Question 1

“Required: Does Kit have an arguable case in tort law?

Who would he sue? On what grounds?”
It is case of Tort Law where a wrong civil behavior could cause damage to other
person unfairly. Person suffered by loss or harm due to the damage and has right
to claim legal penalty against the person involved in this unfair act. It is important
to mention that legal penalty might not be for committing a crime rather it could
be a tort case of negligence (Barker, 2012). In cases related to Tort Law, victim
has the right to claim his/her damages in legal case; however, he has to provide
legitimate evidences of the tort behavior or negligence by the part involved in
damage. Kit was in serious trouble by the manufacturing defect by the company
where negligence occurred in manufacturing of defective piece. Kit has the right
to claim legal penalty against the company involved in this negligence. Tort Law
defines the tort behavior as:

“17.19      Torts are generally created by the common law,  although there are
statutory wrongs which are analogous to torts.  In addition, many statutes
extend or limit  tort remedies, while statutory duties and powers may form the
basis of duties or liability in tort, either in the common law tort of breach of
statutory duty or the common law tort of negligence.  Many common law torts
have a long history, some dating as far back as the 13th century,  although
others were created more recently.” (Stickley, 2016)

Tort law does not work only in case of physical injury rather it is applicable to
emotional injuries, depression after incident, reputation injuries and privacy
violation. Kit was involved in physical injury at the time of incident as well as
emotionally depressed after the incident which was more painful as he was
diagnosed with clinical depression and even not yet continue the study (Barker,
2012). There is an important clause in Tort Law, called strict liability, where
damage is done using products of company. In that situation victim is not bound
to provide evidences in the court. Kit is also affected by using product so he will
use strict liability clause in the court to make his case stronger as he will not have
to provide evidences in court (Jancaukas, 2015).

This case pertains to product liability that is related to manufacturers who are
responsible in case of any damage done by their products. Product liability law
has replaced theory of negligence where due to negligence behavior damage is
done to the victims unintentionally. There is a significant statement in Tort Law,
called strict liability, where harm is finished utilizing results of organization. In that
circumstance injured individual will undoubtedly give proves in the court. Pack is
likewise influenced by utilizing item so he will utilize strict liability provision in the
court to put forth his defense more grounded as he won't need to give confirms in
court (Howells, 2018). Kit has the claimable case of strict liability where
manufacturer of the bottles could be in serious trouble because they would be
liable even if they take utmost care in manufacturing the product. Kit has two
option to file a legal case either he can file claim for negligence behavior or claim
for strict liability.

A ground for this case is to pursue claim on the basis of product liability – “a
claim of injury suffered because of a defective product”, case of defective bottles.
There are three types of claims that can be filed under product liability as
described in Section 2 of Restatement of Tort Law; that is products liability.
These three claim types are called design defect, manufacturing defects and
marketing defects. Kit has a strong ground for filing the claim under
manufacturing defects because defective piece of bottle top was the main cause
of injury to the Kit (Jancaukas, 2015). Claim against manufacturing defect is
based on poor quality of raw material used in production of bottles that cause
physical and emotional damage to Kit. It is important to note that lawyer hired by
the Kit has to convince the court that it is stronger case manufacturing defect
because if the judges are not convinced then it will be difficult for Kit to get the
compensation from the bottle manufacturing company (Barker, 2012).

Once the claim has been filed on the grounds of strict liability, it will become easy
for Kit to proceed to the case and has to convince about happening of incident. If
court is satisfied with the claim, it is possible that bottle manufacturer company
could be imposed heavy penalty and ultimately Kit could get handsome amount
of money as claim. Because law is very strict in this stance where products are
manufactures without proper care and following safety standards of customers.
Strict liability clause of Tort Law is consisting on following guidelines:

 “Certain products put people at risk of injury no matter how much care is taken to
prevent injury.
 Consumers should have some means of seeking compensation if they’re injured
while using these products.” (Stickley, 2016)
There is one strong defense that can be used by the bottle manufacturer
company on the basis of “absence of fault”. In such scenario, company can insist
that there was no defective fault in bottle’s top rather Kit was careless during
drinking it and swallowed the top due to his own mistake. If company could able
to convince the court that injury to the victim is from his own action and not from
the fault of bottle top, then case could be dissolved by the court (Howells, 201).
Compensation in case of such disputes is awarding of money to the victims
against damages with the purpose of restoring the victim in the same position as
he was in before the incident. In case of winning the case, Kit could be able to
obtain from compensatory damages or (and) punitive damages. Compensatory
damages consist of medical expenses incurred by Kit as well as damages
against emotional stress because of the incident. Punitive damages are type of
punishment to the defendant if there is any serious negligence or intentional
reckless behavior occurred from defendant. Kit would able to award with
compensatory damages but he might not avail any benefit from punitive
damages (Jancaukas, 2015).

By concluding the case study it is analyzed that Kit could claim the damages as
per tort law and has arguable case. Kit was in serious trouble by the
manufacturing defect by the company where negligence occurred in
manufacturing of defective piece. Kit has the right to claim legal penalty against
the company involved in this negligence. A ground for this case is to pursue
claim on the basis of product liability – “a claim of injury suffered because of a
defective product”, case of defective bottles. Kit has a strong ground for filing the
claim under manufacturing defects because defective piece of bottle top was the
main cause of injury to the Kit. Kit would able to award with compensatory
damages but he might not avail any benefit from punitive damages.

Question 2
Required: What rights does Max have under Australian
Consumer Law? What likely remedies would apply?
Australian Consumer Law is a legislation that is used to protect consumer rights
and came into effect from 2010 under the name of Computation and Consumer
Act. Considering the case of Max, Australian Consumer Law defines a consumer
as:

“A person - or a business – will be considered a consumer if:

 they purchase goods or services that cost less than $40,000

 the goods or services cost more than $40,000, but they are of a kind ordinarily
acquired for domestic, household or personal use or consumption
 the goods are a commercial road vehicle or trailer used primarily to transport
goods on public roads.” (Law, 2010)
Max is considered as consumer and he is entitled to get consumer rights
according to Australian Consumer Law. Rules are set to protect consumers
against any negligence, malpractice and fraudulent activity by manufacturers,
wholesalers or suppliers (Corones, 2011). Max has purchased various electronic
and electrical accessories that have different issue in each item and
simultaneously different rules will be applied to each item. ACL bound the
suppliers and manufacturers to deal with customers’ complaints and issues. If
there is any complain from customer and customer asks for remedy then
suppliers are bound to provide them remedy if customer’s complain is genuine. In
case of not responding to complain of customer, it can:

 “report the problem to the ACCC or their local consumer protection

agency, or
 have the matter heard in their local small claims tribunal or magistrates
court. The Magistrate or tribunal member’s decision is legally binding.”
(Law, 2010)

Coffee machine purchased by Max got damaged and there is option to offer a
replacement machine by the supplier. As for as coffee machine is concerned,
Betterex already offers to Max regarding replacement of coffee machine which
will be accepted by Max because he cannot claim more than that. In fact Max
claim as per Australian Consumer Law would be replacement of coffee machine
which he already getting (Corones, 2011). However, Max should make sure that
if he agrees to buy replacement machine that it is identical to previous machine.
There is also option of refund available for Max if he thinks that replacement of
coffee machine would also give same result. Betterex cannot refuse Max that
they cannot refund the machine because it is lightly used. As per ACL, however,
Betterex can examine the coffee machine whether it is manufacturing fault or any
damage is done by the Max. As it seems, there is manufacturing fault in the
machine so Max can claim refund of full amount as per ACL (Law, 2010).

As far as heating curling tongs are concerned, it is sensitive and safety concern
for the customers. It is obligation of supplier and manufacturers that to supply
and manufacture products that are safe to use as per ACL. All the products must
meet safety standards then they can be sold to customers and it is applied to
imported products as well (Nottage, 2011). In case of damage done to Anna by
using heating curling tongs, product responsibility is lies to Smart Electrical who
import it from overseas. Part 3-5 of Australian Consumer Law is placed liability of
dangerous goods that cause harm to the consumer on the manufacturer and
importer of the product. “Section 9 defines goods as having a safety defect if their
safety is not such as persons generally are entitled to expect, having regard to
such matters as their marketing, packaging, price, instructions that come with the
goods and their normal use.” (Law, 2010)
Max can claim the damage of her wife, Anna, hairs against the product use from
Smart Electrical under Part 3-5 of ACL. However, ACL gives right to importer the
right to defend their case under following conditions as per law:

“The manufacturer (Or importer) may defend a claim in the following ways
(s142):

 the defect did not exist at the time of supply by the manufacturer;
 the defect existed only because there was compliance with a
mandatory standard for the goods;
 the state of scientific or technical knowledge at the time when they
were supplied by their manufacturer was not such as to enable the defect to
be discovered;
 the goods were incorporated as part of other goods and those other
goods were defective.” (Law, 2010)

If it is found it after investigation that heating curling tong sell by Smart Electrical
is as per compliance standard then state is liable for damages to Max and Anna.
It is also worth mentioning that if there is any fault from the couple by using the
product and they fail to take safety measure then damaging amount might be
reduced (Schaper, 2010).

Washing machine dispute is crucial for Max because he spent handsome amount
on purchase of washing machine as well as his quilt is also damaged. On the
other hand Betterex is not accepting that there is any mistake on their part even
they deny any words by their salesperson. As it is major failure as per Australian
Consumer Law, Max has the right to reject the washing machine or claim
damaged. As per s259(3) of the law, he can reject the goods on the grounds that
he purchased it for a purpose which is not met by the machine, rather it give
extra damage to them because their quilt got hole. Here case is more
complicated because retailer is not accepting any fault from their side so matter
could go to the consumer court (Nottage, 2011).

Max could file a case against Betterex for consequential losses due to machine
he purchased from them. Strong ground for this case is because washing
machine he purchased from the store, and on instruction from the salesperson
he use it to wash king size quilt which cause damage to quilt. Max has the option
to reject the washing machine because Betterex did not respond to the complaint
of damage rather they deny any mistake from their side (Schaper, 2010). Here
law explains how Max can reject goods:

“To do so, the consumer must return the goods explaining why they are being
rejected (s259(3)(a) and s263(2) or must notify the retailer to come and collect
them if the goods are not transportable (s263(2)(b)). The retailer must then
refund the price of the goods or replace them (s263(4)). The retailer cannot
require the consumer to buy other goods in lieu of a refund (s263(5)).” (Law,
2010)

It is important to mention that Max cannot file any case or claim any damage
against Smart Electrical because it is not any manufacturing fault rather there is
element of miscommunication from the Betterex. Concluding the case study it is
analyzed that Max has generous right provided by Australian Consumer Law and
he is entitled for refund, rejection and consequential losses remedies.
References
Barker, K., Cane, P., Lunney, M., & Trindade, F. (2012). The law of torts in
Australia. Oxford University Press.

Stickley, A. P. (2016). Australian torts law. LexisNexis Butterworths.

Jancauskas, R. (2015). Product liability class actions in Australia. Precedent

(Sydney, NSW), (129), 23.

Howells, G., & Owen, D. G. (2018). Products liability law in America and Europe.
In Handbook of Research on International Consumer Law, Second Edition.
Edward Elgar Publishing.

Corones, S. G. (2011). The Australian consumer law. Thomson Reuters

Lawbook Co.

Nottage, L. R. (2011). Suppliers’ Duties to Report Product-Related Accidents

under the New'Australian Consumer Law': A Comparative Critique. Commercial
Law Quarterly, 25(2), 3-14.

Schaper, M. T. (2010). Competition law, enforcement and the Australian small

business sector. Small Enterprise Research, 17(1), 7-18.

Law, A. C. (2010). The Australian Consumer Law: A Guide to Provisions.