Agreement between Mr Davison and Dream Kitchens - Math Problem Example

Question 1 The agreement between Mr Davison and Dream Kitchens is a mixed contract in that it involves the supply of both goods and services. Dream Kitchens has also subcontracted an electrician. Law regarding this area are Contract & Tort. The main statutory provisions around this scenario are covered under the Consumer Rights Act 2015 (hereafter CRA 2015). Mr Davidson does not like the colour of the units although he concedes that they are what he ordered. If Mr. Davison selected the colour based on a description, an argument can be made that the cream units were not as described, (s.11, CRA 2015) could be made. This will allow him to bypass Dream Kitchens’ likely argument that Mr. Davison selected the colour (s.11 (3b), CRA 2015) or that he viewed a sample (s.11 (2), CRA 2015). Mr Davison may thereafter exercise his right to reject the units (s.20 (4), CRA 2015), which would then entitle him to a refund (s.20 (7a) CRA 2015). This right expires 30 days from the installation (s.22 (3c), CRA 2015). He should however be aware that under s.23 (2a) CRA 2015, Dream Kitchens would be required to effect the changes “within a reasonable time and without significant inconvenience” to Mr Davison. If they fail to do so, Mr Davison is entitled to require a price reduction or exercise his final right to reject (s.24 (5c) CRA 2015). Dream Kitchens may argue that under article 2.5 of the contract1, they are entitled to retain costs incurred to restock the item when goods are returned. This however limits the remedies available to Mr Davison in the event of non-performance, partial non-performance or inadequate performance and is accordingly an unfair term, which the parties cannot be bound to it. The electrician left a hole in which Mr. Davison tripped on and injured his eye. Mr. Davison can bring a claim in tort against the electrician for this injury. Physical injury was reasonably foreseeable, there is a relationship of proximity and it would be fair, just and reasonable to impose a duty of care in this case2. Remedies available to Mr Davison will be general damages pain, suffering and loss of amenity. None of the defences against negligence are available to the electrician, including contributory negligence in light of the fact that he hid the hole with a carpet. As a result of the electrician mis-positioning of the socket and the microwave being installed too-high. Henceforth, it has failed to conform to the contract (s.15 (1), CRA 2015). He can seek to have it repaired under s.23 CRA 2015, although if the electrician is sub-contracted, Dream Kitchens will resist by claiming that repair is impossible (s.23 (3a) CRA 2015) given the location of the socket. If the electrician turns to be sub-contracted, his contract is with Dream Kitchens, Mr Davison can exercise his short term right to reject (CRA 2015, s22) or his final right to reject or demand a price reduction (s.24 CRA 2015) which would treat the contract as at an end. In either case Dream Kitchens has an obligation to refund him (s.20 (7a) CRA 2015). Punjab, one of the workers, suffered electric shock when he flipped a light switch. Punjab could argue that Mr. Davison is an occupier by basis of having “sufficient control3” of the property; that he is a visitor having been permitted to work on the property and that Mr. Davison therefore owes him a common duty of care (s.2 (2) Occupiers Liability Act 1957 (hereafter OLA 1957). The argument will hold that his injury resulted from the “state of the premises”4, irrespective of whether this was because of the old faulty wiring or because of the electrician’s recent work. Mr Davison would like to place the responsibility for the electrocution on the electrician. Even if the electricians work is at fault, Mr Davison will still have to show that he “acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done” (s.2 (4b) OLA 1957) Under these circumstances, the liability would then fall on either Dream Kitchens as the contractors5 or the electrician as the sub-contractor. Mr Davison should also consider reporting the faulty electricity to the regulatory body as this will help formalise where the liability lies. By taking longer than the agreed fortnight, Dream Kitchens are in breach of s.52 and Mr Davison has the right to a price reduction (s.56, CRA 2015) or to seek damages (s.54 (7a), CRA 2015). Since a concurrent duty in tort can exist irrespective of whether there is a contractual relationship between the parties, Mr. Davison is free to choose the remedy which appears to be most advantageous6. This would allow him to seek compensation that will place him in the position he would have been in but for Dream Kitchens over staying the contract. Dream Kitchens will likely resist the attempt to apply tort by claiming that it circumvent the contract agreed between them7. Dream Kitchens is likely to try and rely on article 2.1 of the contract which states that “the duration of the work is only a rough guide” and “start dates are only approximations”. We will argue that firstly this is an unfair term under the meaning of s.62 (4), CRA 2015 because it creates imbalances in rights and obligations at the expense of the consumer. It is also an unfair term under (Schedule 2, Part 1, P.1, CRA 2015) in that it allows Dream Kitchens to unilaterally alter terms on when to begin and how long to take without specifying valid reasons. Article 2.1 of the contract is therefore not binding on Mr Davison (s.62 (20), CRA 2015). Although the quoted price was £20,000, Mr Davison has been presented with a bill for £25,750 with the extra amount being attributed to unforeseen expenses. Although article 2.8 of the contract indicates that extra work may be necessary, it also requires that Mr Davison assent to the work before it commences. Mr Davison did not agree to the additional work and therefore is not liable for the extra expenses as Dream Kitchens claims. Dream Kitchens is likely to point article 2.8 of the contract which terms the £20,000 quote an “estimate” and reserves the right to increase it by 15% to which we will argue that the CRA requires that the settled price be ‘reasonable’. Question 2 After reading through the factual issues of the case to identify the legal issues; It is clear that the legal issues would include consumer rights and tortuous liability. I researched these terms to find the relevant primary and/or secondary sources. The explanatory memoranda attached to the legislation helped me determine the relevance and principles of the laws. I relied primarily on books regarding negotiation methods and on journal articles and online law databases to identify the relevant case law. Question 3 Mr Davison’s goals are to get matching freezer and fridge in cream, to have his kitchen units replaced in a lighter colour if he could be assured that it would not take unreasonably longer and, to have the electrical socket and the microwave repositioned by the electrician and Kitchen Dreams respectively. Kitchen Dreams goals are likely to be avoiding the incurring of any additional expense in replacing any of these items at their cost or having to repeat performance. Regarding his injury, Mr Davison’s goal is to obtain damages from the electrician. With regards to Punjab’s injury, Mr Davison’s goal will be to avoid liability by placing it on the electrician whilst he will likewise be trying to lay it on Mr Davison. Finally, Mr Davison’s goal is to receive compensation for the extra time that it took to complete the work and to have the initial price reinstated, while Dream Kitchens goal is to show that both the extra time and price are within the contract. Question 4 With regard to the kitchen units, the information required from Mr. Davison is whether he selected the colours for the units from a sample, model or description. With regards to the mismatched fridge and freezer, the information goal is to know with as much detail as possible the conversation indicating his preference for chrome was conducted, including when and where. From Dream Kitchens; the information goal will be whether Mr Davison’s chrome preference was recorded and if not, how much they remember of that conversation. I will withhold the fact that Mr. Davison’s memory on this issue is patchy as it would give Mr Arnold’s solicitor room to dismiss the claim. In respect to the eye injury, the information goal from Mr Davison will be to determine how much was spent on medical treatment and how the injury affected his daily life and ability to work. The information goal from the electrician will be to have him admit that he dug the hole and also concealed it with the carpet. With regard to Punjab’s injury, the information goal from Mr Davison will be to determine whether any government bodies have the electricity survey that was conducted on the house. We will also need to know if he took any steps to ensure that the contractor was competent and the work done correctly. We will withhold the survey result unless the electrician explicitly requests it, because disclosing it may shift liability to Mr Davison. Regarding the work taking longer than expected the information-goal will be whether Mr Davison has evidence (in forms of receipts) or otherwise, showing the expenses he incurred as a result. The goal regarding the bill amount will be how much he is willing to pay as a maximum. The information-goal with Mr Arnold will be to establish why he provided the two-week time frame if as he said to Mr Davison “it is quite usual for works to run over”, as well as the evidence of the extra work that was conducted to justify the bill increase. I will also need from Mr. Davison a ranking of his priorities in respect to all the issues raised. Question 5 The plan is to try as much as possible to steer the focus from Mr Davidson’s weaknesses and highlight Dream kitchen’s failure to abide by the contract and their below par skills. For the purpose of the plan, Mr Davidson’s claim contains weaknesses including his own lack of clarity over what he was promised, and his negligence in disclosing the electrical history of the house to both the electrician and Dream Kitchen. Additionally, he did not bring his observations to the attention of Mr. Arnold as soon as he observed discrepancies but rather waited until all the work was done. Dream Kitchen’s failure to abide by the contract can be argued by the fact that by causing injury to Mr. Davidson, the company breeched article 2.12 of the contract. Additionally, the final invoice quoted is beyond the 15% increase quoted in the contract and the client did not approve further work. The plan will therefore revolve around dream Kitchens inadequacies rather than the client’s. The agenda will comprise of the following: - The opening offer to Dream Kitchen will consist of: The kitchen units replaced in lighter colours and, the fridge and freezer replaced in cream or Mr Davison will exercise his right to reject the units and claim a refund. Compensation for the expenses incurred during the extended construction and a reinstitution of the original £20,000 amount. Subsequent offers will concede the kitchen units, and deprioritise the fridge and freezer. The opening offer to the electrician will consist of: the calculated sum of Mr Davison’s pain, suffering, loss of amenity and the cost of repairing the hole in the floor should be paid in full immediately. As well as, that he takes full responsibility for Punjab’s shock. Although this may be a sub-contract, we can leverage the above to demand that he properly reposition the socket at no extra cost immediately. Subsequent offers will concede the socket repositioning and the cost of repairing the hole as it is not indicated in the scenario that Mr Davison is seeking this. The detailed plan is explained in question 1 above. Using the SWOT analysis, Mr Davidson has a number of strengths to back his negotiations. The contract is clearly in support of his claims as to the overpricing of additional services, and the poor workmanship that left a hole in his bedroom resulting in injury breeching article 2.12 of the contract. The final price of £25,750 is clearly beyond reasonable considering the cited additional services were not approved by Mr Davidson under (s.62 (20), CRA 2015). This will place him at a strategic advantage to claim compensation for his injury and disclaim liability for the extra expenses. In terms of weaknesses, Mr. Davidson admits that he is not sure as to the quality and colour of some electronics (fridge and freezer) that he agreed to. Additionally, the poor state of electrical wiring in his house is a strategic weakness that can be utilized by Punjab and Dream Kitchen to undermine his gains from the negotiations. However, he may utilize the opportunity presented by the fact that Dream Kitchen did a rather overall shoddy job (hole in the floor, unrealistic placing of the microwave and sockets, too much time in completing the job, and over pricing) to try to negotiate in his favour. To add weight to this, he may cite potential repeat business from him and a future referee of their work as an incentive for dream Kitchen to grant his wishes. In terms of threats, the fact that Punjab was injured as a direct consequence of Mr. Davidson’s negligence in informing him of the poor electrical wiring will present a huddle in his negotiations and probable compensation. Question 6 WATNA: Kitchen Dreams refuses to replace the units; refuses to replace either the freezer or fridge so that they match; agrees to reposition the microwave at a cost as an “alteration”; refuses to compensation for the extra time taken but renegotiates the bill. The electrician refuses to acknowledge liability for Punjab’s injury and negotiates compensation for Mr Davison’s injury. BATNA: Kitchen Dreams refuses to replace the kitchen units; accepts to replace the fridge in the original requested chrome not cream; accepts to reposition the microwave pending the electrician moving the socket; accepts to renegotiate the bill and makes an offer to compensate for the extra time it took to complete the work. Bibliography Cases:- BSkyB Limited and another v HP Enterprise Services UK Limited (formerly Electronic Data Systems Limited) and another. [2010] E.W.H.C. 86 Bottomley v Todmorden Cricket Club [2004] 1 A.C. 46 Caparo Industries Plc v Dickman [1990] 2 A.C. 605 Ferguson v Welsh [1987] 1 W.L.R. 1553 Henderson v Merrett [1995] 2 A.C. 145 Wheat v Lacon [1966] 1 W.L.R. 279 Acts/Statutory Provisions:- Consumer Rights Act (2015, c15) London: The Stationery Office Occupiers Liability Act (1957, c31) London: The Stationery Office Read More