Essay question on consumer protection Act

To advise under product liability and tort of trespass one must appreciate what aspect of law is concerned. In order to advise Jenn on her purchase on the i?? 200 pair of stilton designer heels, it can be identified that the area concerned is contract law. Given that a legally binding contract has taken place, Jenn can enforce a claim that a contract has taken place under the Sales of Goods Act 19791. Due to Jenn purchasing i?? 200 worth of heels, and the heel on the purchased item falls off, she can therefore claim under the Sales of goods act 1979 under section14(2) and 14(3).

The reasons in why it can be advised that Jenn can claim under both sections is as a result of purchasing i?? 200 worth of heels, she would want the heels to be of a satisfactory quality and fit for the purpose. Firstly, Section 14 (2) provides the consumer with an implied condition that goods are of a satisfactory quality. In relation to Jenn, she can state the price which she had spent on the heels cannot be seen as being at a satisfactory quality in the eyes of a reasonable person. Additionally section 14(3) provides Jenn with a claim that the heels were not fit for the purpose which she wanted them to be. One can note with buying i??

200 heels the purpose would be to wear them, therefore this implication can be taken by 'Clarkstone shoe shop' and the heels failed to fit for the purpose in which they were purchased for. This subsequently can allow Jenn to claim under section 14 (3). An example of a case which illustrates this section is the Grant v Australian Knitting Mills case2; in this case it was held that the goods bought by the consumer were not of 'merchantable quality or reasonably fit for the purpose'. This can be extrapolated with Jenn in where she can claim that the heels were not of adequate quality and not fit for the purpose.

The remedies which would be available to Jenn under the sale of goods act could be that the shoe shop may repair, or replace the heels, or a full refund will be given to Jenn. In relation to Debbie's property damage of i?? 80, one must point out that Debbie is restricted on claiming under contract law. The reason for this is because the MP3 player was not bought by Debbie due to it being given as a gift. This is known as the privity rule. Similarly Debbie is also restricted on having a claim under the Consumer Protection Act 19873 due to the act only covering over i??

275 worth of damage limitation. However, one must note that Debbie can potentially claim under the tort of negligence. In order for Debbie to claim under negligence, she must prove three elements. The leading case in this area of law is Donoghue v Stevenson4. This leading case is significant because it established that a duty of care is owed from the manufacturers. In relation to Debbie, she must firstly prove that a duty of care was owed to her from the manufacturers.

This is clear as she is the consumer who has suffered loss from the defective MP3 player, which is 80 of property damage. It therefore can be stated that a clear duty was owed to Debbie from the manufactures. Secondly Debbie must prove that the manufacture breached the duty of standard care. In order to prove whether the standard of care has been breached, the courts will take into consideration whether the electrical store has failed to do what a reasonable person would do. It can be identified that the electrical store has fallen below the standard of care owed to Debbie due to the lack of care taken by 'Curtis electric store' on acknowledging the emails from the manufacture.

This failure to acknowledge the emails can amount to a lack of reasonable care. The reasonable person would act upon these emails and check and fit prior to sale. In addition the burden of proof must be satisfied. Debbie can prove that that the electrical store was negligent in acting upon the emails in order to protect the consumer. As conveyed above both the duty of care and breach of standard of care can be satisfied. In order to fulfil a negligence claim, Debbie must prove that she has suffered damage from the manufacturer.

In order to prove this, there are two forms of causation to be established. Firstly in order to prove causation in fact, the courts will take into account the 'butt for' test. In relation to the scenario the damage may not have occurred but for the negligence of 'Curtis Electrical Store' in not acting upon the emails, the loss occurred property damage for Debbie. Secondly causation in law must be satisfied. In order for Debbie to prove this, she must be able to prove that the remoteness of negligence is reasonably foreseeable.

In the Wagon Mound case5 the Privy Council held "that reasonable foresee ability was the proper test for remoteness of damage in tort law". In relation to Debbie it is clear that the property damage suffered is not too remote however only the judge in this instance will be able to determine whether the loss suffered was reasonably foreseeable. One must note that Debbie is able to satisfy all three elements within the criteria under negligence and it can be advised that Debbie can have a negligence claim. Moreover, one must note that Jenn is able to claim using the Consumer Protection Act 1987 regarding the 'HI FI'.

This is because a claim can only be made if the claimant has suffered personal injury or property damage worth more than i?? 275. This can be satisfied for Jenn. However under this act all Jenn needs to prove is that she has suffered injury or damage to property and that the product is defective under the terms of the Act. In this act, section 2(1) conveys that within the chain of manufacture and distribution anyone is potentially liable. Under section 2(2) (a) it can be stated that the producer of the product will be liable, in this case Nippon Electrics would be liable under this section.

However under section 2(b), the person in who puts their own brand onto the product can potentially be liable, this would therefore be Argots as they place their own branding on the product. It must be taken into consideration that liability under the act is joint and several and therefore Jenn can sue the person with the most money or best insurance cover, this can be seen under section 2(5). Therefore Jenn can claim against the producer in this case being Nippon Electrics, due to the act imposes liability on the producer of the 'HI FI'.

However the retailer being 'Argots' can be potentially liable due to an own brand is made by them, which was sold to Steve in where by doing this, they present themselves as the producer. However all parties must be taken into consideration through the chain until the product is given to the ultimate consumer. Therefore the importer of the 'HI FI' can be taken into account. Under section 2(2) (c), goods which have been imported into the European Union, the importer will be liable if there has been intent to supply to another.

This can be identified as 'Wilston Wholesalers' import the 'HI FI' from Japan into UK with intent to supply the products to UK retailers, therefore this conveys that the importers can potentially be liable for Jenn's injuries and damage. In relation to Sid confronting Steve, it can be identified that Steve can contend that an assault has been inflicted to him. In order for Steve to prove that an assault has taken place, he must prove firstly that Sid must have acted, where in this case Sid clearly did so and secondly that the effect of Sid's action must be a reasonable expectation of immediate, unlawful physical violence.

With the statement 'punch your lights out' this clearly satisfies the requisite elements to an assault. The raising of Steve's fists and the words alone can amount to an assault. This can also be seen in Read v Coker6 where an assault had taken place with words of a threatening nature. In addition to Sid's potential liability in the tort of trespass, it can be seen above that Sid would be potentially liable for the assault in which he inflicted on Steve. In order to prove whether Sid's actions towards Derek could amount to a battery, the requisite elements must be proven.

Firstly it can be seen that physical force was applied towards Derek in where contact was made from Steve. Secondly it can be stated that the force applied was indirect to Derek. However this indirect force can amount to battery. The case of Scott v Shepherd7 illustrates the doctrine of 'transferred malice' in where Steve can be seen to be Sid's instruments. The final element is whether there is intention, in relation to Sid it can be stated that there was intention from Sid to inflict physical force on Steve therefore overall a battery can be seen to be inflicted by Sid to Derek.