Remedies in Australian Private Law - PDF

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Contents
Solution...................................................................................................................... 2
Introduction............................................................................................................. 2
Answer 1................................................................................................................. 2
Answer 2................................................................................................................. 5
Answer 3................................................................................................................. 5
Reference Lists........................................................................................................... 8

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Solution
Introduction
An Australian company named Thermomix in Australia Pty Ltd imports kitchen appliances from
a German company named Vorwerk & Co. KG. The German company is the manufacturer of
kitchen appliances and it exports it to Thermomix in Australia Pty Ltd and Thermomix in
Australia Pty Ltd in turn sells their imported goods within Australia through authorized persons
deputed by them for selling the same to trade and retail customers.
Thus, Thermomix in Australia Pty Ltd are the imports and sellers of the goods. Now, as per
section 7 of the Australia Consumer Law, a manufacture is a person who imports goods in
Australia when the manufacture does not have place in Australia, puts goods together, holds
himself to be the manufacture of the goods or puts its name on the goods1.
Now, Vorwerk & Co. KG does not have a place of business in Australia and Thermomix in
Australia Pty Ltd imports goods in Australia, thus, Thermomix in Australia Pty Ltd must be
considered as a manufacture and any action under law of negligence, Civil liability Act or the
Australian Consumer law can be brought against Thermomix in Australia Pty Ltd as it is a deem
manufacture.
The appliances sold by the Thermomix in Australia Pty Ltd are not proper and thus as reported
by Choice there were around 87 incidences which clarifies that the appliances are not proper and
18 persons were injured physically which required medical treatment. Hence due to the above
said facts there is breach of norms of the ACL and Civil Liability Law 2002 etc.
As per the content of the article published
byhttps://www.choice.com.au/home-andliving/kitchen/all-in-one-kitchen-machines/articles/accc-
takes-thermomix-to-federal-court160617, the report had been prepared which analyze the various
laws that had been violated.
Answer 1
As per law of negligence no person should perform the acts in such manner that his acts would
harm any third person. Every defendant has a duty that his acts must be performed in such a
manner so that his acts must not harm anybody.
The law of negligence holds the manufacturer (including retailers) liable when damages are
caused to the actual consumers because of the use of the defective product of the manufacture.
The three ingredients of negligence if established hold the manufacture. The same are2:
1 Paul Latimer. 2011. Australian Consumer Law 2012. CCH Australia Limited.
2 Andy Gibson and Douglas Fraser. 2013. Business Law 2014. Pearson Higher Education AU.

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i. Duty of care on the part of manufacture - The first ingredient to hold a manufacture
negligent is that there must be duty of care imposed upon the manufacture. The duty of
care implies that the manufacture must act in a proper manner so that no injury from his
acts should be caused to any third person who is in proximity to the manufacture and who
can be reasonably foreseeable by the manufacture. In Donoghue v Stevenson3 the duty of
care can be imposed when there are presence of two elements:
a. When the injured consumer is neighbor of the manufacture. The consumer is in
such a position that the acts of the manufacture will affect the consumer. The parties are
in proximity with each other so that the manufacture will have impact the consumer and
is held in Baar v Snowy Mountains Hydro-Electric Authority4.
b. When the consumer is reasonably foreseeable to the manufacture. It is necessary
that the consumer must be reasonably foreseeable. In Haley v London Electricity Board5
it was held that every consumer is reasonably foreseeable by the manufacture of the
product.
In Coregas Pty Limited v Penford Australia Pty Limited (2012) it was rightly held that all
the manufacturer, importer, supplier and seller all owe duty of care towards their
customers and thus must act in such manner so that the duty is not violated in any of the
situations.
ii. Breach of Duty of care – The second step towards the negligence is Breach of duty of
care. A person is said to had breached the duty when he does not take care and thus
performs the acts without even taking the care that he should had adopted. Also even if
the care was taken by him the level of care is to be seen as to whether the care taken by
him was reasonable as per the situation. The level of care can be analyzed by taking into
account the level of care a reasonable prudent person would had taken in the like
situation. If the level of care of manufacturer matches with same then he cannot be said to
have breached the duty of care. The standard of care depends upon the risk involved and
is held in the leading case of Wyong Shire Council v Shirt6.7
iii. Damages because of the breach of duty of care - The third step towards the negligence is
the injury caused to the injured by the act of the manufacture. In case the injury is caused
to the injured due to breach of duty of care on the part of the manufacturer then the
manufacturer is liable, but the injury must be caused due to the breach of duty of care of
the manufacturer. In case the same is not the case then the manufacture cannot be held
3 Donoghue v Stevenson (1932).
4 Baar v Snowy Mountains Hydro-Electric Authority (1970).
5 Haley v London Electricity Board (1965).
6 Wyong Shire Council v Shirt (1980).
7 James Plunkett. 2018. The Duty of Care in Negligence, Bloomsbury Publishing.