Consumer Protection Laws and Law of Torts: Legal Analysis Report

This report delves into the intricacies of Australian Consumer Law (ACL) and the Law of Torts, providing a detailed analysis of consumer protection. The report examines a scenario involving an Indigenous cafe owner, Liddy Bindu, facing an unfair lease agreement, highlighting the concept of unconscionable conduct under the ACL, specifically Section 21(1). It discusses the landlord's actions, the potential remedies available to Liddy, and the penalties applicable to the landlord, Bob Shifty. The second part of the report addresses a case where Liddy's daughter, Lottie, is injured by a dishwashing liquid, focusing on the application of consumer product safety laws and the legal framework surrounding false representations of goods and services under Section 29 of the ACL. The report analyzes the Avon Ltd's liability, the remedies available to Lottie, and the potential fines. The report emphasizes the importance of compliance with consumer protection laws for both businesses and consumers, ensuring fair trading practices and protecting individual rights.

CONSUMER PROTECTION
LAWS AND LAW OF
TORTS

Table of Contents
INTRODUCTION...........................................................................................................................1
QUESTION 1..................................................................................................................................1
(A)................................................................................................................................................1
(B)................................................................................................................................................3
QUESTION 2..................................................................................................................................6
REFERENCES..............................................................................................................................10

INTRODUCTION
One law for all Australian consumers and businesses are there, so it doesn’t matter where
person is living in this country and it brings rights and obligation of customers as a trader.
Australian Consumer Law is national law for doing fair trading and consumer protection. It had
framed many rules and regulations to protect the rights of every individual from any prohibited
activity. Nowadays, it is essential for people to know about these laws so that they can defend
their rights 1. Moreover, if any individual is doing business, then it is crucial for them to seek
with all these rules and regulations in order to protect their rights. In this report, detail discussion
on Australian Consumer Law has been done and what remedies will available to person if they
breaching any law under and framework. Further, different case studies have been discussed
while applying rules and regulation of ACL.
QUESTION 1
(A)
Issue: In given case scenario, Liddy Bindu is living in remote Indigenous community and
taken is shop in Yarrabah on lease. She running a Native Food and herbs Café for local
community people. Now, Liddy is 70 years old, suffering from many health issues such as; poor
eyesight, speaking aboriginal languages. Her landlord was Bob Shifty when he came to know
about that Liddy is facing so many health issues, then he presents new lease contract for ‘Native
Herbs & Tea Café. He was forcing her to sign the document otherwise he will rent the shop to
another tenant. So, Liddy sign the document without looking over to that deed.
Rule: As per provision of provision of Australian Consumer law, it provides legal
framework regarding consumer policy and having overreaching objectives which emphasis
consumer confident, effective competition and fair trading. ACL includes protection of
consumers against unfair contract term. These contracts are often prepared by businesses and
presented to customers 2. There is some standard form of contract which is promoting smooth
functioning of economy by avoiding additional cost. It depends upon parties that what type of
contract they are forming.
1 Adekile, O. M., 2013. Compensating victims of personal injury in tort: The Nigerian
experience so far. Acta Universitatis Danubius. Juridica. 9(2).
2 Ayeh, J. K., Au, N. and Law, R., 2013. Predicting the intention to use consumer-
generated media for travel planning. Tourism Management. 35. pp.132-143.
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According to section 21(1) of unconscionable conduct, it states that a person must not be
in trade or commerce in connection with:
(a) Possible supply of products or services to person (it does not include public
company), or
(b) Acquisition or possible acquisition regarding purchase of goods or services from a
person (not from public company).
Engage in conduct that is, in all circumstances are unconscionable.
This section prohibits unconscionable conduct which are executed in connection with
commercial supply of goods or services to both domestic or consumer transaction and these
would be frequently applied in landlord-tenant disputes. These legislations are provided where
person unfair prohibited from particular terms and conditions. So, protection is allowed review to
individual only as per provision rather than reviewing overall contract.
While forming any contract it is responsibility of landlord to specify all terms and
condition, free consent and should not force any person to come into agreement3. All these
elements must be included while signing any document so that defendant get right to frame
contract with free consent.
Further remedies are also available if any person breaches Consumer protection
provision. With the exception of section 18, misleading or unconscionable conduct (section 20-
22), contravening unfair practices under section 29 are comes under criminal offence; Section
151. These prosecutions for an offence instituted by Australian Competition and Consumer
Commission (ACCC).
Civil penalties (section 224) – Penalties is up to $1.1 million for a business and for
individual $2,20,000 it may be imposed if they are breaching section 20-22 and 29. These
penalties are not applying when individual or corporations breaching provision under section 18.
Along with this these are classified under civil not in criminal breach.
Application: In given case, Bod Shifty forces to Liddy Bindu to sign the document
without look upon it. As it causing a misrepresentation of facts. As per provision of ACL, it is
responsibility of plaintiff to describe all terms and conditions which are specify in law 4. If they
are representing unlawful terms or conditions, then they are liable for compensation loss amount
3 Bibas, S., 2011. Regulating the Plea-Bargaining Market: From Caveat Emptor to
Consumer Protection.
2

to injured person. Along with this, it also a responsibility of owner to give some time to Liddy to
read the documents so that she came to know about whether it contain same terms and conditions
or not as per previous contract.
According to ACL, Bob had breached this law because as per previous lease all terms and
conditions are not same. For example, rental payable is different from prior lease and these are
majorly in the favour of Bob. So, Liddy is having right to get entitle compensation amount from
owner, if she had suffered from any loss while signing this document. It is also responsibility of
Bob to give some time to Liddy because he cannot force her to sign document and through this
fraud has been done by him by representing facts wrongfully. Apart from this, unfair contract has
been done which is causing an imbalance significant to parties’ rights and obligation.
Further, remedies will be available to Liddy because Bob Shifty forces her to sign the
document on immediate basis other he will transfer lease to another tenant. Penalty will be
imposed on Bob because he had done fraud with Liddy. However, this penalty amount is up to
$2,20,000 while breaching provision under section 20-22 5.
Conclusion: From above case, it is concluded that owner of café Bob did not represent
the facts in faithful while making new lease document. So, he is liable for to compensate entitle
amount to Liddy, if any injury or loss has been occurred by owner. Further, some penalty amount
is imposed on him. Further, they owner and tenant should comply with all rules and regulations
which are framed by government so that both can protect their rights.
(B)
Issue: In given case study, Liddy was worried about safety and cleanliness of crockery in
which she is using to serve food and drinks. One day she brought a pack of dishwashing liquid
‘Kleen-up” and start using in café. This product was distributed by Avon Ltd which was located
in Sydney and selling these good by door-to-door. So on one day when this dishwashing liquid
was used by Liddy’s daughter Lottie, then she got an injury and serving from skin rash on her
fingers and hands.
4 Bennett, L., 2011. Judges, child trespassers and occupiers' liability. International Journal
of law in the Built Environment. 3(2). pp.126-145.
5 Bismark, M. M. and et. al., 2012. Legal disputes over informed consent for cosmetic
procedures: a descriptive study of negligence claims and complaints in Australia. Journal
of Plastic, Reconstructive & Aesthetic Surgery. 65(11). pp.1506-1512.
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Rule: The consumer product safety laws are applied to goods and product which are
related with services. any individual who are trade or commerce or supplies consumer goods
which is related with services are essential to comply with ACL consumer product safety
requirements 6. This means that all suppliers which includes; retailers, manufacturers,
wholesalers so on must be up-to-date with these rules and regulation and comply with standards.
According to section 29 of ACL, it clearly states about specific false representation of
goods and services. A person or corporation is not allowed to make false representation of goods
or services which are offering by them. If they found with such kind of activities, then they may
be sued for injured by anyone. Along with this, it may also prosecute under criminal offence.
This section is applied to business or person who are in ‘trade or commerce’. For example, this
section will not apply on private sale of property by an individual and the person who does not
come under consumer which is defined in section 3. So, ultimately it applies to business
consumer as well as suppliers.
There are different types of false representation which can be conducted by person or
individual 7. They cover: quality, standard, value, grade, style, composition, model and so on.
Section 29(1)(a), it is related with if anyone falsely represents the goods which are of
particular standard, quality, style, composition or model or having a particular history; for
example, Hartnell v Sharp Corporation of Australia Pty Ltd (1975) 5 ALR 493, in this
decision of court were held that there was an “extraordinary wrong misrepresentation and wicked
with a misuse of trademark”. So Sharpe were entitled for fined with $10,000 for 10 offences
which is equal to $1,00,000.
Section 29(b), provides legal framework if there is deceptively representation of services
which are of particular standard, value, grade or quality.
Section 29(c), new products or services are falsely represented. The meaning of ‘new’
depends upon the circumstances where organisation or representing goods. It may also mean that
good never be used before.
Section 29(g), the goods which are represented are having any kind of sponsorship,
characteristics, accessories, performance, uses or benefits which do not have.
6 Colonna, K., 2012. Autonomous cars and tort liability. Case W. Res. JL Tech. & Internet.
4. p.81.
7 de Jonge, A., 2011. Transnational corporations and international law: bringing TNCs out
of the accountability vacuum. Critical perspectives on international business. 7(1).
pp.66-89.
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Section 29(i), making false representation or misleading statement in respect of price of
goods and services.
Section 29(j), facilities are provided for repair of goods or sparing parts of products are
provided as false or misleading of representation.
Section 29(k), this section deals with false representation of goods is concerned with
place of origin of goods. In this offence would be considered if manufactured of product is done
in foreign country and it was labelled as “Made in Australia”.
Section 29(m), making false representation of goods which is concerning with the
exclusion or effect from any condition, right, guarantee or remedy. As it excludes the right of
consumers which is related with unsatisfactory products or services.
Apart from this, remedies have been provided to person if anyone found with
representing a false goods or services8. $2,20,000 will be imposed on person if they breach
provision under section 29. Further fine will be imposes under section 151, only when someone
breach the section 29 for false or misleading representation in context of goods or services. For
an individual fine will be $2,20,000 for per crime or for body corporate $1,10,000.
But there are some civil remedies which will be available to injured person and these
covered; injunction (section 232-235), section 236 is damages, compensation order under section
237, non-punitive order, disqualification order, public warning notice in context of safety
warnings about consumer goods.
Application: As per provision of Trade Practices Act (Cth), it clearly states that person is
having right sued against those people are providing false or misleading or representing goods or
services. Through this they got injured. So, it is essential for them to deal comply with these
rules and regulation otherwise they are liable for compensating amount to injured person.
With references to given case scenario, if Lottie take action against Avon Ltd because she
got injured while using their dishwashing liquid, then she is having right to suit against them.
This is because, seller of Avon Ltd had sold goods which are causing damage to customers. As
this product was selling at reasonable price with a leaflet which states that “there is one new
product which is fantastic, very soft and it mild on hands which does need any gloves and your
dishes love this!”.
8 ? Enneking, L. F., 2012. Foreign Direct Liability and Beyond-Exploring the Role of Tort
Law in Promoting International Corporate Social Responsibility and Accountability.
5

Avon company is representing goods falsely to make his sale of products. Further, fine
will be imposed organisation i.e. of $1,10,000. Along with this some remedies will be available
to Lottie i.e. statutory regimes for commencing an action against manufactures for providing
compensation. In part 3-5, it also provides the guidance for courts where appropriate remedies
will be available to injured person. At last, Lottie will get succeed in suing the case against Avon
Ltd.
In manufacturer liability, person is strictly liable for defective goods and they are also
held liable under provision of other consumer protection 9. Manufacture is liable if any loss or
damaged is suffered by customer regarding safety use of products.
Case law ACCC v Excite Mobile Pty Ltd [2013] FCA 350, in this federal court found
that Excite mobile engaging in false and unconscionable and misleading conduct in the provision
of mobile phone services to consumers across Australia and they acted unconsciously and undue
coercion when they are attempting to pay payment for their mobile phone services. from this
large number of customers are affected by this and which also includes remote indigenous
communities.
Conclusion: From above case it can be comprehended that seller is liable for providing
compensating amount to injured person if they are representing goods falsely. So, injured person
is having authority to suit against them in order to get some compensation amount. Further, some
of the remedies will be provided by court against damaged person.
QUESTION 2
Issue: In given situation, Mrs Lena was attending Wondertown Junior Cricket Club
(WJCC) for the first time and she is moving from Germany, to watch her grandson match. After
3 glasses of wine with dinner, she need to go in bathroom and searching for a ladies’ toilets. In
that club, Pete was the person who is responsible for keeping toilets clean and keep thing to be
neat. One day, Pete was installing water-saving sprinklers and then he received an important call
and had leave the club for the day. Now, he had already swapped with some lightbulbs outside
the storage room. These outdoor were set automatically on at 5 pm so he decided not to test
lights after making any changes in bulbs. At same point of time he put sign of ‘DANGER’ board
because he found that some sprinkler was there in that path.
9 Garoupa, N. and Liguerre, C., 2011. The evolution of the common law and efficiency.
Ga. J. Int'l & Comp. L. 40. p.307.
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Lena went into the path without seen any sign and fall down away. Due to this she
tripped on sprinkler hose and landed heavily on her right arm and got fractured on her elbow and
wrist. Due to this she did not attend crossword challenge and on date she had lost $40,000.
Rule: A trot is considered as civil wrong where innocent party is entitled to claim
damages in terms of money. In this where an individual is suffering from an injury due to
carelessness of first person 10. A person who is committed an offence due to their negligence are
entitled to come under tort. Thus, injured part who may also called as plaintiff may sue
compensation. For getting compensation amount injured person have to prove following things;
Duty of care – It is a legal obligation of person to avoid causing harm to other party
where it is reasonably foreseeable and if care is not taken properly. For this, claimant is
responsible to show that duty of care is imposed by law where defendant had breached this. For
establishing duty of care, plaintiff had to satisfy the requirements which are specified in Civil
Liability Act 2003.
Duty of care breached – In this breach of duty is owed by one person to another. Person
will be held liable if they breach duty by not performing in sensible manner towards another
person. To determine breach of duty court, have to considered some following factors; there
should be foreseeability of risk and action of defendant are including number of factors.
Breach of duty causing damage – In some cases it seems that it is causing injury to
person 11. For this plaintiff has to prove that the injury which has been made other person due to
their negligence are causing serious harm to them.
Remoteness of damage – This provides that defendant will held liable when loss is of
foreseeable kind. If the loss is of foreseeable type, then defendant is liable for paying amount up
to full extend of loss even if loss is greater than expected.
Case law, McLean v Nominal Defendant [2012] QDC 73, in this McGill DCJ were
declined to make finding against plaintiff for contributory negligence which has been due to
intoxication under section 47 of Civil Liability Act 2003. However, it was also noted that
defendant had made pleaded for contributory negligence under the common law, which would
reduce the damages of plaintiff by 20%.
10 Koopman, C., Mitchell, M. and Thierer, A., 2014. The sharing economy and consumer
protection regulation: The case for policy change. J. Bus. Entrepreneurship & L. 8. p.529.
11 Lo, V. I., 2012. Before competition and beyond complacency-the internationalisation of
legal education in Australia. Legal Educ. Rev. 22. p.3.
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Application: According to provision of Civil Liability Act 2003, this act applies when
civil claim for causing damage to person. Claim is based on liability if personal injury or
economic loss or any damage of property is there. This liability can be based on tort which also
including breach of statutory duty. But this act is not applied to any civil claim for personal
injury and includes; damage should be defined under WorkCover Queensland Act 1996,
grievance is resulting from smoking or other exposure by tobacco.
In given case scenario, Mrs Lean had suffered from injury due to negligence of Pete.
According to tort of negligence act, Lena is having authority to sue against WJCC because due to
that incident, she had also suffered from $40,000 from online gambling. There are some
remedies which will available to her i.e. she is having authority to get compensation amount
from WJCC club because her hand was get fractured and due to this she did not played the game.
Further, club is responsible for to provide all treatment facilities or compensate amount so that
she will get recover as soon as possible 12.
Case law, Donoghue v Stevenson [1932] AC 562. Fact of this case was, Mrs Donoghue
went into a café with his friend and they order a ginger beer and an ice cream. Afterwards, she
poured half of the content of bottle with ice cream. After taking all these things she had suffered
from personal injury and for that she claimed against the manufacturer of ginger beer. In this
case, decision of court was held that the claim which was made by her was successful. Moreover,
with the help of this case, court had established modern law of negligence.
Case law, Chapman v Hearse (1961) 106 CLR 112. Fact of this case was that on a dark
and wet night Chapman drove with his motor vehicle into the back of Emery’s car. Accident had
taken place and Chapman was lying on the side of road. Dr Cherry assists Chapman and pick the
motor vehicle. Cherry is the person who treating another person name called chapman, a vehicle
had been driven by Hearse and hit Cherry also killed him.
The case was sued by Cherry against Hearse. Hearse joined Chapman as third party on
the grounds that he had contributed in accident. On the basis if this, court found that Hearse held
for negligent but Chapman was also negligent therefore one quarter of damages will be payable
by Hearse to Cherry. Further both person had made appeal on that.
Finally, the decision of court was that Cherry was a rescuer and she is not liable for guilty
in making contributing negligence. Further there was not sufficient evidence which prove that
12 Richardson, M., 2012. Why policy matters: Google Inc v Australian Competition and
Consumer Commission. Sydney L. Rev. 34. p.587.
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negligent has been done by Cherry while she is helping Chapman. So, duty of care was imposed
on Chapman which do not place himself in that circumstance where rescuer could be injured at
the time assisting him. Moreover, death of Cherry was caused the part of Chapman negligence as
he would not be on road. Cherry. This is done because Cherry was treating Chapman injury.
From above case, impact on that person who are negligent may also owe a duty of care
and comes under to rescue or supporting them 13. It is a responsible for rescuer should be
compensated if they are doing help of others and should not be punished by taking such kind of
risk as well as not liable for compensating loss amount to injured person.
Conclusion: From above case it is concluded that if any cause has been incurred by other
person due to their negligence, then they are liable for compensating loss amount to injured
person. Further, if Lena sue case against WJCC then she is liable for recovering loss amount
from that injury which was cause by groundsman.
13 Rabin, R. L., 2011. Reflections on Tort and the Administrative State. DePaul L. Rev. 61.
p.239.
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REFERENCES
Books and journals
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