THIS QUESTION IS FROM 2017 SAME EXAM PAPER FOR REVISION ONLY

Sally Jones, who is 80 years old and has poor eyesight, wants to install a solar hot water system. Her house gets a lot of afternoon shade from a local mountain range. Sally decides to use Nice and Warm Pty Ltd, based on statements read to her from their standard contract by their employee Jim (Who visited her for afternoon tea at her home). Jim read out clauses that stated: The Nice and Warm solar system would "Pay for itself within three years"; and "It is designed to work on very cloudy days when there is as little as 20% sunshine".Sally signs a contract and pays a total installation costs of $8,723 for a new solar hot water system, new shower head and new shower taps. The new hot water system, shower head and taps were installed one month ago by Nice and Warm Pty Ltd employees.

It is now one month later, and Sally is not happy. The system is not working properly as the water is not hot enough. She has had several qualified trades people inspect the solar system by they all state that it cannot be made to work any better as the system requires more direct sunshine. Also, the shower head that Nice and Warm Pty Ltd installed fell off last week because it had not been tightened properly and hit Sally's foot very hard. Sally comes to you for advice as she does not know what to do. When you review the contract, you see one clause states "the system requires at least 40% sunshine for 8 hours per day in order to work at full capacity". A doctor's report confirms Sally's foot is very badly bruised.

AdviceSallyregarding any rights she has under:

(a)The tort of negligence regarding the injury on her foot.

(b)The Australian Consumer Law regarding the hot water system.

Advice Sally.

You are to assume that the installation of the solar hot water system otherwise complied with all buildings codes and planning and licencing requirements, and that there is no breach of those codes or licenses. Ensure you refer to appropriate legislation and case law in your advice.