Purpose
This is a significant task that requires forward planning and adequate time for research, reading and reflecting. It comprises 35% of your assessment in this subject.
You should begin researching early to gather information and establish a plan as soon as possible.
The purposes of the assignment are to enable you to:
- develop your law reading, research and writing skills;
- enhance your understanding of law as a dynamic process;
- learn how to independently research a particular aspect of the law;
- reflect on and consider particular legal issues;
- demonstrate understanding of the legal environment, including relevant laws as well as economic, ethical, social/cultural, international and political issues;
- develop your knowledge about the subject area of your research;
- demonstrate the ability to investigate, synthesise and analyse;
- communicate the findings in a formal piece of work and meet a deadline;
- enhance your analytical and written communication skills; and
- apply your legal skills.
Assignment Assessment Criteria
You will be assessed on the extent to which you have:
- answered the set question;
- used good English expression, correct spelling, good punctuation and grammar and have proof read your work;
- used good logic and structure;
- been able to identify, set out and discuss relevant legal issues, legal principles and cases, as appropriate;
- used statutes and cases to support your arguments, as appropriate;
- analysed, argued or discussed as required by the task questions;
Task
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 (a 2013-2016 edition) ||4-010 to ||4-220; and ||7-215.
Read: The Australian Consumers Association Ltd (‘CHOICE') Mass Incident Report to the ACCC: Consumer reports of Thermomix product failure and serious injuries https://www.choice.com.au/~/media/52d973c58c214df985bada83f482f852.ashx?la=en published in May 2016 and also available for download from the Moodle page for this course.
Answer all three questions
Consider only the position of the Thermomix appliance Australian users whose burn injuries were summarised in Appendix One (pages 21-23) to the CHOICE Mass Incident Report.
1. For the injured users 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.
2. Why do caps (i.e. limits) on personal injuries damages exist in Australia? By referring to the relevant civil liability statute provisions that apply in your State, explain what role those caps play in limiting the extent of possible tort liability (considered in question 1) that might be owed to the injured users.
3. Do the injured users have possible rights under Part 3-5 of 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.
3 references