1.For those injured, explain the basis of possible liability in the tort of negligence that any manufacturer or distributor of the Thermomix appliance might have to those users. Leave aside the question of the amount of damages, but in your answer refer to common law legal principles and (where relevant) to any relevant civil liability statute provisions that apply in your State.
2.What role do the relevant caps on personal injuries damages play in limiting the extent of possible tort of negligence liability that might be owed to the injured users?In your answer, refer to the relevant civil liability statute provisions that apply in your State.
3.Do the injured users have possible rights under Part 3-5 of the Australian Consumer Law (ACL) against any manufacturer or distributor of the Thermomix appliance? If so, on what grounds could they bring such an ACL action and what defences might a sued manufacturer or distributor have? Leave aside any question of the amount of damages under the ACL.
1.According to negligence of tort law, when a person is obligated to carry out the duty of care towards another person, will be held responsible for undertaking suitable measures for ignoring the risks that generally arise from any kind of act or omission of that individual in causing injury to the injured individual. Therefore, the damage caused to the injured person must be foreseeable and should be a direct result of the act of the party that has caused such kind of an injury. Hence, in relation to be successful by getting the claims of negligence, the injured party should determine a few conditions. The conditions include an existence of a relationship of duty to care between the plaintiff and the defendant, breach of the duty of care by the defendant and the damages caused should have a direct result consisting of the breach of duty.
The law of negligence is governed by the Wrongs Act 1958 and it consists of the legal principles of duty of care. The individual in this scenario owes a duty of care that is deemed to carry out the standard of care towards the plaintiff for extending any act on part of the defendant who is predicted to cause some sort of injury to the defendant. Such a situation results in the condition of duty of care. The case of Donoghue v Stevenson [1932] states that the concept of neighbor principle that was established which stipulates the fact that one person should execute the care towards the neighbor. On the other hand, neighbor is related to that individual who gets affected by the acts exercised by the defendant.
For establishing a situation when there is breach of duty of care the court should establish whether the defendant has maintained the reasonable standard to take care while conducting any activity (Foley & Christensen, 2016). Thereafter, the Court should establish whether there was any kind of reasonable care that was carried out to the standard of care. Any prudent individual in the similar situation would exercise the care. However, if the Court deems the risk that has been caused by the activities of the defendant and is high in nature then the defendant can execute additional methods to ensure that the risks should not arise. Therefore, under these unusual scenarios, the facts of the case makes it evident that the defendant was negligent enough while carrying out his activities or causing any kind of damage to the plaintiff. Res ipsa loquitor refers to such a situation. This is because the principles imply the facts of the existing case and speak for themselves.
It is the duty of the plaintiff to determine the damages that have been caused to the plaintiff as it was a direct outcome of the breach of duty of care as caused by the defendant. Thus, situation is referred to as the breach of duty of care caused damages. The plaintiff thereafter must determine the ‘but for’ test where the plaintiff will not prolong such kind of damages but for the breach of duty of care by the defendant since the plaintiff had suffered injuries or loss.
The plaintiff needs to determine the injuries that have caused a direct result of the activities on the part of the defendant. It is an immediate result and not a remote cause. Negligence is referred to as a factual causation of harm and it therefore requires the plaintiff to determine all the facts that have been attributed to the causation of the issue (Henderson, Kysar and Pearson, 2017). Thus, the plaintiff is required to determine the fact that the injury or damage suffered was not expected and the plaintiff was unaware of these situations.
Therefore, the plaintiff cannot claim for the damages for any kind of injury that has resulted from the risk occurred. The risk cannot be ignored in spite of executing a reasonable standard of care. In the process of establishing the importance of an injury, the Court can believe that there has been an extent of harm caused to the injured person. Due to the injury that is the outcome from the breach of duty of care. Similarly, after examining the nature of the injury, the extent of the harm caused should be met at the verge of the case related to the significant injury.
If applied in the scenario of Thermomix appliance, the owners were observed to be injured and had gone through burn injuries because of the kitchen model. It lacked safety. It was determined in the case of Donoghue v Stevenson that the manufacturers had a duty of care towards the customers who had purchased the products. This kind of principle had transferred into a legal principle that ensures to keep the customers safe from the loss or injury due to failed commodities.
As it can be observed from the existing law of negligence that the Thermomix Appliances owed a duty of care towards the consumers and therefore, it is their accountability to make sure that the products are kept safe for using (Keeton, 2017). Therefore, in such a case, the company did not receive success for executing the necessary standard of care to make sure that the products used are kept safe. The care is expected to be maintained in this particular case, as it is quite evident to notice that the manufacturers will provide the products without fault and the products that are safe. The individuals should make sure that the reasonable standard of care in the similar scenario.
The company’s responsibility can arise since the burn injuries are sustained by the customers and they act as a direct outcome of the breach of the company. This is to ensure that the goods sold are in good condition and does not consist of any kind of defects. Thereafter, the damages that have been suffered has the immediate result of the breach of duty of care and not remote. Such a situation determines all the significant components that are needed for proving the claims of negligence. The customers are therefore eligible to claim for the damages that have been caused for the personal injuries that existed because of the negligence of the company.
According to the Wrongs Act, 1958 the injured individual will not be entitled to make any sort of non-monetary claims that can be implied. The implication will state the customers will not be successful in making any kind of claims for the injuries sustained unless the burn injury is above the 5% as explained in the Medical Association Guidelines (AMA). The alterations that have been made in the Wrongs Act 1958 in relation to the non-monetary claims can only be applied when the injuries caused are severe in nature (Winfield, 2016). The injured or damaged parties are suppose to make any kind of claims within a period of three years from the date of injury sustained. Significant and necessary documents should be filed within a period of ninety days as per the expiry date of that particular period.
2.Restricting the possibility of liability in Tort Law due to the role of caps
Plenty of limitations related to the compensation for the economic and non-economic loss as an outcome from the person injury caused have been laid down in the Wrongs Act 1958. Caps were introduced and determined under the Australian Law Reform Commission as it can be applied on the non-economic damages caused (Green, 2015). This is to make sure that equal importance is provided to the privacy interest and the status of both the injured party and the wrongdoer.
The damages caused acts as a restraint factor for the wrongdoer as it acts a form of punishment for the wrongdoer. It prohibits him from conducting any kind of breach of his duty of care. Nonetheless, the thresholds have been stipulated in the statute have decreased the probability of liability in law of torts. The following are the methods of how the possibilities can be used. Firstly, the wrongdoer must be eligible enough to compensate the injured parties. Secondly, the threshold can reduce the risk management measures of the incorporation. Lastly, the threshold determines a certain amount of negligent acts that does not include the infringing party from facing any kind of consequences related to finance (Luntz et al., 2017).
However, there have been arguments, which were made in favor of the thresholds that were imposed to compensate for the damages caused or the losses suffered by the injured party. When the threshold are awarded to the damaged party, they are made under a certain situations and circumstances where the injured party determines that they were satisfied. The threshold that have been imposed for obtaining the concerned compensation. For example, the injured parties who had suffered or been through 30% of the injuries will only be entitled to the monetary compensation.
The imposition of thresholds have reduced the likeliness of making any kind of false claims that included the necessary expenditures linked to the injury that was suffered by the aggrieved party (Glannon, 2015). Therefore, the injured parties are only entitled to the monetary damages for the personal injuries that remained. The sustainability of the damages were based on the level of harm that the injured individual had faced because of the activities of the wrongdoer.
Under the negligence law, when the aggrieved party has faced the damages are provided with compensation for all the injuries and losses suffered. In such a situation, physical injuries will consist of loss of life, emotional trauma, disfigurement and loss of amenities. The injured person will be entitled to all the general damages that are known as the economic losses. However, the physical injuries and the emotional trauma caused will not be compensated with money. The chief reason for compensating the claimant is to help the aggrieved person for obtaining any kind of alternative source of satisfaction and clear off the expenses.
The legal framework of the several states had enforced a number of demerits as compared to the damages that have been claimed for sustaining the personal injuries. However, even though plenty of states in Australia had stipulated caps on the losses that arose from the medical issues but very less states have introduced caps on the non-pecuniary damages based on the cases linked with the personal injuries. Therefore, the amount of limitations is treated to be different in all the states that varies from a range of $350,000 to $750,000 (Riefa, 2016).
Nonetheless, there are a few existing exceptions that are available to the laws that are linked to the injuries or death when a higher damage cap is allowed or the damage caused is diminished. The injured party will be entitled to compensation for sustaining the non-pecuniary injuries as it happens in Victoria. However, if the individual determines almost 30% of the injury that have been sustained is of highly serious nature. Thus, in the state of Victoria, there is damage cap for the non-pecuniary loss.
3.There have been provisions that were stipulated and deal with the liability of the manufacturer as per the Part 3-5 of the Australian Consumer Law. It also deals with all the safety defects that are engaged with the existing products. The manufacturer’s liability also increases with respect to the damage caused and monetary loss suffered by the consumers. If the losses and damages have been incurred by the customers while making use of the products by the manufacturers.
In this scenario, if any single customer who has suffered from any kind of personal damage because of the defect of the products that have been supplied by the manufacturer. If such is the situation then the manufacturer will be entitled to get the legal claims against the manufacturer for the compensation. If the injured parties are not being able to recognize the original manufacturer then they will have the ability to produce assistance in recognizing the manufacturer for initiating the legal proceedings that are not for the manufacturer regarding the damaged goods. In such a scenario, the suppliers may nit be successful in providing the relevant information related to the manufacturer. Therefore, the injured party can become entitled to attain the compensation from the suppliers for failing to produce the sufficint information regarding the manufacturer of the damaged goods.
According to the facts specified about the appliance of Thermomix appliances, the suffered or injured customers are likely to be entitled to bring the legal proceedings against the existing manufacturer if there is lack of safety defects in the appliances of the kitchen model that basically caused the damaged to the customers. These consumers will receive the compensation for the personal injuries and damage incurred.
Nevertheless, the manufacturers will be entitled to a few specific defenses that have been mentioned under sections 142 and 148 of the Australian Consumer Law. There are few defenses that are made available to the manufacturers under the ACL. Firstly, the manufacturer was not permitted by the technical and scientific department for keeping a check in the default of the goods. Secondly, the manufacturer can contain that the defect in the products that did not exist while the products were supplied to the customers. Thirdly, the there was a loss that was suffered because of the damage caused to the building. Fourthly, the defect found in the products is the outcome due to the conformity with a compulsory standard that is linked with the product.
Thereafter, if there is a compulsory commonwealth standard is engaged with the alleged damaged products then the manufacturer will nit be held liable for the defects in the products instead. The Commonwealth will be held responsible for the loss that has been suffered by the injured person because of which there have been defects in the products. Therefore, as per the Part 3-5 of the ACL, it does not stipulate any kind of penalties or remedies that are related to the breach of the safety of the products. This is because the provisions that have been put to use for assisting the Court in order to establish the breach of liabilities and products of the manufacturers.
Therefore, according to the repots, the complaints of the personal injuries and damages caused to the customers who have purchased the products. This scenario can be implied in such a way that the Thermomix Company have not succeeded to the act as per the provisions. They are set out in such manner that the goods can be recalled for the goods that have been supplied to the customers to which it can be liable for paying the fine of $1.1 million.
The customers who have suffered a few grievous injuries in relation to the damaged goods that have been supplied by the company (Fries, Bergmeister & Spindler, 2018). It will therefore become entitled in making a few monetary compensation till $16,650. The Thermomix appliances company paid this amount (Weinrib, 2014). The defenses were set out and argued by the company for exempting the liabilities as per the Part 4-6 of the ACL. Firstly, the defendant should state and prove that the injury was caused from the factual mistakes (Goldberg & Zipursky, 2015). Secondly, the injuries faced by the customers had an effect on the third parties.
As observed from the scenario, the Thermomix appliances company did not succeed in carrying out the activities as per the legal provisions with respect to the safety standard of the appliances. Section [106(1)] of the ACL stated that the person who was entitled to pay the amount of $1.1 million (Mendelson, 2014). Therefore, in this case, the injured customers who had sustained serious injuries, the company will be entitled to pay the amount of pay $16,500 as a reward of compensation. The available remedy for the injured individuals has been laid down under Section [232] of the ACL. According to the legal principles, the customers who have suffered will attain an extra remedy except the compensation that have been specified under Section [271] of the ACL.
References:
Australian Consumer law, schedule 2 of the Competition and Consumer Act 2010 (Cth)
Donoghue v Stevenson [1932] A.C. 562
Foley, M., & Christensen, M. (2016). Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).
Fries, A., Bergmeister, A. W., & Spindler, M. (2018). Thermomix by Vorwerk–A New Way of Cooking. In Fallstudienkompendium Hidden Champions (pp. 73-90). Springer Gabler, Wiesbaden.
Glannon, J. W. (2015). Examples & Explanations for The Law of Torts. Wolters Kluwer Law & Business.
Goldberg, J. C., & Zipursky, B. C. (2015). The Supreme Court’s Stealth Retrun to the Common Law of Torts. DePaul L. Rev., 65, 433.
Green, L. (2015). Foreseeability in negligence law. Columbia Law Review, 61(8), 1401-1424.
Henderson, J.A., Kysar, D.A. and Pearson, R.N., 2017. The torts process. Wolters Kluwer Law & Business.
Keeton, R. E. (2017). Creative Continuity in the Law of Torts. Harvard Law Review, 463-509.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G., & Harder, S. (2017). Torts: cases and commentary. LexisNexis Butterworths.
Mendelson, D. (2014). The new law of Torts. Oxford University Press.
Riefa, C. (2016). Consumer protection and online auction platforms: Towards a safer legal framework. Routledge.
Weinrib, E. J. (2014). Toward a moral theory of negligence law. In Justice, Rights, and Tort Law (pp. 123-148). Springer, Dordrecht.
Winfield, P. H. (2016). The history of Negligence in the law of Torts. LQ Rev., 42, 184.
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