11 Jul WHAT ROLE DO THE RELEVANT CAPS ON PERSONAL INJURIES DAMAGES PLAY IN LIMITING THE EXTENT OF POSSIBLE TORT OF NEGLIGENCE
Note this background: The Thermomix is the brand name for a type of high-end electrically powered kitchen appliance. The appliances are made in France by a German company Vorwerk & Co. KG, and exclusively imported to Australia by the company Thermomix in Australia Pty Ltd. (“TIA”). TIA sells the appliance in Australia only through natural persons (referred to as “consultants”) who have a contractual right from TIA to sell the appliance to retail and trade customers.
Read: Paul Latimer, Australian Business Law (35th edition) ¶4-010 to ¶4-220; and ¶7-215.
Read: ACC taking Thermomix to Federal Court: https://www.choice.com.au/home-and-living/kitchen/all-in-one-kitchen-machines/articles/accc-takes-thermomix-to-federal-court-160617. This is also available for download from the Moodle page for this course.
Answer all 3 questions
Consider only the position of the people injured mentioned in the above-mentioned report published by Choice.
1.For those injured, explain the basis of possible liability in the tort of negligence that any manufacturer or distributor of the Thermomix appliance might have to those users. Leave aside the question of the amount of damages, but in your answer refer to common law legal principles and (where relevant) to any relevant civil liability statute provisions that apply in your State. (15 marks)
2.What role do the relevant caps on personal injuries damages play in limiting the extent of possible tort of negligence liability that might be owed to the injured users?In your answer, refer to the relevant civil liability statute provisions that apply in your State. (5 marks)
3.Do the injured users have possible rights under Part 3-5 of the Australian Consumer Law (ACL) against any manufacturer or distributor of the Thermomix appliance? If so, on what grounds could they bring such an ACL action and what defences might a sued manufacturer or distributor have? Leave aside any question of the amount of damages under the ACL. (15 marks)
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