Men’s Skin Smoother

The case study presents a range of issues in regards to Kai’s injuries, Men’s Skin Smoother and the Supermarket. Kai purchased a bottle of Men’s Skin Smoother for The Supermarket under the impression that the substance would moisturiser his rough skin. However, Men’s Skin Smoother caused a lot of damage to Kai’s skin and the injury left him with $40,000 of medical expenses and caused him to miss out on $30,000 of paid work. Both implied and expressed terms must be examined when determining whether or not Kai is able to seek damages, medical expenses and/or lost earnings from The Supermarket.

The issues involving implied terms include that Kai relied on The Supermarket’s judgment to supply a moisturiser that was Fit For the Purpose. However, the product Men’s Skin Smoother caused damage to Kai meaning that its standard was not appropriate or necessary for Kais intended use. Therefore the product did not function properly and was not Fit For Purpose.
The relevant legal principle for Fit For Purpose comes under the Trade Practices Act (TPA) 1974 s.71(2). This contract comes under the TPA under s4B where Kai has purchased the good for personal use and where the Supermarket has been determined as a service provider that is a trading corporation.
In relation to the case Godley v Perry (1960) {345} simular facts apply. Godley purchased a toy plastic catapult from Perry. Godley relied on Perry’s judgment and skill in the selection of his product. The catapult broke and injured Godley. As the good was bought for its usual purpose of hurling objects, it was ruled that the catapult was not fit for purpose. Similarly Kai relied on the judgement of the supermarket to supply a product fit for purpose. The product was bought for its usual purpose; to moisturise. As it did not perform this task it can be said that Men’s Skin Smoother was not fit for purpose.
Kai relied on the Supermarket’s judgment to supply a moisturiser that was Fit For Purpose. The product Men’s Skin Smoother did not perform the task which it was purchased for, therefore there is a breach in contract and the product is not Fit For Purpose.
Further issues regarding the implied terms of the consumer contract include the defect that existed in the Men’s Skin Smoother which was not brought to Kai’s attention before purchasing the product. When Kai purchased the Men’s Skin Smoother it was implied that the moisturiser would be of Merchantable Quality and that any defects should have been brought to his attention prior to the formation of the contract.
The relevant legal principle for Merchantable Quality also comes under the TPA (1974) in s.71(1) There is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality. {328}
In relation to the case Grant v Australian Knitting Mills (1933) {343} similar facts apply. Grant purchased some woolen underwear from John Martin’s retail store. As a consequence of wearing the underwear Grant developed a severe case of dermatitis. The court found that the product had been bought by description from John Martins store and were not of merchantable quality, therefore the contract was breached. Similarly, Kai relied on Men’s Skin Smoother to be of merchantable quality. He bought the product by description and as a result of using the product, Kai suffered severe injuries. Therefore it can be said that Men’s Skin Smoother was not of merchantable quality.
When purchasing Men’s Skin Smoother from The Supermarket, Kai relied on the product to be of merchantable quality. The use of the product caused Kai to suffer from injuries. As the product is not of merchantable quality The Supermarket should not have been selling it.

Kai had bought this bottle of Men’s Skin Smoother purely because of the description made on the television advertisement which the announcer stated that Men’s Skin Smoother would make his skin feel smooth, and slough away roughness. However, the description did not reflect the consequences of using this product.
s.70 of the TPA(1974) states there is an implied condition that the goods will correspond to the description by which it is sold.
The Supermarket is therefore required to sell Men’s Skin Smoother matched with the description as seen on the advertisement. Since Kai was unable to inspect the goods purely because the content was inside, the judgment was made with the expectancy of the goods would be as described. This is similar to Beale v Taylor (1967) {347} where the buyer relied on the description that was made in an advertisement and purchased the convertible. Even though the buyer inspected it before purchasing the convertible the fact that two cars welded together was not part of the description and ultimately not part of the contract.

In relation to terms in the contract, expressed terms are also existent. The back of the package of Men’s Skin Smoother had an exclusion clause that limits liability of the manufactuer to nothing leaving liability to the Supermarket. However, to be affective the clause cannot defend a fundamental breach. Men’s Skin Smoother had a primary purpose to moisturise skin. As the product caused severe damage to Kai’s skin instead, it can be said that there was a fundamental contravention of the essential terms of the contract. Under s.68 of TPA (1974) implied terms are unable to be excluded and any attempt to do so (the exclusion clause) is void. Therefore the exemption clause is not valid and is no longer part of the contract.

From the facts established, we can deduce that the contract has in fact breached a variety of areas within contract law and more specifically the Trade Practices Act (1974). This contravention has resulted in Kai’s intention to seek compensation for his losses. Under section 68A (1) of the Trade Practices Act, this entitles the defendant to any one or more of the following: (i) Replacement of goods or supply of alternate goods. (ii) Repair of the goods. (iii) Payment of the cost of replacement or alternative goods (iv) Payment for having goods repaired.
This means that Kai is within his rights to have his money refunded for the cost of the bottle of moisturiser (or for the cost of a replacement product if he may so wish). This in turn limits the supermarket from being responsible for Kai’s incurred medical expenses and the costs of his lost modeling contract.

Prior to the formation of the contract between Kai and The Supermarket, Kai had no serious problems with his skin. However, after the purchase of the Men’s Skin Smoother, Kai incurred medical expenses of $40,000 and lost out on a part-time modeling contract worth $40,000. In the case Hadley v Baxendale(1854){384}, it was not reasonably foreseeable that the loss of profits would be caused by a broken shaft. Under the first limb of the rule in Hadley v Baxendale(1854){384}, the incurrence of medical expenses would be expected to arise naturally from the breach in contract of implied terms.
It is under the second limb of the rule in Hadley v Baxendale(1854){384}, that at the time of contract it was not made known to The Supermarket that Kai was a part time model and the loss out on the job opportunity was not of reasonable contemplation.
Therefore, it is likely that Kai can sue for Medical expenses but not for his loss of earnings on the model contract.