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Negligence Law - Assignment

   

Added on  2021-06-15

8 Pages2871 Words49 Views
1ContentsSolution.......................................................................................................................................................2Solution 1................................................................................................................................................2Solution 2................................................................................................................................................4Solution 3................................................................................................................................................5Bibliography................................................................................................................................................8

2SolutionVorwerk & Co. KG is a German Company who is indulged in making kitchen appliances whichare electrically proven and are of high –end. The appliances are made in France. InAustralia the appliances are imported by imports the appliances Thermomix in AustraliaPty Ltd. the appliances are sold by Thermomix in Australia Pty Ltd in Australia with thehelp of living persons. These persons are authorized to sell the kitchen appliances to retailand trade customers. Thermomix in Australia Pty Ltd is found to be indulged in several tort wrings, violation of CivilLiability Act 2002 and violation of the provisions of the Australian Consumer Law. Theincident come to light when around 87 incidents come to light by CHOICE when us ofThermomix appliances –18 which resulted in physical injuries to the consumers whichrequire treatment from doctors and nurses. After analysis a report from https://www.choice.com.au/home-andliving/kitchen/all-in-one-kitchen-machines/articles/accc-takes-thermomix-to-federal-court160617, an attempt ismade to evaluate the application of the law of negligence, Civil liability Act 2002 and theAustralian Consumer Law in the present scenario. Solution 1No attempt is made to analyze the quantum of damages while evaluating the law of negligenceon the part of Thermomix in Australia Pty Ltd. The law of negligence is an actionable wrong and is a branch of tort law. The law of negligencesimply states that no person must indulge in any action or omission which results incausing harm to any other person who is closely associated with him. The law of negligence on the part of manufacturer was for the first time highlighted in theleading case of [ CITATION Don3215 \l 1033 ]. The House of Lord, Lord Atkin, primarilysubmitted that every manufacturer owns a duty towards his customers mainly because heis his neighbor. [ CITATION Ham12 \l 1033 ]Duty of care signifies that every defendant has legal responsibility in law under which he isbound to carry out is actions in such a careful manner so that no injury is caused to theplaintiff. This legal duty is forced to be carried out by the defendant only when:[ CITATIONLat1211 \l 1033 ]i.The plaintiff is his neighbor- The rule of neighbor submits that the plaintiff is positionedat such a place that the actions of the defendant impacts the plaintiff directly. There isproximate relationship amid the two are so closely associated with each other that the artsthat are carried by defendant will hamper the plaintiff [ CITATION Baa70 \l 1033 ].

3ii.The plaintiff is reasonably foreseeable – The duty is against that plaintiff whom thedefendant can foresee reasonably. If the plaintiff is placed remotely and is not able to beforeseen reasonably by the defendant then there is now duty of care [ CITATION Hal651 \l1033 ].Once both these requirements are met, the defendant is under constant duty to provide protectionto the plaintiff from his acts. The duty of care is imposed on every kind of defendant,whether it is manufacture, importer or supplier and is held in [ CITATION Cor121 \l 1033 ].(Renae Hamilton 2012)To consider that the defendant is negligent in his actions, it is necessary that the duty of care thatevery defendant must comply with is not met by him causing violation of the duty ofcare. The duty of care is only considered to be breached when the level of care or thestandard of care that is expected from the defendant fall short of what a reasonableprudent man acts in the similar situation and is held in [ CITATION Wyo803 \l 1033 ]. Thelevel of care is directly proportionate to the level of risk, that is, higher the risk higher thecared and vice versa. [ CITATION Vin02 \l 1033 ]When the duty of care is violated by the defendant then it is very necessary that some kind ofharm must be caused to the plaintiff. The damage so caused should not be remote andmust have been caused because of the acts of the defendant.So, when all the three elements are met, that is, duty , breach and damage, then, the defendant isnegligent. The rule of negligence is now applied to the factual situation of Thermomix in Australia PtyLtd. Thermomix in Australia Pty Ltd is under duty of care as it is an imported and duty of care isimposed with the duty to provide products that does not harm its customers under[ CITATION Don3215 \l 1033 ]The duty of care is against all those customers who are using his product as such customers areresemble foreseeable and are proximate with Thermomix in Australia Pty Ltd,But, this duty of care is not met by Thermomix in Australia Pty Ltd because the product TM31which is supplied by the company is found to be defective. It has a defect which has thecapacity of injuring the customer to the extent of burning. The duty is considered not tobe complying with because according to the statuary provisos whenever a defect is foundto be in any product it is necessary that the same must be notifying in 48 hours. Thisstatuary provision is not met by the company. Because of the use of Thermomix appliances –18 there are physical injuries that are caused tothe consumers which require treatment from doctors and nurses. Thus damage is caused

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