How Amanda Sharma Bought from Toys4U the Polaris Missile - Case Study Example

FACTS On the 7th of March, Mrs. Sharma bought from Toys4U the ‘Polaris Missile’, a toy manufactured in China. Mrs. Sharma purchased the toy for the tenth birthday of her son, Pritam. When Pritam pressed the trigger of the missile holder after opening and assembling the toy one day after it was purchased, the toy missile shot wildly through the air. It smashed a glass ceiling lamp shade, injuring Pritam’s scalp through its glass fragments. This led Toys4u to take the remaining stocks of the toys and sent it back to where they ordered it—Megastores stating that “we shall be holding you responsible for any claims brought against us by any customers who have suffered loss as a result of use of the toy.” In a different case, Toys4U posted an advertisement in the newspaper a vacancy for a sales assistant. Amanda applied for the job. She was called for an interview at the store. After the interview, Amanda was told that her application failed since she did not have the ‘right attributes.’ MRS. SHARMA’S CASE The Sale of Goods Act 1979 specifically section 14 protects purchaser of goods against latent defects. In the outset though, there is a need to determine whether the transaction between Mrs. Sharma and Toys4U falls within the law’s protection by establishing that the sale was made “in the course of a business.” While this is not defined in SoGA 1979, UCTA 1977 explained that the phrase in the course of business indicates that the sale be an integral part of the business (Koffman & Macdonald, 2007). In this case, Mrs. Sharma bought the toy in Toys4U, a retailer selling toys in the normal course of its business. Quite clearly, the transaction was not a mere private sale. The claim which Mrs. Sharma may file against Toys4U involves the breach of implied terms in the purchase of the toy Polaris Missile under section 14 of the Sale of Goods Act 1979. There may be liability by Toys4U with respect to its implied conditions to the product’s ‘fitness for purpose’ and ‘satisfactory quality’ since it was the proximate cause of Pritam’s injury. Satisfactory quality Section 1 (1) of the Sale and Supply of Goods Act 1994 which amended s. 14 (2) of SoGA 1979 provides that "where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of satisfactory quality” (cited in Chantry, n.d., p. 130). As laid down in s.1(2A) of the 1994 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” (cited in Oxford Brookes University, n.d.a). The problem with quality is usually manifested in some of its aspects, which if applied in this case include the “fitness for all the purposes for which goods of the kind in question are commonly supplied” and “safety” (Sale and Supply of Goods Act 1994, s.1(2B)). It has been clarified that dangerous goods are definitely not satisfactory. Indeed, it is quite implausible to consider an object ‘satisfactory’ or ‘merchantable’ if it is not safe for its normal use. Thus, Kelly, et al. (2005) explained that “safety is now a specific factor in assessing satisfactory quality, and it would appear that any matter which results in the goods being unsafe will fall within s. 14 (2)” (p. 200). In Mrs. Sharma’s case, there is justifiable basis of the claim that the goods she bought for her son is not of ‘satisfactory quality.’ It must be noted that the Polaris Missile is a toy intended for minor children. When Mrs. Sharma’s son Pritam played with it by pressing the trigger of the missile holder, it malfunctioned—wildly soaring through the air, shattering the glass ceiling lamp shade and causing injury. The toy was clearly a danger to a child’s safety as it could even smash a glass object. There may however be exceptions to the requirement of ‘satisfactory quality.’ Section 2(2C) of the 1994 Act provides that this does not apply to “any matter making the quality of goods unsatisfactory: (a) which is specifically drawn to the buyers attention before the contract is made, (b) where the buyer examines the goods before the contract is made, which that examination ought to reveal, or (c) in the case of a contract for sale by sample, which would have been apparent on a reasonable examination of the sample” (cited in Chantry, n.d., p. 130-131). However, Toys4U may not be able to invoke any of these exceptions having failed to even mention any ‘matter’ that may affect quality. Furthermore, Mrs. Sharma neither made any inspection nor a cursory examination of the toy before buying it. Even assuming that she made a cursory examination that would deny her of the remedy under s. 14 (2), it would not have been possible for her to notice a defect or danger, not even the fact that the toy was made in China. With respect to the time factor, a seller cannot escape liability even if the unsatisfactory quality manifests itself some time after the sale. In this case, the malfunction occurred one day after the purchase, thus this short span of time may even support the allegation of the toy’s defect at the time of purchase. Fitness for purpose Unless otherwise stated, it is implied that a consumer buys something for the normal purpose in which it was made for. Consequently, the Sale of Goods Act 1979 as amended protects a buyer by expressly providing in s.14(3) that "where the seller sells goods in the course of a business and the buyer...expressly, or by implication, makes known...to the seller...any particular purpose for which the goods are being bought there is an implied condition that the goods supplied under the contract are reasonably fit for that purpose whether or not that is the purpose for which such goods are commonly supplied, except where the circumstances show that the buyer…does not rely, or that it is unreasonable for him to rely, on the skill or judgment of that seller or dealer." It must be noted that the seller is under strict liability to make sure that the goods are ‘reasonably fit’ for its purpose, thus absence of negligence is not a defence. The meaning of ‘fit for the purpose’ is judged in a case to case basis. Although the determination of whether the goods are ‘fit for the purpose’ is a question of fact, the surrounding circumstances may be considered to explain what could be reasonably expected of an object. For instance, Godley v Perry (1960) has held that in buying a toy catapult, the buyer need not specifically state the purpose for which the item was being purchased (cited in Abbott, Pendleburry & Wardman, 2007). In this case, the court may therefore look at the fact that the object bought was a toy. It could then be reasonably expected that it was not dangerous to minors. The malfunction of the toy missile could have even harm adults judging on the damage it caused. This condition though does not apply when a purchaser relies on his/her own judgment. However, s/he may still be considered to have relied on the skill and judgment of the seller despite the fact that the buyer personally chooses the product (Kelly et al., 2005). Thus, although Mrs. Sharma herself selected the ‘Polaris Missile’ in the store shelf, she had reasonably expected that it would not in any way injure Pritam. Buyer’s Remedies The breach of implied term by the seller gives the buyer a right to rescind the contract, that is to reject the goods and ask for damages. Under ss. 34 and 35 of SoGA 1979 as amended, the buyer may reject or return the goods and claim refund of the purchase price. Considering that in this case the breach does not seem so ‘slight’, rejection may not be refused by the court (Kelly et al., 2005). Mrs. Sharma may likewise claim for damages to indemnify her son of the injury and for the damage to their furniture caused by the toy’s malfunction. Seller’s Right The seller has a legal recourse against its immediate supplier despite the strict liability prescribed under the law for breach of s. 14 (3). Thus, Toys4U may seek indemnity from Megastores for the breach of implied condition. AMANDA’S CASE Recruitment and Selection Amanda has potential discrimination claims against Toys4u which may fall under several grounds depending on the type of discrimination she experienced. The law protects prospective employees against discrimination based on sex, race, religion or belief, and disability. It is unlawful for an employer during the pre-employment stage to discriminate on these grounds in determining ‘who should be offered employment,’ or ‘in the terms on which an offer of employment is made,’ or ‘by refusing or deliberately omitting’ to offer employment’ (Lewis & Sargeant, 2004). These may occur during the recruitment and selection process such as in advertisements, application forms, and interviews. For instance, advertising job vacancies should be gender neutral since a person may file a complaint if s/he has basis that it indicates an intention to discriminate (i.e. sexual connotations in the job description) (SDA, s.38). Furthermore, if application forms may reasonably be understood to signify discrimination when questions have no relevance to the job. Subsequent to these, interviews may also indicate discriminatory intentions. What is however of utmost consideration in the case at hand is the potential discriminatory act by the interviewer in assessing the applicant for the post. Interviews may result to potential discriminatory claims when questions are phrased in such a way that would reveal an intention to discriminate based on sex, race, religion or disability. In the case under consideration, although there were no indications of discrimination in the application forms or in the advertisement (i.e. the description ‘sales assistant’ is gender neutral), Amanda was told that she failed to have the ‘right attributes’ right after the interview. This conduct of the interviewer of outrightly denying her application ‘after the interview’ may suggest some badges of discrimination. In the case of Brennan v. J.H. Dewhurst Ltd. (1984) I.C.R. 52, the Employment Appeal Tribunal held that “in the arrangements he makes in section 6(1)(a) encompasses more than setting up the arrangements, for instance, for interviewing applicants for a job. The phrase also includes the manner in which the arrangements are operated; for instance, the way the interviewing arrangements are in fact conducted” (n.p.). If for instance a woman was ‘filtered out’ by the interviewer at an early stage during the interview, disregarding the final selection process that was supposed to be made by a more senior manager, the arrangement made in deciding who shall be employed is discriminatory (Chandler, 2003). In other words, the arrangements in the interview process were unlawfully conducted so as to discriminate against women. Amanda may therefore claim that she was discriminated against as seen in the immediate decision of rejecting her application. She may argue that the alleged lack of ‘right of attributes’ involves her gender, race, religion or disability, as the case may be. The interviewer may have asked questions which are irrelevant to the job requirements or may have decided not on the merits or the minimum qualifications. Employer’s Liability The employer may be sued by the discriminated candidate. He may be liable for aiding or instructing a person to do the mentioned unlawful acts (Lewis & Sargeant, 2004). Thus, if the directors of Toys4U had something to do with the interviewer’s conduct or significantly aided in the discriminatory act, Amanda may file a complaint before an employment tribunal within three months from the occurrence of the interview. If the tribunal decides in favor of Amanda, it can award unlimited compensation (SDA 1975, cited in Oxford Brookes University, n.d.b). Lawful Defences An employer may altogether deny any claim of discrimination by proving that the selection or the rejection was legitimately based on reasonable criteria. He can likewise for instance show that s/he employed in the past women, disabled, or person’s of different ethnic background. Moreover, an employer may be able to even refuse employment of a candidate on the grounds of sex, race, religion or belief, or disability if there is a ‘genuine occupational qualification’ (GOQ) for the job. For instance, if Amanda’s rejection was based on her being a woman, Toys4u may be able to justify this ‘where the nature of the job needs to be held by a man ‘to preserve decency or privacy’ or ‘where the job entails the employee living/working in a particular internal environment and involves a degree of physical or social contact with a person of a particular sex’ (SDA 1975, s.7). In this case however, there is quite difficulty in proving that Amanda’s sex, race, religion, or disability as the case may be is a ‘genuine and determining occupational requirement’ for a sales assistant. It has to be proven that “having regard to the nature of the employment or the context in which it is carried out” the person does not meet the job requirement based on those grounds which must be founded on legitimate objectives and proportional (Lewis & Sargeant, 2004, p.62). References Abbot, K., Pendlebury, N., & Wardman, K. (2007). Business law (8th ed.). Great Britain: Thomson. Brennan v. J.H. Dewhurst Ltd. (1984) I.C.R. 52. Chandler, P., (2003). Waud’s employment law (14th ed.). United Kingdom: Kogan Page Limited. Chantry, L., (n.d.). Law for Business. Oxford Brookes, In-house text on BV. Kelly, D., Holmes, A., & Hayward, R. (2005). Business law (5th ed.). Great Britain: Cavendish Publishing. Koffman, L., & Macdonald, E. (2007). The law of contract (6th ed.). Oxford: Oxford University Press. Lewis, D., & Sargeant, M. (2004). Essential of employment law (8th ed.). Great Britain: CIPD. Oxford Brookes University, (n.d.a). Law for business, Module 51063, tutorial handout, Oxford Brookes University. Oxford Brookes University, (n.d.b). Discrimination at the workplace and equal pay, Module 51063, lecture handout, Oxford Brookes University. Sex Discrimination Act 1975 (SDA). Retrieved online 17 February 2010 from http://www.opsi.gov.uk/si/si2003/20031657.htm Sale of Goods Act 1979. Retrieved online 16 February 2010 from http://www.opsi.gov.uk/acts/acts1979/pdf/ukpga_19790054_en.pdf Sale and Supply of Goods Act 1994. Retrieved online 16 February 2010 from http://www.opsi.gov.uk/acts/acts1994/PDF/ukpga_19940035_en.pdf Read More