Mrs Sharma's Cause of Action against Toys4U, Megastores, and Chen Organization - Case Study Example

Mrs. Sharmas cause of action against Toys4U, Megastores and Chen Organisation The relevant facts are that Mrs. Sharmas child, Pritam, purchased a toy from Toys4U. This was a toy missile, and Pritam received it on his 10th birthday. Mrs. Sharma apparently did not inspect the toy before giving it to Pritam, and Pritam launched the toy in the house. The toy hit a lamp shade, breaking the shade and lodging glass in his head. The first question is in regards to Mrs. Sharma. Her son, Pritam was injured by an apparently defective toy. To answer this question properly, we first must ascertain all the players in this scenario. We have Toys4U, who is the retailer of the toy in question. We also have Megastores in Cornwall, who supplied the toy to the retailer. And we have the Chen Organisation in China, who manufactured the toy. Also, it must be noted that Mrs. Sharma has two different causes of action, one based upon contract and one based upon torts. The tort cause of action is based upon product liability. The rule regarding product liability can be found in Donoghue v. Stevenson, a famous 1932 case that stated that was the first case to establish that a manufacturer of goods and services owes a duty of care to all consumers of the product. It is special to note that there is no need for privity, in other words, the duty of care is not just owed to the person to whom the the manufacturer has a contractual obligation. Such as in the case of Donaghue, the basic facts are that a patron of a soda shop drank a ginger beer that had the remains of a snail in the beer. She sued, and, even though she did not purchase the drink, she won. She did not have a special contractual relationship, but this was not dispositive in this case.1 While Donaghue grounded product liability actions in negligence theory, this is no longer the case. The rule regarding product liability is one of strict liability now. This rule began in 1936 with the case of Grant v. Australian Knitting Mills2, in which the defendant was held liable to the plaintiff for underwear that had too much sulphite, but Commission directives from the Pearson Commission was not enacted.3 These cases and directives led to the Consumer Protection Act 1987, which governs product liability now. This was promulgated to enact the European Community Directive on Liability for Defective Products 1985.4 The Consumer Protection Act 1987 (hereinafter “CPA”) states that “where any damage is caused wholly or partly by a defect in the product, every person to whom subsection (2) below applies shall be liable for the damage.”5 The act goes on to say that those liable include producers of products; anybody who has held himself out to be the producer of the product, by putting his name on the product or using a trademark; any person who has imported the product in the course of business. Moreover, the supplier of the product will be liable if the injured party asks the supplier to identify one of the parties in subsection 2, the request is made within a reasonable time, and the supplier fails to comply with this request or identify the supplier.6 However, the CPA only applies if the product is defective. If the product was not defective, but was just damaged in transit by Megastores, then the CPA would not apply, and she would have to proceed on simple negligence theory. Megastore had a duty to deliver the toy intact, Toys4U had the duty not to sell broken toys, the fact that Toys4U did sell a broken toy was a breach of that duty, this caused the injury. However, one must proceed with the assumption that the toy might be effective, therefore the CPA would be in effect. Even though the CPA is in effect, there are other rules that are also still in effect, from before the CPA was enacted and after . For instance, Spartan Steel & Alloys v. Martin & Co. [1972] 3 All ER 557, states that a claimant in a products liability case can only recover for personal injury, physical damage or economic loss.7 Without proof of personal injury or physical damage, one cannot recover. In other words, a claimant cannot recover for pure economic loss.8 Moreover, if a claimant misuses the product, then the manufacturer is not liable.9 Moreover, even though the CPA does not necessarily hold distributors of a product liable, Watson v. Buckley, Osborne, Garrett & Co.10states that a distributor can be liable if her or she is grossly negligent. In other words, even if the claimant in this case cannot recover from the distributor under the strict liability formula, she might be able to recover in a negligence action, if the distributor was grossly negligent. The first actor that will be examined is Toys4U. They are the retail distributor, thus they might not be liable, either under the CPA or under a negligence theory. Under the CPA, Toys4U would be liable if Mrs. Sharpa asks them, within a reasonable time, to identify the producer of the toy, and Toys4U fails to do so. There is no evidence that this is the case, so Toys4U, under the facts that I have now, would not be liable under CPA. Would they be liable under a gross negligence theory? This might be a possibility, if they were held to be grossly negligent. For instance, they knew that the shipment of toys had some mishaps with a forklift, as two toys were damaged. Moreover, a third toy was damaged in transit. So, Toys4U was aware that there was a problem with the shipping of the toys. Did they inspect the remaining toys before putting them on the shelf? If they did not, then they might be held liable for gross negligence under the Watson rule. They were aware that there might be a problem, and did nothing about it. As for Megastores, they, too, are a supplier and distributor. They would possibly be liable for the same reasons Toys4U would be liable. If Mrs. Sharpa asks them for the name of the producer, and they do not give it, they would be liable under CPA. A more likely ground for liability would be under the Watson rule – they might be held grossly negligent. After all, they were the ones who actually damaged the toys, at least this is what is apparent by the facts. Their forklift driver damaged the toys, and they damaged the third one in transit. At any rate, the toys arrived damaged, so Megastores must have been the one that damaged them. Therefore, they might be held liable for gross negligence for damaging the fourth toy, the one sold to Mrs. Sharma, as they were the ones who damaged the toys. The Chen Organisation in China would also be liable under the CPA, as the CPA states that “any person who has imported the product in the course of business” would be liable for product liability.11 But this is only if the product was defective – if the product was not defective, but was simply damaged by the Megastore, then Chen would not be liable. Are there defences? Did Mrs. Spartas son have an injury, or was there pure economic loss? He had an injury, therefore the rules in Murphy and Muirhead do not apply. Did she misuse it? Pritam possibly did, if the warnings stated that the product was not to be used indoors. An adequate warning will discharge a manufacturers liability.12 It is probable that a toy missile was not meant for use inside the house, therefore this defence might get everybody off the hook. And, if the toy was misused, then the defect in the toy might not have caused the injury, therefore causation would be lacking.13 Causation must be proved, even under CPA. And there is a duty to reasonably inspect the product before use.14 It does not sound like Mrs. Sharma inspected the toy at all, as Pritam opened the toy and assembled it. If she did inspect it, she might have seen the defect. So, this might be a defence as well. Mrs. Sharma also possibly has an action in contract. There are three different acts that govern this – the Sale of Goods Act 1979; Supply of Goods and Services Act 1982; and the Sale and Supply of Goods Act 1994. The Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 both state that there is an implied term about quality, and that is that the goods supplied under contract are of satisfactory quality, if the seller sells goods in the course of business.15 By this, it means that a reasonable person would regard the quality as satisfactory and if the transferee is a consumer, “the relevant circumstances mentioned in subsection 2A above include any public statements on the specific characteristics of the goods made about them by the transferor, the producer or his representative, particularly in advertising or on labelling.”16 In this case, it is unclear if the product was of satisfactory quality. As noted before, Pritam might have misused the product, which is what caused it to shoot wildly through the air. It was in the house. If he would have used it outside, like it was intended, then the product might have worked fine. However, it is also possible that the product was not in satisfactory condition, especially since it came in a shipment where other missiles were broken by various mishaps. If a reasonable person would say that the missile was not satisfactory, then Mrs. Sharpa and Pritam might have a cause of action under the Acts above. Amandas cause of action against Toys4U Now, onto the case of Amanda and her cause of action against the store. She applied for work at the Toys4U and interviewed for it, and did not get the job. It is unclear as to why that is, as the facts are pretty bare. But, assuming that the reason why she did not get the job was because she was a woman, then she would have a cause of action under the “Sex Discrimination Act 1975.” 17 The SDA states as follows “A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if (a) on the ground of her sex he treats her less favourably than he treats or would treat a man, or (b) he applies to her a requirement or condition which he applies or would apply equally to a man but (i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and (ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and (iii) which is to her detriment because she cannot comply with it.18 Moreover, subsection 6 of the act states that “It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman (a) in the arrangements he makes for the purpose of determining who should be offered that employment, or (b) in the terms on which he offers her that employment, or (c) by refusing or deliberately omitting to offer her that employment.”19 As I stated above, it is unclear from the facts if the reason why Amanda was refused employment was because she was a woman. But if that is the reason why Toys4U did not hire her, then she would have a cause of action under the SDA, as stated above. BIBLIOGRAPHY Aswan Engineering v. Lupdine Ltd. and another [1987] 1 All ER 135 Donoghue v. Stevenson, [1932] AC 562. European Community Direcgtive on Liability for Defective Products 1985. Consumer Protection Act 1987. Read More