Semester 2, 2018
Santosh Pandey: 30353012
Lecturer: John O’ShannassyDue date: September 21, 2018
1. Issue: The issue in this case is related with the rights that Ann may have against the salami manufacturer under ” Ss 54 and 138, ACL.”
Rule: The Australian Consumer Law replaced the implied conditions and warranties that were provided by the Trade Practices Act, 1974. Therefore, now the ACL provides for the consumer guarantee provisions. These guarantees are the set of automatic rights that have been provided to the consumers and in certain cases to the businesses also regarding any goods and services purchase in Australia. These guarantees are also applicable in case of imported goods and services.
Another question that arises in this regard is that who is the consumer? It needs to be noted that the guarantees provided by the act applicable to all the consumers. According to the ACL, consumer can be described as a person or business that is was just woods or services for less than $40,000 or the goods or services for more than $40,000 but when such goods or services are generally quiet for domestic purpose. At the same time, any person who has purchase the goods for the purpose of resupply and the goods ought to use the goods for transforming them into the other products, is not a consumer. The guarantees provided by the ACL, including the guaranty provided by ” section 54,” are applicable to the businesses that sell, lease or hire out goods or services. At the same time, the guarantees are also applicable in case of the manufacturers and importers where the manufacturer does not have a presence in Australia (Four Square Stores (Qld) Ltd v A B E Copiers Pty Ltd., 1981). Apart from the guarantees related with the title, the statutory guarantees don’t generally apply in case of the sale of goods through auction.
As mentioned above, there are a number of statutory guarantees that the applicable in case of goods. Among them is the guarantee of acceptable quality that has been provided by ” section 54″ of the ACL. According to the guarantee of acceptable quality provided by “section 54 ” of the ACL, it is required that the goods that have been sold in context of trade and commerce should be of acceptable quality. Regarding acceptable quality, it can be stated that the goods should be:-
Fit for all the purposes for which such goods are generally supplied.
The good should be satisfactory in Finnish and appearance;
The goods should be free from defects;
The goods should be safe and durable.
The test that can be applied for this purpose is related with a reasonable consumer who completely aware of the state and condition of the goods were considered as being acceptable. In this regard are matters that need to be considered include the:
Nature of goods
The price paid for the goods
The statements made on the packaging of the goods
Any representations; and
Any other relevant circumstances.
On the other hand, it is provided by ” section 138 ” of the ACL that a particle manufacture will be considered to be responsible if, as a result of the defective goods supplied by such manufacture, any person suffers death or injury. In such a case the manufacture will be held liable for the actual loss that has been suffered by the consumer due to the injuries suffered by using the faulty product. At the same time,” section 139″ of the ACL provides that a manufacture will be held responsible in case any person suffers in the due to the result that the consumer has suffered death or injury on account of the defect present in the product. As a result, the persons who depend on the Indian consumer can also claim compensation in case they have suffered loss on account of the injury or death of the consumer.
Who is a manufacturer: in order to explore the action related with defective goods, it is important to understand whom is treated as a manufactured by the ACL. The goods purchased by the consumers are presented in different packaging and labels which indicate that there are several corporate entities that are involved in the production of goods (ACCC v Zanok Technologies Pty Ltd., 2009). For example, generally there are different parties involved in branding, importation, packaging and distribution of goods. Under these circumstances, a significant question arises, if all these parties, that have dealt with the product which has a safety defect, may be considered as the manufacture.” According to section 7 ACL,” a person can be considered as a manufacture of goods under the following circumstances:
The actual manufacture
Persons holding themselves to be the manufacture of goods to the public;
The person who allows another party to represent that they are the manufacturers;
Any person who allows their business name, mark or brand to be applied to the goods; and
The person who imports the goods to Australia where the manufacture of goods does not have a business in Australia.
Application: In the present case, although the salami was packed in air tight plastic packaging, and the purchaser can see the salami, but it also needs to be noted that the bacteria was very small and it cannot be seen with human eye. Therefore in this case, the consumers cannot be held liable for the failure to inspect the salami. However in this case, the salami was purchased by Ann bombardier July and it was clearly written that it should be used whether it was July 2018.. However, Ann stored the salami properly refrigerated but did not look at the use by date. Therefore she consumed a part of salami containing the bacteria on 7 August.
Conclusion: In this way, it can be stated that Ann has also contributed by negligence in the injuries suffered by her.
Issue: The issue is related with the rights available to Ann against the Supermarket.
Rule: Limitations and exclusions are the causes of the contracts that had a party in managing the inherent risks presenting contractual relationships. There are many two things that are done by exclusion clauses. These causes, they the obligations that one party is not required to fulfill. At the same time, these clauses also define the losses or the expenses for which one party to the contract is not going to pay for. However there are several reasons due to which these clauses cannot be enforced. Despite what the parties to the contract have agreed to, it is available to the court to disregard the agreement entirely if it decides to do so. At the same time, the Australian Consumer Law has also imposed strict limitations on the way in which the exclusion clauses have to be drafted (ACCC v TPG Internet Pty Ltd., 2013). These limitations have been mentioned into areas of the ACL. The first is the protection of consumer guarantees which protect the rights of consumers to refund, repair or replacement. In the second place is the section where the ACL tries to prevent unfair contracts (Butcher v Lachlan Elder Realty Pty Ltd., 2004).
It needs to be noted that the consumer guarantees provided by the ACL cannot be limited or excluded by the parties while entering into a contract. Doing such a thing is against the law. However there are certain exceptions present to this rule. For example, under the following circumstances, the liability of one party may be limited:
Resupplying an unsatisfactory service;
Where the cost of providing service more than once;
Repairing or Replacing faulty goods; or
The cost of replacing or repairing the faulty goods
At the same time, there are some exclusions and limitations that cannot be enforced in case of standard form consumer contracts as per the unfair contract provisions of the Australian consumer law. Generally there are two parts of a consumer contract. In the first part of the consumer contract there is the subject matter. It is generally present in case of a contract related with sale of land, goods or services. In the second part of the consumer contract, the contract is for sale of land, goods or services to an individual whose interests are domestic or personal (Barrick v Qantas Flight Catering Ltd., 2007).
Application: In this case, the supermarket had placed a large sign board with clearly stated that Supermarkets Pty Ltd cannot be held liable for any loss or damage caused by the products sold by it and the responsibilities limited to the cost of replacing the product. However in this regard, the statutory guarantees provided to consumers while the ACL cannot be excluded by the parties when entering into the contract.
Conclusion: Therefore the supermarket can be held liable and Ann may claim damages from the supermarket.
2. Advise Shanti about the likely success of her action
Issue: In this case, Shanti was concerned about the safety because a shift ended at 11 PM. The carpark was fairly empty at the time, and it was quite dark. She had also caught a glimpse of a person present in the bushes around the carpark but could not identify the person as there was not lighting in the carpark. Under these circumstances, the question arises if Shanti can sue the factory for the injuries suffered by her.
Rule: In Karatjas v Deakin University (2012), the High Court stated that the occupier has a duty to exercise reasonable care for the purpose of avoiding doing anything that may result in harm to another person and does not have a duty to prevent harm, let alone the harm that may be caused by a third party. This results in setting a very high threshold to overcome in order to establish that a bridge of liability has taken place in third party acquired cases. Ultimately the case filed by the manager failed on account of several outside factors, including outsourced security. This means that while the timing of the lights were controlled by the center, does not mean that the center had any obligations regarding security. In this case, that meant there was an employee of a café present in the University. However, there was a difference between this case and Modbury Triangle v Anzil (2000). As in this case, in Karatjas also the plaintiff was an employee of the café present on the University. However, some differences were also present between these two cases. For example in the latter case, it was required by the university that the café should be open until 7:30 PM. At the same time, the university also require that employees should park their car at a particular spot. While security escorts were provided by the university to staff and students, but these are not provided to the employees of the café. Ultimately, an employee of the café was assaulted, and she succeeded in that action. A final difference that was present in this case was that there has been an even some weeks before, due to which barricades were put up. And these were not removed. As a result, the employees walking to the car park were forced to take along the route and this route to get them through an overgrown ally. While the injured employee was walking through this ally, she was attacked and suffered serious injuries. Under these circumstances, it was held by the court that on account of the control held by the university over the business, particularly the way staff were directed to go to the carpark was sufficient for creating a duty of care, which it had towards the employees.
Application: In the present case also, Shanti had expressed her concerns regarding safety, particularly during night, at the car park. The employer refused to do anything even after hearing about the incidents there certain cars have been broken into. According to the employer there was no need to do anything as the car park was secured. However in this case, it can be stated that the owner had a duty of care towards the employees including Shanti, who parked their cars in the car park and had to take their cars very late at night, when the car park was nearly empty.
Conclusion: Therefore in this case, it can be concluded that the owner may be held responsible to Shanti for the breach of duty of care, and as a result Shanti may bring a claim against the owner for the injuries suffered by her in the car park.
ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640
ACCC v Zanok Technologies Pty Ltd 2009 FCA 1124
Barrick v Qantas Flight Catering Ltd (2007) 163 IR 207
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357
Four Square Stores (Qld) Ltd v A B E Copiers Pty Ltd (1981) ATPR 40-232
Karatjas v Deakin University – 2012 VSCA 53
Modbury Triangle Shopping Centre Pty Ltd v Anzil 2000 HCA 61