Thermomix - FEDERAL COURT OF AUSTRALIA
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Added on 2021-06-16
Thermomix - FEDERAL COURT OF AUSTRALIA
Added on 2021-06-16
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1ContentsSolution.......................................................................................................................................................2Answer 1.....................................................................................................................................................2Negligence...............................................................................................................................................2Duty of care.........................................................................................................................................2The Civil Liability Act 2002 – New South Wales...................................................................................5Answer 2....................................................................................................................................................6Answer 3.....................................................................................................................................................7Bibliography...............................................................................................................................................10
2Solution A company by the name Thermomix is into selling high-end electrically powered kitchenappliances. These high-end electrically powered kitchen appliances aremanufactured in France by Vorwerk& Co. KG, which is a German company andthe products of Vorwerk& Co. KG are thus imported into Australia byThermomix in Australia Pty Ltd. Thermomix in Australia Pty Ltd is the companywhich in turn sells the appliances in Australia through consultants who are incontract with Thermomix in Australia Pty Ltd to sell the products in market.As per article provided the ACCC had taken Thermomix in Australia Pty Ltd to the Court:https://www.choice.com.au/home-andliving/kitchen/all-in-one-kitchen-machines/articles/accc-takes-thermomix-to-federal-court160617.Assuming the people is injured as per the report.Answer 1It is very relevant to understand the law of negligence in order to understand whetherThermomix in Australia Pty Ltd is actually negligent in its action so as to justify the claims ofACCC.Negligence The law of Negligence is developed in order to safeguard a customer from the loss that thecustomer suffers due to the careless act of the manufacturer or the seller. Thethree basic elements to prove negligence involves duty of care, violation of theduty and the resultant damages. [ CITATION Lat1210 \l 1033 ]Duty of careA duty of care is imposed upon the manufacturer of the product to provide such a product to theconsumers so that no damage is caused to the consumer due to use of suchproduct. The main case law that lead to the development of law of negligence is[ CITATION Don3214 \l 1033 ].
3In order to prove negligence on part of the manufacturer, supplier or importer, the followingingredients must be satisfied. It is then only the consumer can claim damages fornegligence on the part of the manufacture.Reasonable forseeability Any defendant is duty bound under the law of negligence towards those plaintiffs which arereasonably foreseeable by the defendant and is held in [ CITATION Hal65 \l 1033 ]ProximityThe duty of the manufacturer etc. is towards every neighbor who had suffered damage from theproduct of the manufacturer. A neighbor means any person who is in proximitywith the manufacturer or seller who might get damaged by the act of themanufacturer etc. A neighbor can be any person who is likely to suffer loss by theact of the manufacturer and is held in [ CITATION Cap902 \l 1033 ]. Hence theconsumer is neighbor of manufacturer as he is likely to suffer from the product ofthe manufacturer and is held in [ CITATION Sut85 \l 1033 ].Thus, it can be analyzed that the every manufacturer or seller of the product has the duty of caretowards the consumer who in turn use their products. It is necessary that a dutycan only be imposed upon the manufacturer when the plaintiff against the duty isto be applied can be reasonable foreseeable by the manufacture and the plaintiffmoist also be in proximate relationship with the manufacture. It is now important to understand whether there is any duty that is imposed upon Thermomix inAustralia Pty Ltd.Thermomix is into selling of TM31, a $2000 a kitchen appliance, so, it is the duty of Thermomixthat the said products sold by it does not cause damage to any customer who usesit. Any damage caused by the use of the product by the customer is reasonablyforeseeable as there is proximate relation between the seller and the consumer.Thus, the duty of care is established on the part of Thermomix.
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