Fairchild v Glenhaven Funeral Services Ltd - Essay Example

Fairchild v Glenhaven Funeral Services Ltd The claimant who is represented by the firm agreed to purchase a flue for the claimant’s wood burning stove from the defendant and it was also agreed that the defendant would either by itself or its agents install the flue. It was also implicitly agreed that the installation would be conducted with reasonable care and skill pursuant to section 13 Supply of Goods and Services Act 1982. It was also implicitly agreed that the flue would be of satisfactory quality and fit for its intended purpose (namely for use with the Claimant's wood burning stove) pursuant to sections 14(2) and 14(3) Sale of Goods Act 1979. The purchase and installation was conducted and within a few days of ordinary usage and subsequent airing, the flue overheated and ignited some nearby towels starting a fire. Expert evidence (see the annexed report by Robert Brown) that the flue failed to comply with British Standard specifications, and that the defendant was negligent in fitting the flue in the claimant’s cupboard thereby exposing the flue to the accumulation of dangerous temperatures. The defendant’s basically admit these failures only remarking that they had discharged their responsibility to the plaintiff by warning of the danger of using the flue in close proximity to articles of clothing. Discussion Summary Judgment By virtue of Rule 24 of the Civil Procedure Code 1998 the claimant’s application for summary judgment is required to show that the defendant’s answer to the claim contains a) no real prospect of success; and b) there is no other substantial or compelling reason why the case should be disposed of in a trial.1 By virtue of Practice Direction 24, summary judgment can be obtained in one of the following three situations:- A) The claim or defence is defective or obscure; B) The claim or defence is inherently weak and cannot justify going to trial on the issues; C) The case depends on question or construction of law which is very clear.2 It is important to note that the court will make its determination based on ‘the evidence which can reasonably be expected to be available at trial or the lack of it’.3 Since the defendant purports to be relying only on the strength of the contract itself in evidence, it will have no evidence capable of contradicting the claimants charge that the flue and its subsequent was negligent. The basis of this claim is founded on the principles enshrined in the tort of negligence rather than any contractual terms and is tantamount to not defence at all. Lord Woolf explained in the case of Swain v Hillman [2001] 1 All ER 91 ‘The words "no real prospect of succeeding" do not need amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or, they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.’4 In looking at the defendant’s claim there is no realistic chance of success in the context of negligence or contractual claims. In determining whether or not the plaintiff’s claim has any real prospects of success the court will look at the merits of the plaintiff’s claim.5 The defendant’s claim that the plaintiff was partially responsible for the flue’s malfunction in that she failed to fit a barrier around it falls to considered under Section 1(1) of the Law Reform (Contributory Negligence) Act 1954 provides: ‘Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons ... the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable…’6 However, Section 1(1) will not arise to partially discharge the defendants since it is clear law that it is the creator of the risk that must bear responsibility for it. Lord Wilberforce further expounded on this principle in Fairchild v Glenhaven Funeral Services Ltd (2002) 1 WLR 1052 by saying that ‘…first, it is sound principle that where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be born by him unless he [the defendant] shows that it had some other cause. Secondly, ... as a matter of policy or justice ... it is the creator of the risk who, ex hypothesis, must be taken to have foreseen the possibility of damage, who should bear its consequences.’7 In any event, the defendants are the experts in the construction, installation and mechanics of the flue and the claimant is a lay person with no special knowledge of skill. Lord Devlin said in Hedley Byrne & Co Ltd v Heller & Partners (1964) AC 465 that the defendant was under a duty of care not to be negligent in cases where the plaintiff relied upon the defendant’s special skill and judgment.8 The defence is tantamount to an attempt at invoking some sort of exclusionary clause which is not permitted by of S4 of the 1977 Act, which provides that an exclusion clause is not generally enforceable when one of the parties to the contract is a consumer, unless the clause is reasonable.9 This section is founded on principles of inequality of bargaining position.10The ‘good faith’ doctrine is primarily reliant upon the strength of the respective bargaining position of the parties and determines whether or not it is fair and reasonable in the circumstances to validate the exclusion clause.11 The plaintiff is entitled to the loss incurred in respect of the hotel and holiday costs since they are actual costs incidental to and arising out of the damages caused by the flue.12 Moreover, Remedies for breach of contract endeavour to place the parties in the position they would have been in had the contract been performed satisfactorily or according to the terms and conditions contained in the contract.13 Bibliography Civil Procedure Code 1998 Fairchild v Glenhaven Funeral Services Ltd (2002) 1 WLR 1052 (H.L.) Hedley Byrne & Co Ltd v Heller & Partners (1964) AC 465 (H.L.) Keenan, D. (2006) Smith and Keenan’s Law for Business. Longman, Pearson Higher Education Law Reform (Contributory Negligence) Act 1954 McEntive, E. Business Law. (2005) Longman, Pearson Higher Education Practice Direction 24 Sale of Goods Act 1977 Swain v Hillman [2001] 1 All ER 91(C.A.) Werner v CIR (2002) (C.A.) http://www.hrothgar.co.uk/YAWS/frmreps/979.htm Viewed March 26, 2007 Read More