The Consumer Protection Act 1987 Analysis - Essay Example

Part A Question 1 The Consumer Protection Act 1987 is calculated to rectify some of the residual difficulties for consumers in respect of fault finding and recovery of damages for product liability.1 Ultimately, the issues for Carswell is whether or not the UPOD was defective, and attributable to Hot Ideas and more importantly, whether or not his loss of hearing is result of that defect. The 1987 Act, has as its aim, the regulation of safety and permitting claims for damages within the scope and range of product liability.2 The Consumer Protection Act 1987 implements Council Directive 85/374/EEC.3 The Directive’s approach can be construed as one of strict liability for manufacturers and distributors. A defective product is described as a product which fails to offer or ensure the kind of safety that a person can normally expect.4 Section 4(2) of the 1987 Act retains this description.5 In determining whether or not the UPOD was defective within the scope and range of the 1987 Act the courts defer to common law principles.6 This approach is manifested by Section 3(2) of the 1987 Act which requires that, when considering whether or not a consumer can reasonably expect a product to be devoid of defects, the court must take into account all of the relevant circumstances.7 The manner in which the product was marketed is relevant For example in Worsley v Tambrands, the court ruled that warnings placed on a package warning of toxic shock were sufficiently displayed pursuant to the 1987 Act.8 The government sponsored campaign which was a general warning to the public was not directly attached to the product purchased by Carswell. The warning is required to be placed on the product’s package.9 In assessing the merits of Carswell’s claim, the court will also take into account whether or not the product can be safely used for its intended purpose.10Scientific research reveals that the UPOD may be used safely since the risk of hearing impairment can only arise when the UPOD is used for 2 hours a day for 18 months to two years. By implication, using the product for less than two hours daily will not endanger the user’s hearing capacity. However, the government’s warning appears to refute this implication. Another factor for the courts to consider, is the actual cost of reparations.11 Hot Ideas can escape liability if they can successfully demonstrate that the cost of repairing the double shock defect would be too great for them to cover with the result that they will suffer undue financial hardship.12 In other words, if Hot Ideas can prove that recalls of the product and reparation of the double shock action would cause undue financial hardship, thus may impact Carswell’s claim. However, the defect was discovered and publicized by the government. On the facts, the product has been on the market for at least 20 years so that the products can not be recalled and repaired without much difficulty and expense. Moreover, the double shock action theory is relatively new to the scientific community so that further research will be necessitated, putting Hot Ideas to even greater expense. However, Hot Ideas can not reasonably explain its failure to stop production and marketing of the product once they became aware the product’s defect. It is conceivable that Hot Ideas may argue that scientific and technological information available at the time of purchase by Carswell was insufficient for the defect to be discovered.13 This may be a difficult hurdle for Hot Ideas to cross considering that Carswell purchased the product 7 years ago and the scientific research commenced 10 years ago. Moreover, a scientist in Nigeria had developed the double shock effect some 30 years previously. However, it is open to Hot Ideas to argue that at the time of manufacturing the product sold to Carswell, extensive tests had been used and the defect had not been uncovered. This defence is consistent with Article 7(e) of the EC. This is known as the developmental risk defence and is only meant to encourage innovation and to protect the producer from unforeseen risks.14 The court will likely rule as it did in A and Others v National Blood Authority and Others , that such tests are and were available at the relevant time and that Carswell was entitled to expect that the product was devoid of defects.15 Contributory negligence pursuant to Section 4(1)(f) is also a likely defence for Hot Ideas.16 In other words, Hot Ideas may argue that the damages caused were either partly or entirely Carswell’s own fault. It may be able to establish partial negligence on Carswell’s part, since he was an avid used of the UPOD despite government warnings that extensive use of the product could impact hearing capacity. Taken at its highest, this permits the defendant to argue that the plaintiff, fully cognizant of the risk associated with using the defective product, went on to use the product anyway, assuming full responsibility for the risk. The fact remains however, that Hot Ideas did not issue a warning about the dangers of hearing impairment and the government’s warning would not have relived them of that responsibility. At the very least, Hot Ideas will be found at least partially responsible for Carswell’s hearing defect. Part B Question 2 The case of Lister v Hesley Hall [2001] 2 All ER 769 broadens the scope and range of vicarious liability in respect of employer’s responsibility to minimize the risk of child abuse in schools and other like institutions.17 On the facts of the case, a boy who had been housed by the defendant, a disciplinary institution for children, had suffered psychiatric injury as a result of sexual abuse by an employee of the defendant. The court found that the employee had acted in the course of his employment, thereby making the defendant vicariously liable. The court introduced two broad ratios, the sufficient connection and the non-delegable duty ratios.18 In other words, it will be difficult for an employer to escape liability for child abuse on the part of an employee over whom the employer has control and that responsibilities for safeguarding the welfare of children under the employer’s control is a non-delegable duty. The court’s analysis of the sufficient connection ratio broadens the concept of vicarious liability by introducing primary and secondary liability into the law of tort. This broad application of liability is in danger of granting too wide a discretion on courts seized of matters involving vicarious liability so as to create inconsistent and unpredictable outcomes. The House of Lords explained that the abuse in Lister’s case was so closely connected to the nature of the employment that it was fair, reasonable and just to hold the employers accountable.19 In other words, the court was stretching the ambit of vicarious liability out of what could have only been deemed a moral responsibility. That moral responsibility stemmed from what ought to have been the law rather than what the law actually was. Obviously, outraged by the sexual abuse of the child in the defendant’s care, the court construed the principles of vicarious liability so as to extend it to the employer when it could not have applied under the doctrine as it stood. This broad extension of vicarious liability has the potential to create serious difficulties for employers in the future. As Case explains, the introduction of the terms, fair, just and reasonable into the law of vicarious liability is problematic because it lends itself to the suggestion that courts can find an employer vicariously liable if for no other reason than they ought to be held accountable.20 In other words, Lister permits concepts of moral responsibility to determine liability for tortuous conduct under the principle of vicarious liability, at least in regard to protecting the welfare of children. Case argues, and correctly so, that sexual abuse could never be considered a negligent means of conducting one’s duties as employee.21 The non-delegable duty analysis was examined in light of the ruling in Morris v CW Martin [1966] 1 QB 716. In Morris, the court found that employers are responsible for theft of property by employees acting in the course of their employment.22 The ruling was based on the principle that employer’s had a non-delegable duty of care to protect and safeguard the property of their clientele.23 Likewise, employers would be responsible for the harm that befell persons under their care.24 This broad extension of vicariously liability was perceived by the House of Commons Home Affairs Committee to have the potential to open the floodgates of bogus complaints of child abuse.25 The introduction of moral responsibility into vicarious liability certainly broadens the extent to which employers may be held liable for abusive conduct toward children. With the wider possibility of liability, it is possible that frivolous and unfounded claims are more likely to be lodged. It is this broad approach to vicarious liability by the Lister ruling that makes such a reasoning entirely impractical. Bibliography A and Others v National Blood Authority and Others [2001] 3 All ER 289 Anns v Merton London Borough Council [1978] AC 728. Caparo Industries Plc. v Dickman [1990] 1 All ER 568. Case, Paula. (2007) Compensatinig Child Abuse in England and Wales. Cambridge University Press. Clark, A. “The Conceptual Basis of Product Liability.” MLR (1987) 48, 325. Consumer Protection Act 1987. Council Directive 85/374/EEC. Donoghue v Stevenson [932] AC 562. European Commission v UK [1997] All ER 481. Glasgow Corporation v Taylor [1922] 1 AC 44. House of Commons Home Affairs Committee.(22 October, 2002) “The Conduct of Investigations into Past Cases of Abuse in Children’s Homes.” Fourth Report. Available online at: http://www.publications.parliament.uk/pa/cm200102/cmselect/cmhaff/836/83602.htm Retrieved 9 March, 2009. Lister v Hesley Hall [2001] 2 All ER 769. Markesinis, B.S./ Deakin, S.F. (1992) T”he Random Element of their Lordships Infallible Judgement: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy.” The Modern Law Review. Vo. 55, 619. Morris v CW Martin [1966] 1 QB 716. Newdick, C. “Liability for Defective Drugs.” Law Quarterly Review (1985) 101. Occupiers Liability Act 1957. Phipps v Rochester Corporation [1955] 1 QB 450. Reich, N. “The Product Liability Debate – Continued.” (1991) 14(1) Journal of Consumer Policy, 1-6. Richardson v LRC Products [2000] PIQR 164. Rogers, W.V.H.(2002) Winfield and Jolowicz on Tort. 16th Edn. London: Sweet and Maxwell. Rose v Plenty [1976] 1 All ER 97. Stapleton, J. (1994) Product Liability. Cambridge University Press Stoppa, A. “The Concept of Defectiveness in the Consumer Protection Act 1987: A Critica Analysis.” (2006) 12(2) Legal Studies, 210-226. Wheat v E. Lacon and Co. Ltd. [1966] 1 All ER 582. Worsley v Tambrands [2000] PIQR 95. Yewens v Noakes (1880) 6 QBD 530. Table of Statutes Consumer Protection Act 1987. Council Directive 85/374/EEC. Occupiers Liability Act 1957. Table of Cases Caparo Industries Plc. v Dickman [1990] 1 All ER 568. Donoghue v Stevenson [932] AC 562. European Commission v UK [1997] All ER 481. Glasgow Corporation v Taylor [1922] 1 AC 44. Lister v Hesley Hall [2001] 2 All ER 769. Morris v CW Martin [1966] 1 QB 716. Phipps v Rochester Corporation [1955] 1 QB 450. Richardson v LRC Products [2000] PIQR 164. Rose v Plenty [1976] 1 All ER 97. Wheat v E. Lacon and Co. Ltd. [1966] 1 All ER 582. Worsley v Tambrands [2000] PIQR 95. Yewens v Noakes (1880) 6 QBD 530. Read More