Question

Carlos went to a fish shop and asked for 1 kilo of two fresh prawns for dinner. The fish shop owner explained that he had no fresh prawns but that he had some boiled ones, which he sold to Carlos. It turned out that the prawns weren’t fresh and Carlos, after eating them, became seriously ill.

Required:
a) Does Carlos have any action open to him against the fish shop under the Australian Consumer Law? You must specify which sections of the ACL apply to this case.
ANSWER:




b) What does Carlos need to prove to succeed in claiming against the fish shop based on Australian Consumer Law?

Answer 1

a) Yes ,Carlos can take action against the fish shop under the ACL.The consumer guarantees apply to any contract for the supply of goods or services to a consumer made after 1jan 2011.Section 54(2) of the ACL provides that goods are considered to be acceptable quality .Any violation of this guarantee enable the consumer to go for a remedy such as refund ,repair ,replacement and compensation. So Carlos has the right to claim against the fish shop as he is being violated ,the good he purchased didn't guarantee the acceptable quality.

b)As he being violated the guarantee ensured in section 54(2), (that is if a product you buy fails to meet a guaratee) he has the right to remedy such as

1. Refund
2. Replacement or exchange
3. Repair
4. Compensation.

As the first 3 remedies doesn't suit him ,he can move forward with the 4 rth one.The remedy you are entitled will depend on whether the failure to comply with the guarantee is major or minor.Carlos incured costs or suffered losses ,so he can claim compensation from the seller..He can only claim compensation for the loss that can be reasonably attributed to the failure of the supplier to meet the guarantee.There are 3steps that he can possibly do

1. Contact the seller.
2. Contact the ACCC or another 3rd party.
3. Take legal action.

As soon as possible ,contact the seller to explain the problem and outcome you want.In many cases a simple phone call or mail can fix this problem.The business might ask him for the proof of purchase and discuss whether it is a major or minor problem to determine replay ,replacement or repair.It is a good idea for him to write a letter explaining very wellso that the seller clearly aware of the problem.

What he want to prove is regarding the bill he got from the seller,he must submit it before him and also the records of medical check up he had taken from the respective hospital.Under ACL ,he had to ensure the quality of the product he sells,by violating this he should pay for this.The seller should negotiate with carlos within reasonable time period.

And finally he still faces difficulty resolving the problem or hecannot negotiate with reasonable outcome from the seller ,he should contact the ACCC or another 3rd party and later he could take legal action.