Presentation on theme: "Case study 1 Sashas shelves The main issues… 1.Can Sasha obtain a remedy for the defective shelves? 2.Can Baz bring an action in personal injury against."— Presentation transcript:
The main issues… 1.Can Sasha obtain a remedy for the defective shelves? 2.Can Baz bring an action in personal injury against the joiner?
Issue 1, the defective shelves Firstly, we can assume that there is a contract between Sasha and the joiner to construct some shelving in the new house Under the Supply of Goods and Services Act 1982, Section 4(2): Where the transferor transfers the property in goods in the course of a business, there is an implied condition that the goods supplied under the contract are of satisfactory quality. And Section 4(2A) states: Goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
What should Sasha say to the joiner? Because there are nails sticking out of the shelves, a reasonable person would not think that they are of satisfactory quality…. So it is likely that Sasha will succeed in bringing an action against the joiner for breach of the implied contract term
Breach of contract The main remedy for breach of contract is an award of money (damages) to compensate for the claimants loss The Court will aim to put Sasha in the same position as if the contract had been performed Sasha expected to get a set of shelves that were fit for their purpose… So the court is likely to award her a sum of money based on the cost of fixing the shelves, or of employing someone else to put up another set of shelves for her
What other remedies can Sasha get? Under the Supply of Goods and Services Act 1982, Section 11M(2): The transferee has the right (a)to require the transferor to repair or replace the goods; (b) or…to require the transferor to reduce the amount to be paid for the transfer by the transferee by an appropriate amount So the Court might order the joiner to repair the shelves, or to give Sasha a refund… BUT she cant have both….the law says that you cant recover for the same loss twice
Issue 2, Bazs fingers Because he is not in a contractual relationship with the joiner, Baz needs to bring a claim underthe tort of negligence To succeed in such a claim, Baz must be able to prove that: 1.The joiner owed him a duty of care 2.The joiner breached that duty of care 3.The breach caused the damage suffered
Was there a duty of care? The duty of care in relation to personal injury was originally established by Lord Atkins neighbour test in Donoghue v Stevenson Mrs Donoghue drank a bottle of Ginger Beer (bought for her by her friend). The bottle had the remains of a dead snail in it and she subsequently became very ill.. Unfortunately, as she hadnt bought the ginger beer, she had no claim in contract against the manufacturer. "The rule that you are to love your neighbour becomes in law you must not injure your neighbour…You must take reasonable care to avoid acts or omissions which…would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
A duty of care will exist if: 1. That harm was reasonably foreseeable 2. That there was a relationship of proximity 3. That it is fair, just and reasonable to impose a duty of care In light of this test, it is likely that a court would hold that the joiner owed Baz a duty of care.
Was the duty breached? Issue = did the standard of care exercised by the joiner fall below that of a reasonable person? Because the joiner put the shelves up in his capacity as a professional carpenter, the court will compare his actions with those of a reasonable joiner Because the joiner made a total mess of putting up the shelves, and because nails were sticking out, the court is likely to conclude that he did not exercise the standard of care of a reasonable joiner The joiner will be held to have breached the duty of care he owed to Baz
Did the breach cause the damage? Baz cut his finger on the shelves, and is not able to work until his hand has healed… The court will have no problem in finding that the joiners breach caused the relevant damage
What can Baz claim? Baz will be able to claim damages for: -The injury to his finger -Any pain Baz suffered as a result of the injury -Any earnings that Baz will loose because he cannot work
The Cake THE CAKE: she [Sasha] cant resist taking a bite… she suddenly crunches something… and spits out part of her tooth and a small screw… [Sasha is] in pain and with terrible toothache…
Statutes and common law that apply - Statute Sasha bought the cake so he has a contract with the baker so can use this act. Sale of Goods Act 1979 s.14 Subsection (2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. Subsection (2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
Applying the Law - Statute Is the cake of satisfactory quality? This is objective section 14(2A) of the SGA reads: "for the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances. Additionally, by section 14(2B) of SGA a court will take into account: (a)fitness for all the purposes for which goods of the kind in question are commonly supplied. (b) appearance and finish, (c) freedom from minor defects, (d) safety, and (e) durability
The Painted Wooden Farm THE PAINTED WOODEN FARM: … all the children play with the farm… they put the animals in their mouths… they have brown paint all over their mouths and tongues… all the children become ill
Statutes and common law that apply - Cases Your old friend, Donoghue v Stevenson! This case established that a duty of care to take reasonable care in actions or omissions, not to cause harm to others proximate to them is owed by manufacturers This case allows the children to claim some form of damages as a result of their illness
Sale of Goods Act 1979 s.14 Zaks grandparents bought the toy so they have a contract with the shop so they could bring an action using this Act Subsection (2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. Subsection (2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
The Consumer Protection Act 1987 This statute will let Sasha sue the manufacturer of the cake for her broken tooth as well as the manufacturer of the farm for making the children ill. Section 2- Who is liable? (1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage. (2) This subsection applies to (a) the producer of the product; (b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; (c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.
What is a defect? Section 3- The meaning of defect (1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes safety, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury. (2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including (a) the manner in which, and purposes for which, the product has been marketed, its get- up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product; (b) what might reasonably be expected to be done with or in relation to the product; and (c) the time when the product was supplied by its producer to another; and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.
What is Damage? Section 5- Damage giving rise to liability (1) …damage means death or personal injury or any loss of or damage to any property
Possible defences for the manufacturer Section 4- Defences (a) that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any [EU] 1 obligation; or 1 (b) that the person proceeded against did not at any time supply the product to another; or (c) that the following conditions are satisfied, that is to say (i) that the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person's (d) that the defect did not exist in the product at the relevant time; or (e) that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control
Applying the Law Question 1- Do the manufacturers of the cake and farm respectively meet the definition of people who can be liable (Section 2)? Yes! They are both appear to be producers of the product as per Section 2(2)(a) Question 2- Are the farm and the cake defective within the meaning of Section 3? Yes! A screw in a cake and toys painted with paint that comes off very easily is definitely a defect under Section3(1)+(2)(a)+(2)(b) Question 3- Has there been Damage under Section 5? Yes! Personal injury has clearly happened to Sasha and the children as per Section 5(1) Question 4- Are the manufacturers likely to have any defences under Section 4 Probably not. Perhaps section 4(e)- The Development of Risks Defence- could apply to the paint on the farm, but is it really likely that the manufacturer wasnt able to work out that using such paint would be unsafe? Conclusion It appears on the facts given that Sasha would be able to sue both the manufacturers of the cake and the toy farm.
A Very Brief word on Remedies Remedies under the Consumer Protection Act 1987 are usually by way of damages. So this is what Sasha will be recovering here
What can Sasha do to stop parents from buying the farm/ Cake in the future? Tell other people! (only do this if she wins her court case, otherwise she might get sued for slander Contact the Trading Standards Agency - they could do more to publicise her message Although, it is very likely that if Sasha wins her case in Court, then the manufacturer will have to change the paint he uses so that its safe for children/ stop putting screws in cakes… so theres no need for Sasha to stop parents from buying it!