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.

 

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

(a). Under sections 18 and 29 of the Australian consumer law, Carlos can seek an award of damages, following the event where fish shop owner sold the boiled prawns to him, and became seriously ill after eating them. Pursuant to section 271(1) of the ACL, Carlos may recover damages against the fish shop owner for not complying with the statutory guarantee that the prawns were fit for consumption.

(b). Based on the provisions of the Australian Consumer Law, Carlos will have to establish that; he has suffered damage in the form of a serious illness; the fish shop owner's conduct of selling the boiled prawns that caused Carlos the serious illness is in breach of a common law duty or contravenes one of the provisions of the Australian consumer law; and that the damage was caused by the fish shop owner's conduct.

In Australia, food law is dealt with mostly through tortious negligence and statutory claims.Causes of action in respect of food poisoning may arise in negligence, in contract, or under the Australian Consumer Law, which is contained in the Competition and Consumer Act 2010 (Cth). The ACL provides for a strict liability regime in the sense that it does not require a claimant to establish a want of reasonable care. To establish a breach of a consumer guarantee, Carlos must establish, on balance, that the boiled prawns were not fit for human consumption. Section 29(1)(a) of the Australian Consumer law prohibits the fish shop owner from making a misleading representation as to the quality of the prawns sold to Carlos, and a contravention can result in monetary penalties as well as an award for damages to Carlos for the resulting illness due to the consumption of the boiled prawns. In the context of a food poisoning claim, if it is established that a food product was contaminated, then this will plainly constitute a 'safety defect' for the purpose of the ACL. The main areas of contention in such claims are usually whether the food product was contaminated and whether this caused the claimant's injuries.