1. Smallgoods Pty. Ltd. is a manufacturer of processed meat products including salami. During the manufacturing process, the salami is put through a treatment process that kills bacteria which is known in the small goods industry to form in the salami during production. The bacteria is very small and cannot be seen with the human eye. During the manufacture of a particular batch of salami marked “use by 31 July 2018”, Smallgoods Pty Ltd omitted to put the batch through the bacteria treatment process. The salami was then packaged in air-tight plastic packaging which allows the purchaser to see the salami.
This batch of salami was sold to Supermarkets Pty. Ltd. for sale in its supermarket in Melbourne. On 20 July 2018, Ann purchased a package of salami which was marked “use by 31 July 2018” from the supermarket. Above the smallgoods section of the supermarket was a large sign which read “The Liability of Supermarkets Pty. Ltd.” for any loss or damage caused by any product it sells is limited to the cost of replacing the product”.
Ann properly stored the salami in the refrigerator but did not look at the “use by” date. On 7 August 2018, she consumed part of the salami which contained bacteria and she became very ill. She required hospitalisation, incurring large medical expenses and was unable to go to work for two months.
(a) Compare Ann’s rights against the salami manufacturer under the tort of negligence with her rights under ss54 and 138 of the ACL (10 marks).
(b) Aside from the rights discussed above, explain whether Ann has any (and if so, what) rights against Supermarkets Pty. Ltd. under the ACL in relation to the contaminated salami (10 marks).
2. For some years, Shanti had worked night shift at the U-Bewt Shoes factory, where she was the cutting-machine operator. Her shift started at 3pm and finished at 11pm. She travelled to work by car, and the factory had a car park in which she parked. When she left work at 11pm, the car park was fairly empty, and quite dark. She was the only one leaving at that time, and she had to walk over 100 metres to reach her car. Shanti had, in the past, caught a glimpse of a person in the bushes surrounding the car park, but had never been able to identify the person, since the carpark was unlit.
Shanti had mentioned her concerns about walking in the car park at night to her manager, Mr Collins, and suggested that the factory erect some lights, but he had told her that there was nothing to worry about. The car park was fenced, and there was a security guard at the gateway to the car park. Shanti replied that the security guard was not of much help to her, since he was 500 metres from the actual car park. Shanti also told Mr Collins that everyone knew that some cars had been broken into. Mr Collins said that he had heard about the problem but said that nothing more needed to be done, since the car park was secure.
A week after this conversation, Shanti was walking to her car when she saw a figure at one of the other cars. When she caught a clearer view she saw that it was a man, and that he was clearly breaking into her car. She yelled out, and the man ran towards her and punched her and knocked her to the ground. He then kicked her, and grabbed her handbag before running off.