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:

1. 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.
2. What does Carlos need to prove to succeed in claiming against the fish shop based on Australian Consumer Law? 

A) yes, Charlos can bring action against the fish shop under section 21 of Australian consumer law, for his unconscionable conduct.

B) As per section 21(1), A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person; or

(b) the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

So there are three elements need to prove-

1. In trade or commerce- The conduct of a person should be in course of trade or commerce. It should not be in ordinary course of dealing between two persons, element of trade and commerce is required as per law.

In this case fish shop owner sells fishes, so there is no problem regarding, proving the element of trade or commerce.

2. Supply or aquisition of goods or services- there should be supply or acquisition of goods or services.

In this case Carlos has been supplied the prawns by the owner of fish shop.

3. Conduct is unconscionable- section 22 tells about what a unconscionable conduct means. Sec 22 provides an inclusive list of in regard to qualify a conduct as misleading.

As per sec 22(i) unconscionable conduct includes when the supplier unreasonably failed to disclose to the customer any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer).

In this case, the owner of the fish Shop should disclose to the Carlos that the prawns which are not fresh sold by him could be harmful for his health. Selling of prawns which could be harmful, amounts to unconscionable conduct.