way for avoiding risk of harm then such action does not give rise to the liability or affect the liability, and if person subsequently take action in different way to avoid the risk of harm then such action does not give rise to the liability or affect the liability and also not automatically generate liability.
Manufacturer owns duty of care towards the person who use the product and it is the prime duty of manufacturer to make sure that products supplied to the customers are safe and they does not affect health of customers who use the products. Duties of manufacturer also involves the testing of products and services to ensure that products and services supplied by manufacturer are safe and healthy. Result of the tested products must be conveyed to the consumers, and distributor and manufacturer also provide information related to safe use of product and purpose for which product is manufactured (Work Safe, n.d.).
Any person who suffered harm because of the negligence conducted by manufacturer can claim against the manufacturer for compensation in the relevant court of NSW. Trade Practices Act 1974 in Australia state many provisions which makes the manufacturer liable towards their consumers in case of loss or injury suffered by consumers, but there is no unanimous agreement which impose any liability on manufacturer related to defected product. In case of any personal injury, damage or economic loss consumer can file suit against Wholesalers, distributors and retailers (Ahmed, n.d.).Donoghue v Stevenson is the best example, and this case is also known as ‘snail in the bottle case’. In this case, court established following rules:
Negligence: House of Lords finds that negligence is another form of tort, and law gives right to plaintiff to take civil action against defendant. In other words if defendant conduct any negligent act which causes any harm to plaintiff then plaintiff have right to take legal action against him. Before this rule, law required that plaintiff proves there is agreement for negligence between the parties.
Duty of Care: Judge further stated that manufacturer of product owe duty of care towards their ultimate customers, and Lord Atkin’s ratio decendi gives reason for liability of manufacturer towards ultimate consumers that is product reach to the final consumer in the same form in which manufacturer left it (Hughes, n.d.).
In case law Grant v Australian Knitting Mills (1936), court imposed liability on manufacturer in case of defective products which caused any physical or mental injury to plaintiff. Court further stated that manufacturer of product is also the insurer of the product, and in case of any injury manufacturer is liable (Blay, n.d.).
After determining the above laws and rules, the positions of Australian users of Thermomix appliance are clear. Burn injuries of these users are mentioned in the CHOICE Mass Incident Report clearly shows physical and mental injury to the plaintiffs. Therefore, in these cases Vorwerk & Co. KG and Thermomix in Australia Pty Ltd (‘TIA’) owes duty of care towards their customers, and they are liable towards them.
Rules stated in case law Donoghue v Stevenson defines the position of Vorwerk & Co. KG and Thermomix in Australia Pty Ltd (‘TIA’), and these rules states that manufacturer and importer owes duty of care towards their ultimate customers. In this case, Australian users of Thermomix appliance are the ultimate consumer of product manufactured by Vorwerk & Co. Therefore, it is clear that Australian users are ultimate consumer of Vorwerk & Co., and they are liable towards their ultimate consumer.
The users of Thermomix products has right to file suit against both Vorwerk & Co. KG and Thermomix in Australia Pty Ltd (‘TIA’) in the relevant court, and both the companies are liable towards their customers. At last we conclude, both the companies Vorwerk & Co. KG and Thermomix in Australia Pty Ltd (‘TIA’) are liable to compensate their customers who suffered injuries by using their defective product.
In NSW, laws related to negligence are amended in two separate stages. Stage one is known as reforms and this stage aimed at decreasing the number and cost of claims by placing limits on the amount paid as damages to the injured persons in various circumstances. Reforms provided in this stage were implemented through Civil Liability Act 2002.
In second stage these reforms involves fundamental assessment of law in case of negligence and personal injury (Miller, 2013).
In NSW, Civil Liability Act 2002 gets assent in June, but commencement of this Act was on 20th March 2002. This is also known as retrospective legislation. The Civil Liability Act 2002 puts limit on the compensation available to plaintiff for personal injury caused by negligent act of defendant. This Act also place limits on general damages and also set maximum amount of compensation in case of loss of earning capacity. Following limits are placed on economic and non economic loss:
Non-economic loss: In case of non-economic loss Civil Liability Act sets maximum limit of $ 350000 for damages, and later this limit was adjusted to $384500 after indexation. Non economic loss means those loss which award damages for pain and suffering, and they are also known as general damages. This maximum amount is awarded in most extreme and serious cases only. In NSW, initially the cap was set as $350,000, but now it is set at $551000. In case of Defamation Act stated cap of $250000, but now it is set at 355000.
Act also introduce threshold test for awarding damages in case of non economic loss, and this test also eliminates the claims which are small in nature. Section 16(1) of the Act states court does not award damages in case of non economic loss unless the severity of case reach the level of 15% of most extreme case.
In 2009, NSWLRC gives proposal for cap on invasions of privacy that is $150,000 which is less than defamation (ALRC, n.d.; Law council of Australia, n.d.).
Economic loss: economic loss means loss of present earning capacity of plaintiff and loss of future earning capacity. Act also sates limits for economic loss that is three times of the average weekly earnings. Limit is applicable on those persons also who was earning more or expect to earn more than that limit. Act also amend discounted rate to damages for future economic loss that is from 3% to 5% (Lindfield, n.d.).
Following table summarized the limits in personal injury damages:
|
Damages |
Limits |
|
Cap on Non economic loss |
$ 551000 |
|
Threshold test in non economic loss |
15% of extreme case |
|
Cap on Economic loss |
3 time of weekly earning |
|
Discount to damages for future economic loss (Tarakson, 2005) |
5% |
All these limits and caps on economic and non economic damages are also applicable on the users of Thermomix appliances who file suit under NSW Court. Cases stated in CHOICE related to users of Thermomix appliances who get injured from the defective products of manufacturer can file suit under relevant court but court award damages according to the rules of Civil Liability Act.
All the plaintiffs get their claim according to the caps and limits impose in Act for economic and non economic loss.
Australian Consumer Law (ACL) was established to provide protection to the consumers in relation to goods and services supply to them. Under ACL all the cases related to statutory consumer guarantee and other injuries are deals under the provisions of strict liability. In case of breach of guarantee provided to consumer, there is no need on the part of plaintiff to prove the fault of manufacturer but it is necessary to prove that goods manufactured by defendant are not fit for the purpose they are manufactured and quality of goods are not up to standard. When claim is bought for the defected gods than claimant needs to prove that goods manufactured by defendant have safety defect. Contract and provisions of ACL are governed by common law in Australia. Following factors must be proved by claimant for seeking damages from manufacturer or distributor:
Leeks v FXC Corporation (2002) helps in understanding the point that manufacturer of product is liable towards its ultimate consumer. In this case, reserve parachutes are manufactured by the company in its principle place of business that is USA. Mr. Lee purchased reserve parachute manufactured by the company from an importer in Australia. The parachute was used by Mr. Lee two times before the malfunctioning in the parachute which causes injury and damage to Mr. Lee.
Mr. Lee brought suit against the company under the provisions of common law in Australia on the ground of bad quality of parachute and goods are not fit for the purpose they are manufactured. Suit was also filed by Mr. Lee against the importer on the basis of deemed manufacturer. Court decided that Mr. Lee can seek compensation from both company and importer (Ryding, 2014).
ACL provide many rights to the consumers such as right to file compensation in case of personal injury or damage to the property caused by defective goods, Act also gives access to those persons who purchased the goods but did not use them, and those also who get injured by the goods purchased by any other person. In this consumer has right to seek for compensation in the same way as any other claim under ACL.
Chapter 3 of ACL states that some particular conducts are prohibited and this chapter also regulates particular practices which are coordinated with those transactions which are related to consumer. This chapter also provides support to the general prohibitions mention under chapter 2 of the ACL.
Chapter 4 of ACL defines the offences which are related to matters specified under chapter 3 of ACL. This chapter of ACL also states that some particular breaches of law are treated as breach of provisions of criminal law and such breaches are considered under criminal law (ACL, n.d.).
Chapter 5 of ACL defines those remedies which are available to consumers at the time of infringement of their right, and Act also states the national enforcement power which is enforced by consumer law regulators. There are number of civil penalties and remedies provided by Act in case of breach of provisions. It is not necessary that all breaches are decided by court, only necessary suits are entertained by court. There are some examples such as refund of money to consumer, replacement of goods, repairs, and other remedies in case when supplier breach the guarantee provided to consumer.
It is clear from the above facts that all the persons who suffer injury because of the negligence of Vorwerk & Co. KG has right to file suit against the company under ACL, and they can seek compensation for damage from company because ACL protect the consumers against the act of manufacturer. After considering the judgment of court in the case law Leeks v FXC Corporation (2002),any person who suffer injury because of the act of manufacturer that is Vorwerk & Co. KG has right to file suit against both manufacturer as well as deemed manufacturer that is TIA who sell Thermomix appliances in Australia. Manufacturer and deemed manufacturer are liable towards the people who suffered injury from the Thermomix appliances.
References:
ACL. Legislation. Retrieved on 10th January 2017 from: https://consumerlaw.gov.au/the-australian-consumer-law/legislation/.
Ahmed, U.S. Products Liability in Australia. Retrieved on 10th January 2017 from: https://www.austlii.edu.au/au/journals/UTasLawRw/1979/5.pdf.
ALRC. Remedies and Costs. Retrieved on 10th January 2017 from: https://www.alrc.gov.au/publications/11-remedies-and-costs/cap-damages.
Blay, S. Product Liability. Retrieved on 10th January 2017 from: https://www.findlaw.com.au/articles/225/product-liability.aspx.
Hughes, A. Liability. Retrieved on 10th January 2017 from: https://www.corrs.com.au/assets/thinking/downloads/Product-Liability-First-edition-2014.pdf.
ICLG, (2015). Prroduct liability 2015. Retrieved on 10th January 2017 from: https://www.claytonutz.com/articledocuments/178/ICLG-Product-Liability-Australia-2015.pdf.aspx?Embed=Y.
Law Council of Australia. Whole person impairment thresholds. Retrieved on 10th January 2017 from: https://www.lawcouncil.asn.au/lawcouncil/index.php/library/clp-watch/10-divisions/101-what-were-the-major-changes-to-personal-injury-laws.
Lindfield, M. NSW leads the way in introducing public liability reform. Retrieved on 10th January 2017 from: https://www.findlaw.com.au/articles/1121/nsw-leads-the-way-in-introducing-public-liability-.aspx.
Miller, D. Creighton, G. Kaminskas, D. (2013). A user’s guide to the Civil Liability Act 2002 (NSW). Retrieved on 10th January 2017 from: https://www.cbp.com.au/publications/2013/january/a-user-s-guide-to-the-civil-liability-act-2002-(ns.
NSW. Duty of care and duty to consult. Retrieved on 10th January 2017 from: https://www.safework.nsw.gov.au/law-and-policy/employer-and-business-obligations/duty-of-care-and-duty-to-consult.
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.
Tarakson, S. (2005). Personal injury. Retrieved on 10th January 2017 from: https://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/personal_injury_51.pdf.
Work safe. Designers, manufacturers and suppliers. Retrieved on 10th January 2017 from: https://www.worksafe.vic.gov.au/safety-and-prevention/your-industry/manufacturing/your-legal-duties/designers,-manufacturers-and-suppliers.
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