Consumer Law Coursework - Case Study Example

Car Martha bought the car through dealer's misrepresentation that it was in 'A1' condition with just only one previous owner. Both were false ments since the car had been involved in high speed collision and also had several owners earlier. This is contrary to the prescribed 'A1' condition for the car. Because of serious damages it suffered earlier, though repaired, vehicle was not in sound condition and swerved to the side of the road and hit against a stationary lorry. The buyer could not know its true condition unless she had driven it for some time though she had made a test drive before agreeing to purchase. The driver who was an expert could detect the bad condition of the car but after the purchase and payment. The sales man also did not wash the car before delivery contrary to his promise. His liability arises for having sold a defective car fraudulently, for the damages arising out of the accident occurred after delivery and for not having valeted the car before delivery. Second hand goods including cars came under the purview of Consumer Protection Act 1987 through amendment by General Protection Act 2004. Hence second hand cars are subject to the same terms as they apply to new cars. Martha as a consumer can expect the quality to be satisfactory as per prescribed standards applicable to that good under section 14 of Sales of Goods Act 1979 as substituted by section 1 of Sale and Supply of Goods Act 1994.and also section 3 of Sale and Supply of Good to Consumers Regulations 2002. Accordingly, the car bought by Martha should be fit for the purpose, safe enough and durable as claimed by the seller at the time of sale. Martha can claim full refund of the value paid and she make an immediate complaint. No time should be lost since the seller can not say that the car might have been mishandled by the buyer after the purchase. But the witness of the driver who drove the car for delivery to Martha can always testify the condition at the time of delivery. If Martha returns the car within a maximum allowed period of six months, she need not prove that car was faulty at the time of sale. If the seller is not wiling to take back, the burden is on him to prove that it was not defective at the time of sale. Martha should make sure to initiate legal proceedings immediately in case of the seller's refusal, though a claim can be lodged within six years. If the seller agrees for the repair and the repair still does not set right the defects, Martha can claim full refund though Martha can stick to demanding full refund since the seller has sold a rogue car fraudulently. In case of seller's non-cooperation, she can seek advice from local Citizens' Advice Bureau for legal action in small claims court and for further recovery action after the claim is allowed by the court. She can also approach Retail Motor Industry Federation, The Vehicle Builders and Repairers Federation or MVRA Ltd as 'A1' condition for the car may be a standard prescribed by the trade for immaculate condition. Besides, section 14 of Trade Descriptions Act 1968 makes it an offence if false statement is made for the condition of the goods sold by the dealer. The local authority of trading standards department should also be approached for lodging her criminal complaint against the seller/dealer of the car. There is provision under section 75 of the Road Traffic Offences Act 1988 for making a complaint against the seller for selling an unsafe car.1 In Bartlett v Sidney Marcus (1952)2, Lord Denning had stated that in case of second hand cars, the buyer should be aware of the prospect of encountering defects any time after the purchase and hence should not buy without an express warranty as otherwise the buyer can not have any remedy in law. The consumer must apply the usability test by ensuring that car should be fit for the purpose that is to ride along the road. Earlier usability test to establish merchantable quality was being applied for second cars for their road worthiness rather than being wholly perfect for their use. In the present case, 'A1' condition can be interpreted as even as a condition rather than warranty. As the car is not road worthy, it fails even the usability test. Subsequently in Shine v General Corporation Ltd (1988)3, the one year old FIAT X19 car which had been advertised as 'superb' and the owner also had orally claimed it as a 'nice car, good runner, no problem' and sold it for 4,400. But since it turned out to be a condemned car by the insurance company due to an accident of submerging in water which however was not known to the seller, its merchantable quality was questioned. It was held by the appeal court to be not of merchantable quality at the time of sale based on the facts and that plaintiff bought a rogue car and added that no body would knowingly even touch it even with a barge pole. It should serve as form of investment to the buyer for future disposal. In an another case of Burnley Engineering Products ltd v Cambridge Vacuum Engineering Ltd (1997)4 the plaintiffs who had purchased an electron beam welding machine in August/October 1991, wanted to return it in September 1992 by a public notice to the defendants and asked them to take it back. They also asked for refund of the price paid. As it was not agreed to by the defendants, the plaintiff filed a writ petition in the court for ordering rejection and refund. However, the court ruled favouring defendants for the reason that the goods were returned after the prescribed time of September 1992 by which time the bedding down and commissioning of the machine would have extended. Hence it is essential that the buyer must return the goods within the prescribed time in spite of initiating any correspondence in that connection. This means the court should be approached within the time for remedy. As such Martha should not delay in taking further action. All Seasons (a) Summer House. All seasons refused refund for the summer house but offered that it would relay the floor. It would cost Jim another 2,000 for relaying the floor himself but the summer house will be damaged while relaying as advised by another company. Hence there is no guarantee that the summer house would remain intact while relaying the floor. The activity of All Seasons being the supply of construction materials, it would come under Section 2 of Consumer Protection Act 1987 as it has included construction materials but only excluded buildings. The summer house in the installed condition is now unsafe and can cause damage to life and property due to faulty flooring on which it is rested. Even though summerhouse before installation had been fool proof, it has now been rendered defective and hence All Seasons is liable for strict liability. By holding out as a manufacturer or supplier, All Seasons is liable under section 2 of the Act for product defects. It is not correct to say that All Seasons is justified in refusing a refund as though the summer house is not defective. As building is excluded from the Consumer Protection Act, summer house should be interpreted as having been brought as a building part and erected and hence can only be construed as a building material and a case should be made out that All Seasons is refusing to take back the summer house only under the pretext of claiming it as a building as not coming under the Consumer Protection Act.. By claiming on the notice board that their staffs can undertake expert construction, they have made a warranty and for violation of warranty, they are liable for damages also. Hence Jim is advised to file claim for full refund of money paid for the Summer House and expenses incurred for laying the concrete floor and at the same time asking the company to take back the summer house. Besides damages can be claimed for making the wedding anniversary celebrations unpleasant. (b) Garden Furniture The Garden furniture's jutting out nails have cut Jim's finger making it actionless any longer. Besides wood was not of good quality. All Seasons have violated section 2 of Consumer Protection Act 1987 since no negligence on the part of the company All Seasons need to be present as strict liability has been prescribed for supplying defective products. Besides, section 75 of the Sale of Goods Act also would be attracted for supplying an unsafe product. Jim has made contributory negligence as far as injury to his finger is concerned by attempting to set right the jutting out nails and hence he will be proportionately not eligible for the cost of treatment of injury caused to his finger. All Seasons is not justified in refusing refund for the furniture either, because garden furniture they supplied is defective and unsafe for want of expertise. Under the circumstances Jim can claim against All Seasons for damages for personal injury he sustained because of the dangerously defective furniture with the jutting out nails besides refund of the furniture price. (c) Barclays Card Jim has used Barclay's card for the purchase of summer house and garden furniture. If Barclays may guarantee quality and performance of the goods for which the card has been used to purchase, Jim can make complaint to the Office of Fair Trading for necessary reddressal under Consumer Credit Act. Food poisoning By forgetting to keep the sausage rolls in the refrigerator, the caterer's employee Sarah committed negligence because of which it became contaminated with bacteria and caused mild food poisoning to the guests of Jim and Martha. It is a clear case of negligence. By showing a printed form of contract excluding liability due to negligence or whatever, the caterer is refusing liability. Salmon mousse and sausage were brought in good condition and hence they cannot be called defective products to invoke section 2 Consumer Protection Act 1987 which prescribes strict liability without negligence having to be proved. As catering is a contract for supply of food at a party which would includes serving of the food also to the guests at the party, caterer's responsibility continues till the party ends after which the caterer is expected to clean up the place which the caterer fails to do in the present case. Here the caterer sent employees in inadequate strength contrary to the agreed number and they also arrived late. The terms of contract excluding caterer's liability being unfair, the consumer can invoke section 1 and 2 Unfair Terms of Contract Act 1977 and section 5 of Unfair Terms in Consumer Contracts Regulations 1999 which stipulate that a consumer is not bound by a standard term in contract stated by the service provider if it is unfair. Standard terms are those that are printed in advance and not written at the time of contract. A standard term is unfair if it does not put parties to the contract on equal footing as regards their respective rights Jim and his guests should prefer a complaint of the deficiency in service and resultant loss and personal injury due to food poisoning, against caterer to the Office of the Fair Trading (OFT). It will examine the complaint of the unfairness of the contract terms and take action. According to Section 5 of the amended Unfair Contract Terms Act 1977, for loss or damage occurring pursuant to supply of goods for private consumption while being used by the consumer either due to the defect in the product or the negligence, the supplier concerned is liable irrespective of any express terms in the contract excluding such liability. The Office of Fair Trading will pass an injunction against the unfair terms of the caterer, and thereafter Jim and the guests can proceed against the caterer for damages due to the negligence of his employees under torts. There are also provisions in Food Safety Act 1990, section 7 of which requires 'intent' to be present for implicating some one for food poisoning. Incidentally, it may be recalled that during 1996, 21 people died in Scotland consuming the E-coli contaminated meat from the butcher's shop. Contamination of food by bacteria, virus or toxins, knows as "pathogenic organisms" which when consumed causes food poisoning and it may not be felt by those consuming as there will b no difference in smell or taste indicating food poisoning. Besides, food poisoning can take several hours and even several days to manifest. To be made liable under section 7 of Food Safety Act 1990, intent to cause food poisoning must be proved. Section 8 of the said Act stipulates that rendering food injurious to health, making it unfit for human consumption is an offence, penalty for which is not exceeding 20,000 as fine and /or sentence of not exceeding six months in the Magistrate's court. and penalty is unlimited and sentence is maximum two years before the Queen's court. The supplier can claim having observed due diligence under the Food Safety Act for defending himself. Here because of the negligence of caterer, Jim's guests have suffered food poisoning and they can bring civil action against the caterer for negligence.5 Negligence in service was established in Donoghue v. Stevenson (1932)6 in which case, the consumer who drank from bottle of Ginger Beer found it containing some particles of dead snail due to the manufacturer's negligence.And he suffered in health as a result by having consumed a contaminate d drink. This case established rules for claiming against negligence which are; existence of duty of care, failure to observe that duty of care and resultant damage. Here it can not be denied that the caterer had no duty of care as otherwise he would not have resorted to printing unfair terms on the contract forms. Product supplied with no fitness for the purpose results in failure in the duty of care which the caterer owed to Jim and also to his guests who consumed his product. The caterer made it available in such a fashion that not only Jim but also any one else could eat it. The third condition is damage arising out of the negligence. Here, the damages were illness and cost of treatment and loss of earnings due to food poisoning by contamination to the food consumed by the guests of Jim and Martha. Therefore as per the rules of negligence established in Donoghue case, caterer is liable for negligence. Jim and his would do well to claim damages for hospitalisation and other expenses incurred and loss of earning for the number of days for which they lost wages or other income. Jim is also entitled to claim damages from the caterer for late arrival and failure to clean up the place after the party. Bibliography BERR, Car Sales and Servicing Quick Facts, Accessed 24 April 2008 http://www.berr.gov.uk/consumers/fact-sheets/page38071.html Bartlett v Sidney Marcus (1952) quoted in Mothersole Brenda, Ridley Ann 1999 p 428 Thomson Learning EMEA Burnley Engineering Products ltd v Cambridge Vacuum Engineering Ltd (1997) QBD, quoted in Mothersole Brenda, Ridley Ann 1999 p 428 Thomson Learning EMEA Caterersearch 28 April 2005 Food Poisoning accessed 28 April 2008 < http://www.caterersearch.com> Donoghue v Stevenson 1932 Donoghue (or M'Alister) v Stevenson ([1932] A.C. 562, 1932 S.C. (H.L.) 31, [1932] All ER Shine v General Corp Ltd [1988] 1 All ER 911, quoted in Mothersole Brenda, Ridley Ann 1999 p 428 Thomson Learning EMEA Read More