Consumer Protection Legal Issues - Term Paper Example

 Section I Synopsis The Toys4U case raises the following legal issues; Sale of defective goods, consumer protection legal issues, incorporation of exemption clauses, company directors, and, discrimination. It should be noted that the consumer protection Act 1987 imposes civil liability allowing a claimant who is injured by an unsafe product to sue the manufacturer of the product. The seller can also be sued in cases where the seller may have known the product was defective or was negligent. The Act gives the right to sue any person who is injured by a product, the safety of which was not such as persons generally are entitled to expect. Legal Principles Under the Sales of goods Act 19791, there is requirement for the seller to sell goods of satisfactory quality. They must also be fit for the buyer’s purpose and must correspond with any description by which they were sold. If a buyer of goods is injured because the goods sold by a business were not of satisfactory quality, the Sale of goods Act will provide the buyer with a remedy against the seller. (Source should be included referring to the law). As regards the implied terms to the quality of goods, there can be no exclusion of liability under s.13, s.14 that is satisfactory quality, fitness for particular purpose. The clause further expresses the liability of any individual involved within the supply chain as long as the party intentionally refuses to disclose the information to clients2. If more than one of these people are liable they are jointly liable. It should be noted that retailers are liable to the purchasers of any defective goods under the Sale of goods Act 1979 even if they are not the manufacturers of the defective goods, (Abbott, Pendebury &Wardman, 2002, p. 154). S.3 of the Act provides that products can be regarded as defective if their safety is not such as persons are generally entitled to expect, and that safety embraces not only risks of death or personal injury, but also the risk of damage to property. Product includes cars, toys, bikes, or any other goods3. Analysis In defective goods disputes, the court will consider all the circumstances when deciding whether or not there is a breach in the manner the goods were delivered. Some of the factors raised by the Act are: The way in which the product was marketed, Instructions and warnings issued with the product, reasonable expectations with respect what ought to be done with or in relation to the product and the time at which the product was supplied by its producer to another.”4 The burden of proof is on the consumer to prove that the product was defective (unsafe). In Abouzaid v Mothercare (UK) (2000)5, a 12-year-old boy was injured while fitting a child’s sleeping bag to a pushchair. The sleeping bag, which was manufactured by the defendants, was deigned to be attached to pushchairs by elasticated straps. A metal buckle attached to one of the straps was to be used to attach the elasticated straps to each other. While trying to attach the traps the boy let go of one of them. This caused the metal buckle to hit him in the eye, severely damaging his retina. The court held that the product was defective. It was designed in such a way that an accident such as this could happen. The court of Appeal felt there was no need for the straps to be elasticated and instructions could have warned of the dangers. The risk of injury to the eye, and the seriousness of such injuries, meant that the safety of the product was not such as persons generally are entitled to expect. In Tesco Stores Ltd & Anor v Pollard (2006)6, the court of Appeal again considered the meaning of defective. A 13-month-old toddler had been injured on account of ingesting dishwasher powder. The court of appeal accepted the judge’s findings that the toddler’s mother had not negligently left the bottle open, but did not seem entirely to believe this story. A product is defective under the Act if its safety is not as persons generally are entitled to expect. The dishwasher powder had been in a bottle with a child closure cap, which was more difficult to open than an ordinary screw to bottle. However, the bottle top did not comply with the British standard torque measure. The court of appeal held that the product was not defective. The public would expect the bottle top to be more difficult to open than an ordinary screw top, which it was. Members of the general public were unlikely even to know about the existence of the British standard. Never mind what it required. Mrs. Sharma must be advised that Toys4U may be liable for selling defective toys which they were very much aware from the day they purchased them from Megastones plc. The consumer protection Act 1987 makes it clear that the manufacturers or retailers must satisfy themselves that the goods to be put on the market should be of the required standard. It is also possible that Megastones plc may be liable for damages for knowingly selling these defective toys to Toys4U. Section 5 allows a claimant for death or any personal injury caused by the non safety of the goods. It should be noted that damage to property is only claimable if it causes an individual to suffer a loss of more than £275. The loss may be made up of damages to several items. Any damages to the product in question are not recoverable under the consumer protection Act 1987. Nor is damage to other products supplied with the product in question. Compensation for injury, death and damage to goods must be claimed within three years of the loss suffered. There is an absolute time limit of time of ten years after the date when the product was put into circulation by the producer. The date begins when the producer voluntarily relinquishes control over the product, for commercial reasons, to a person who is not so closely associated with the producer that the two can be regarded as the same person. Mrs. Sharma must also be advised that contributory negligence on the part of the claimant can reduce the damages to be awarded. If Pritam’s injuries were worsened on account of not seeking medial help on time, damages would be reduced. Section 5(3) on excludes liability for loss or damage to business property. Mrs. Sharma must take note that she has a claim for the damage to her property. The Act makes it clear that at the time of the loss or damage, the property must be of a description of property ordinarily intended for private use, occupation or consumption and intended by the person suffering the loss or damage mainly for his own use, occupation or consumption. Toys4U’s letter to Megastones plc on the 5th March purporting to incorporate an exclusion clause on the contract of sale fails as it came late to be incorporated into the contract of sale. The general rule requires that any incorporation of an exemption clause must be done so at the making of the contract rather than in the middle of the contract. Maclntyre, E(2008,p.346)7 clearly indicates that :”…exemption clauses are terms which exclude or limit, or purport to exclude or limit, a liability which would otherwise arise at common law, or by statute, or under the terms of the contract” On the issue of changing the company name, it may be argued that the three directors’ intention to change the company name from Toys4U to Toys4Everyone Ltd is intended to escape responsibilities and liabilities to the customers. It is important to mention that the Companies Act 2006 provides guidelines how this can be achieved. The directors have no exclusive power to change the company name without the mandate of the members. “Subject to its articles, a company may make application to the Registrar in the prescribed form to change its name (including the required part of its name (if any) pursuant to section 11) or its foreign character name.”8 Question II An applicant under subsection (1) shall be authorized-(a) by a resolution of the company’s members or; (b) unless the articles provide otherwise by the directors.”9 As regards to Amanda’s failure to secure a Job with Toys4U Ltd, the Sex Discrimination Act 1975 as amended by the 1986 Act provides the guidelines. The only possible claim available may be the indirect discrimination. In Steel v Union of Post Office workers & GPO (1978)10, prior to the sex discrimination Act women could only be ‘temporary’ full-time postmen. After the Act was passed women could become full-time postmen but walks of rounds were allocated on the basis of service as a full-time postman. It was held that failure to make the allocation on length of service irrespective of whether it was temporary or not was discriminatory. Where an employer seeks to have a certain age to be employed, Abbott, K, Pendebury, N, & Wardman, K (2002, p.552) 11states:” ….it’s purely discriminatory.” In Price v Civil Service Commission (1978)12, the civil service required candidates for the position of executive officer to be between seventeen and half and twenty-eight. Belinda Price complained that this age bar constituted indirect discrimination against women because women between these ages were more likely than men to be temporarily out of the labor market having children or caring for children at home. The employment appeal tribunal decided that the age bar was indirect discrimination against women. The court held that the words ‘can comply’ in the legislation must not be construed narrowly. It could be said that any female applicant could comply with the condition in the sense that she was not obliged to marry or have children, or to look after them-indeed, she might find some one else to look after them or, as a last resort, put them into care. If the legislation was construed in that way it was no doubt right to say that any female applicant could comply with the condition. However, in the view of the court, to construe the legislation in that way appeared to be wholly out of sympathy with the spirit and intention of the Act. A person should not be deemed to be able to do something merely because it was theoretically possible, it was necessary to decide whether it was possible for a person to do in practice as distinct from theory. She must be however, advised that less favorable treatment alone during the interview or after is insufficient to found a claim. She must go on to show that she did suffer a detriment (which means being put at a disadvantage), under SDA 1975, S.6 (2) (b), and RRA 1976, s.4 (2) (c)13. Often, it is not difficult to find that the complainant has been put at a disadvantage, by not being appointed to the post applied for, or not getting the promotion or transfer. One particular problem with finding a detriment is whether the test is objective or subjective, that is, should the individual’s views be considered, or should the test be whether a reasonable worker would consider that they had suffered a detriment? In Amanda’s case, could not having the ‘right attributes’ amount to a detriment? Amanda may be further advised that allegations of discrimination may be subject of a complaint to an employment tribunal which may, among other things, award monetary compensation. In addition, the appropriate commission may carry out formal investigations into her discriminatory complaint. The commission may issue non-discrimination notices requiring the employer to comply with the relevant legislation. In Shamoon v Chief Constable of the Royal Ulster Constabulary (2003)14, the House of Lords held that the latter was the correct approach. Further, it was not necessary to find an economic or physical disadvantage to find a detriment. The detriment in Shamoon arose when a police inspector was relieved of the duty of conducting annual appraisals with junior officers. In conclusion it would be submitted Amanda may find it hard to prove discrimination to the employment tribunal on merely basing her claim on not having the right attributes. It can be argued that every employer will have their selection criteria, and that criterion does not make them discriminatory. References Abbott, K., Pendebury, N. &Wardman, K., (2002) Business Law. London: Continuum International Publishing Group. Abouzaid v Mothercare (UK) (2000) WL 1918530. Chantry, L. () Law for Business. Oxford: Oxford Brookes. Consumer Protection Act 1987, s.2 (3) Consumer Protection Act 1987, s.3 (2) Maclntyre, E. (2008) Business Law, 4th Ed, London: Longman Publishers. Price v Civil Service Commission (1978)1 All ER 1228 Robert, W. E. J. D. (2009) Business Law (Barron’s Business Review Series). London: Barron’s Educational Series. Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 11. S.14 (1), CA2006. S.14 (2) (a) (b), CA 2006. Steel v Union of Post office workers & GPO [1978] Tesco Stores Ltd & Anor v Pollard (2006) EWCA Civ. 393. Read More