Case study 1
Sasha’s shelves
The main issues…
1. Can Sasha obtain a remedy for the defective
shelves?
2. Can Baz bring an action in personal injury
against the joiner?
Issue 1, the defective shelves
• Firstly, we can assume that there is a contract between Sasha and
the joiner to construct some shelving in the new house
Under the Supply of Goods and Services Act 1982, Section 4(2):
‘Where the transferor transfers the property in goods in the course of
a business, there is an implied condition that the goods supplied under
the contract are of satisfactory quality.’
And Section 4(2A) states:
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.
What should Sasha say to the joiner?
Because there are nails sticking out of the
shelves, a ‘reasonable person’ would not think
that they are of ‘satisfactory quality’….
So it is likely that Sasha will succeed in bringing
an action against the joiner for breach of the
implied contract term
Breach of contract
The main remedy for breach of contract is an award of money
(damages) to compensate for the claimant’s loss
The Court will aim to put Sasha in the same position as if the
contract had been performed
Sasha expected to get a set of shelves that were fit for their
purpose…
So the court is likely to award her a sum of money based on
the cost of fixing the shelves, or of employing someone else to
put up another set of shelves for her
What other remedies can Sasha get?
Under the Supply of Goods and Services Act 1982,
Section 11M(2):
The transferee has the right—
(a) to require the transferor to repair or replace the
goods;
(b) or…to require the transferor to reduce the
amount to be paid for the transfer by the
transferee by an appropriate amount
So the Court might order the joiner to repair the shelves,
or to give Sasha a refund…
BUT she can’t have both….the law says that you can’t
recover for the same loss twice
Issue 2, Baz’s fingers
Because he is not in a contractual relationship
with the joiner, Baz needs to bring a claim
underthe tort of negligence
To succeed in such a claim, Baz must be able to
prove that:
1. The joiner owed him a duty of care
2. The joiner breached that duty of care
3. The breach caused the damage suffered
Was there a duty of care?
The duty of care in relation to personal injury was originally established by
Lord Atkin’s neighbour test in
Donoghue v Stevenson
Mrs Donoghue drank a bottle of Ginger Beer (bought for her by her friend).
The bottle had the remains of a dead snail in it and she subsequently
became very ill.. Unfortunately, as she hadn’t bought the ginger beer, she
had no claim in contract against the manufacturer.
"The rule that you are to love your neighbour becomes in law you must not
injure your neighbour…You must take reasonable care to avoid acts or
omissions which…would be likely to injure your neighbour. Who then in law
is my neighbour? The answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the
acts or omissions which are called in question."
A duty of care will exist if:
1. That harm was reasonably foreseeable
2. That there was a relationship of proximity
3. That it is fair, just and reasonable to impose a
duty of care
In light of this test, it is likely that a court would
hold that the joiner owed Baz a duty of care.
Was the duty breached?
Issue = did the standard of care exercised by the joiner fall below that
of a reasonable person?
Because the joiner put the shelves up in his capacity as a professional
carpenter, the court will compare his actions with those of a
‘reasonable joiner’
Because the joiner made a ‘total mess’ of putting up the shelves, and
because nails were sticking out, the court is likely to conclude that he
did not exercise the standard of care of a reasonable joiner
The joiner will be held to have breached the duty of care he owed to
Baz
Did the breach cause the damage?
Baz cut his finger on the shelves, and is not able
to work until his hand has healed…
The court will have no problem in finding that
the joiner’s breach caused the relevant damage
What can Baz claim?
Baz will be able to claim damages for:
- The injury to his finger
- Any pain Baz suffered as a result of the injury
- Any earnings that Baz will loose because he
cannot work
Case study 2
Zak’s birthday
The Cake
THE CAKE: “she [Sasha] can’t resist taking a bite… she
suddenly crunches something… and spits out part of her
tooth and a small screw… [Sasha is] in pain and with
terrible toothache…”
Statutes and common law that apply
- Statute
Sasha bought the cake so he has a contract with the baker so
can use this act.
Sale of Goods Act 1979 s.14
Subsection (2) Where the seller sells goods in the course of a
business, there is an implied term that the goods supplied
under the contract are of satisfactory quality.
Subsection (2A) For the purposes of this 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.
Applying the Law - Statute
Is the cake of satisfactory quality?
This is objective section 14(2A) of the SGA reads: "for the purposes of
this 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.”
Additionally, by section 14(2B) of SGA a court will take into account:
(a) fitness for all the purposes for which goods of the kind
in question are commonly supplied.
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
(e) durability
The Painted Wooden Farm
• THE PAINTED WOODEN FARM: “… all the
children play with the farm… they put the
animals in their mouths… they have brown
paint all over their mouths and tongues… all
the children become ill”
Statutes and common law that apply
- Cases
This case allows the children to claim some form of damages as a result of their
illness
Your old friend, Donoghue v Stevenson!
This case established that a duty of care to
take reasonable care in actions or omissions,
not to cause harm to others proximate to
them is owed by manufacturers
Sale of Goods Act 1979 s.14
Zak’s grandparents bought the toy so they have a contract
with the shop so they could bring an action using this Act
Subsection (2) Where the seller sells goods in the course of a
business, there is an implied term that the goods supplied
under the contract are of satisfactory quality.
Subsection (2A) For the purposes of this 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.
The Consumer Protection Act 1987
This statute will let Sasha sue the manufacturer of the cake for her broken tooth as well as
the manufacturer of the farm for making the children ill.
Section 2- Who is liable?
(1) Subject to the following provisions of this Part, where any damage is caused wholly or
partly by a defect in a product, every person to whom subsection (2) below applies shall
be liable for the damage.
(2) This subsection applies to—
(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trade mark or other
distinguishing mark in relation to the product, has held himself out to be the producer of
the product;
(c) any person who has imported the product into a member State from a place outside
the member States in order, in the course of any business of his, to supply it to another.
What is a “defect”?
Section 3- The meaning of “defect”
(1) Subject to the following provisions of this section, there is a defect in a product for the
purposes of this Part if the safety of the product is not such as persons generally are
entitled to expect; and for those purposes “safety”, in relation to a product, shall include
safety with respect to products comprised in that product and safety in the context of risks
of damage to property, as well as in the context of risks of death or personal injury.
(2) In determining for the purposes of subsection (1) above what persons generally are
entitled to expect in relation to a product all the circumstances shall be taken into account,
including—
(a) the manner in which, and purposes for which, the product has been marketed, its getup, the use of any mark in relation to the product and any instructions for, or warnings with
respect to, doing or refraining from doing anything with or in relation to the product;
(b) what might reasonably be expected to be done with or in relation to the product; and
(c) the time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the
safety of a product which is supplied after that time is greater than the safety of the product
in question.
What is “Damage”?
Section 5- Damage giving rise to liability
(1) …“damage” means death or personal injury or
any loss of or damage to any property
Possible defences for the manufacturer
Section 4- Defences
(a) that the defect is attributable to compliance with any requirement imposed by or
under any enactment or with any [EU] 1 obligation; or
(b) that the person proceeded against did not at any time supply the product to another;
or
(c) that the following conditions are satisfied, that is to say—
(i) that the only supply of the product to another by the person proceeded against was
otherwise than in the course of a business of that person's
(d) that the defect did not exist in the product at the relevant time; or
(e) that the state of scientific and technical knowledge at the relevant time was not such
that a producer of products of the same description as the product in question might be
expected to have discovered the defect if it had existed in his products while they were
under his control
Applying the Law
Question 1- Do the manufacturers of the cake and farm respectively meet the
definition of people who can be liable (Section 2)?
Yes! They are both appear to be ‘producers’ of the product as per Section 2(2)(a)
Question 2- Are the farm and the cake ‘defective’ within the meaning of Section 3?
Yes! A screw in a cake and toys painted with paint that comes off very easily is definitely
a defect under Section3(1)+(2)(a)+(2)(b)
Question 3- Has there been “Damage” under Section 5?
Yes! Personal injury has clearly happened to Sasha and the children as per Section 5(1)
Question 4- Are the manufacturers likely to have any defences under Section 4
Probably not. Perhaps section 4(e)- “The Development of Risks Defence”- could apply to
the paint on the farm, but is it really likely that the manufacturer wasn’t able to work
out that using such paint would be unsafe?
Conclusion
It appears on the facts given that Sasha would be able to sue both the manufacturers of
the cake and the toy farm.
A Very Brief word on Remedies
Remedies under the Consumer Protection Act 1987 are
usually by way of damages. So this is what Sasha will be
recovering here
What can Sasha do to stop parents from
buying the farm/ Cake in the future?
• Tell other people! (only do this if she wins her
court case, otherwise she might get sued for
slander
• Contact the Trading Standards Agency - they
could do more to publicise her message
• Although, it is very likely that if Sasha wins her
case in Court, then the manufacturer will have
to change the paint he uses so that it’s safe for
children/ stop putting screws in cakes… so
there’s no need for Sasha to stop parents from
buying it!