1COMMERCIAL LAW Table of Contents Answer 1....................................................................................................................................2 Introduction............................................................................................................................2 Grounds..................................................................................................................................2 Breach of Duty.......................................................................................................................4 Damages and Compensation..................................................................................................5 Conclusion..............................................................................................................................5
5COMMERCIAL LAW theLiebeckjudgment in the given scenario it can be said that Kit was also partially responsible for his injury. As a reasonable person he was also required to be acting in a cautious way while drinking from the bottle. Following theBolton v Stone[1951] judgment in the given scenario it is required to establish whether the risk of damage was foreseeable by any reasonable person on the position of the defendant and whether they would be taking any necessary steps for refraining from the action for the safety purpose. As there was small plastic ball which is reasonable to believe would come loose and some people might choke on it while drinking from the bottle therefore it can be said that the manufacturers have a duty of care towards the consumers. As there was no necessary steps taken by the manufacturers to warn the consumers of the potential harm that might arise from the bottle, they would be considered as breaching the duty of care they owe. Damages and Compensation In the case, because of the incident Kit is seen as suffering from clinical depression and has also missed his University studies. He can claim for the compensation equivalent to the damages he has suffered. Conclusion Thus in conclusion it can be stated that Kit can have a successful negligence case against the manufacturers of the bottle. Answer 2 Introduction In the given scenario it can be observed that from the tax refund cheque that Max received, he wants to buy some new appliances for his wife, Anna. The first thing he buys is
6COMMERCIAL LAW coffee machine for $420. Next he buys a 7kg washing machine for which the sales assistant, Bernie, assures him that it would be big enough for washing Queens Sized continental quilt. The final items purchased by Bernie are heated curling tongs for Anna to use for curling her hair. All these products are found by Bernie to be defective after a few days. Grounds Under the provisions of schedule 2 of theCompetition and Consumer Act2010the regulations for the safeguard of the customers is mentioned . This schedule is known as the Australian Consumer Law (ACL).As per the provisions of section 18 of theAustralian Consumer Law,an individual participating in any trade or commerce is not eligible for engaging in any form of misleading behaviours. This section had been debated in the verdict ofAustralian Competition and Consumer Commission v TPG Internet Pty Ltd[2013]. As per the provisions of section 13 of theAustralian Consumer Law, the reference for the loss or damage would also include the reference of injury including the reference to the amount of loss or damage that had been suffered.The provisions of this section has been discussed in the judgment ofACCC v Sampson[2011]. As per the provisions of section 29 of theAustralian Consumer Law,an individual participating in any trade or commerce is not eligible for engaging in any form of misleading or false representation about any goods or services. The provisions of this section have been discussed in the judgment ofACCC v Colgate-Palmolive Pty Ltd (No 2)[2016]. As per the provisions of section 58 of theAustralian Consumer Law,an individual participating in any trade or commerce is liable for guarantee of the supply the consumer with the spare parts of the goods and would further ensure that there would be reasonable actions taken for the repair of the goods within a reasonable period of time.
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7COMMERCIAL LAW As per the provisions of section 129 of theAustralian Consumer Law,any minister responsible is required to publish a written notice about the safety related statement in relation to any product. Breach Coffee Machine The first problem that Bernie faces is with the coffee machine. The coffee machine is observed as stopping after 6 coffees. When Bernie tries to repair the machine Betterex is seen as informing him that there is no spare part available and they can provide him with a replacement machine. Applying the provisions of section 58 of theAustralian Consumer Law,in the given scenario it can be stated as the coffee machine broke down after making 6 cups of coffee; therefore, Betterexis liable for guarantee of the supply the consumer with the spare parts of the goods and would further ensure that there would be reasonable actions taken for the repair of the goods within a reasonable period of time. In this, scenario, it however is observed that they do not have any spare parts available. Hence they are in breach of this section. Washing Machine In the given scenario it has also been observed that while washing the continental quilts the machine ripped a hole in one of them. When Max states the problem to Betterex, they deny it to be the fault of the machine and state the machine had not been designed for a heavy load like quilts. When confronted about the salesman of Betterex saying that the machine would be okay to wash quilts the company denies such affirmation. Following the judgment inACCC v Colgate-Palmolive Pty Ltd (No 2)it can be seen in the case the salesman representing Betterex has engaged in a misleading and false
8COMMERCIAL LAW statement under section 18 of the ACL. This misrepresentation has resulted in Max buying the washing machine, which in turn destroyed his quilt. Therefore in this case Betterex is in breach of section 18 of the Act. Curling Tong In furtherance to this, it is also observed that because of overheating issues in the curling tong it had burnt Anna’s hair and she had to cut it short. Following the judgment inACCC v Sampson[2011] Max and Anna did not only suffer from monetary damage but also damage of injury. Following the provision in section 129 of theAustralian Consumer Law,a safety related statement in relation to the probable hazard caused by the curling tongs is required to be published in a written notice. Damages As per the provisions of section 13 of theAustralian Consumer Law, the reference for the loss or damage would also include the reference of injury including the reference to the amount of loss or damage that had been suffered. Therefore Max and Anna can claim not only for the damages they suffered in monetary terms but also for the injuries Anna suffered because of the overheating curling tong. As per the provisions of section 29 of theAustralian Consumer Law,an individual participating in any trade or commerce is not eligible for engaging in any form of misleading or false representation about any goods or services. For the breach of this section Betterex might be awarded with a pecuniary penalty for the loss of damage by Max. As per the provisions of section 58 of theAustralian Consumer Law,an individual participating in any trade or commerce is liable for guarantee of the supply the consumer with
9COMMERCIAL LAW the spare parts of the goods and would further ensure that there would be reasonable actions taken for the repair of the goods within a reasonable period of time. For the breach of this section Betterex would be liable for paying compensation. Asper theprovisionsof section18 of theAustralian ConsumerLaw,an individual participating in any trade or commerce is not eligible for engaging in any form of misleading behaviours. For the breach of this section Betterex would be liable for paying pecuniary penalty for the loss of damage by Max. Conclusion Therefore it can be concluded that Max would be eligible to claim compensation under the Australian Consumer Law.
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10COMMERCIAL LAW Reference ACCC v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528 ACCC v Sampson [2011] FCA 1165 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54. 88 ALJR 176 Australian Consumer Law Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078 Competition and Consumer Act 2010 Donoghue v Stevenson[1932] AC 562 Liebeck v. McDonald's Restaurants1994 Extra LEXIS 23