BULAW5914 Commercial Law

Question One
Jim, Kit and Erik are out and about having fun in Melbourne. They stop by a café and Jim goes to the counter to buy some drinks. He finds some fancy bottles of soft drink he hasn’t seen before. He buys three. The friends are having a lively conversation as they drink their drinks. All of a sudden Kit starts coughing and spluttering. He then goes purple in the face. He is clearly choking. Erik, a trainee nurse, grabs Kit around the middle and pushes his clenched fist just under Kit’s chest. Kit coughs up a small plastic ball. This was part of the bottle top and has come loose. Kit starts crying and is comforted by Jim. Kit is very distressed as he realises what might have happened if Erik had not been there and had not had the necessary training. Kit has since been diagnosed with clinical depression and has not been yet been able to resume his University studies.Required: Does Kit have an arguable case in tort law? Who would he sue? On what grounds?
Question Two
Max receives a tax refund cheque for $2000. He wants to buy his wife Anna some new appliances to cheer her up as she recently lost her job. Firstly, he buys her a fancy coffee machine for $420. He then purchases a washing machine for $1260. He asks the sales assistant, Bernie, whether the 7kg machine would be big enough to wash a Queens Sized continental quilt. Bernie replies that ‘it should be OK’. The last item that Max buys are heated curling tongs for Anna to use to curl her long luxurious auburn hair. Max purchases all items from local electrical retailer, Betterex, which is owned by a company, Smart Electrical Pty Ltd. All items are manufactured overseas but imported by Smart Electrical.As it turns out, Max is very unhappy with his purchases. The coffee machine stops working after 6 coffees. When he tries to get it fixed Betterex tells him that there are no spare parts available and all they can offer is a replacement machine. The washing machine ripped a hole in one of Max and Anna’s continental quilts but Betterex denies the machine is at fault as they claim the machine was never designed for such a heavy load like the quilt mentioned and that Anna must have placed the quilt incorrectly in the machine for part of the quilt to be ripped when it ended up outside of the drum. Betterex also deny that any of their employees would give advice that washing a continental quilt in such a machine would ‘be OK’. The heated curling tongs overheated and burnt Anna’s hair and she has had it cut short.Required: What rights does Max have under Australian Consumer Law? What likely remedies would apply?