The Sales of Good Act Section 13(3), ensures to Alfie that the clutch which is to be fitted is reasonably fit for the purpose for which it is intended. It should be compatible with the model XK8 of a Jaguar. With a second hand clutch bound to have existing ‘wear and tear’, this has not been adhered to and is unacceptable.
Alfie may relate to this Act because a sum of money has changed hands for a product and he is not duly satisfied.
Similarly under Section 14(2) (3) the quality of the clutch is not durable enough as it is second hand. This act states it should be durable for its purpose. Having lasted only a few hours then this criterion has not been met. Should the clutch have lasted a fair while longer and then break, the durability being used as a fault could have been questioned as it lasted a long time, but this is not the case.
Remedies:
The expressed terms that money is paid for a clutch to be installed in working order, which turns out didn’t work for long and was second hand, allows Alfie to pursue legal action for breach of contractual obligation and request a court for some form of remedy.
Alfie can now make an attempt to sue the garage for damages so he is compensated. The main legal remedy which might be imposed is where the court orders the garage to pay damages to Alfie.
Case of Hadley v Baxendale, this rule means Alfie could claim for loss arising naturally as a result of breach of contract. Other parts of his car suffered as a result of the careless installing of the wrong clutch. This would be a reasonable claim as Alfie cannot be expected to pay for other damages which were not already in existence until it had been through carelessness and negligence of the installer.
A claim for time off work or other things may be unreasonable as in this instance a car could be hired for work purposes and then the cost of hiring the car could be claimed for rather than anytime off work resulting in loss of earnings. As Alfie isn’t physically injured then this would be the best way of claiming on that.
Problem 2
1219 words
Kat and Drinks Manufacturer
Intro:
Kat must consider all the information she has and the events which took place, before deciding the best avenue to go down to bring a case forward to seek compensation for her illness and loss of earnings. It would only be suitable to bring forward a case against Alfie if it can be proved that Alfie is in charge of the bottling of the product and if so the conditions of bottling must be discovered, otherwise, if this process was out of his responsibility then Kat only has grounds to make a claim against the public house for the cost of the drink (which is easily dealt with). Previous case law regarding Donoghue v Stevenson (1932), the drinks contents wasn’t the fault of the public house, but of the manufacturers. Alfie couldn’t be expected to examine the bottle thoroughly. He would take it on trust that the contents of the bottle were to be as expected from a liquid drink.
Terms:
Kat has Express terms in the contract which are basically as follows:
1/ she will purchase an alcopop drink for a sum of money
There are Implied terms in the contract which are not stated but it would be expected:
1/ that the alcopop drink doesn’t do anything other than what’s it’s meant to, i.e., it shouldn’t make her ill (unless it makes her drowsy due to excessive drinking)
Appeal Grounds:
Alfie should be excluded of liability as the fault will most definitely lie with the drink manufacturers.
Negligence may have occurred here, this will need to be addressed as to whether the drinks manufacturer will be claimed against for negligence, breaching a duty of care, or both. Payn would say that “a person is negligent when he or she fails to act like the standard "ordinary reasonable person". Of course the critical issue in many cases is just how an "ordinary, reasonable person" was expected to act in the particular situation that caused the injury”
Kat must discover whether a breach of duty of care exists. The test for this arose from the case of Donoghue v Stevenson (1932) in which, according Lord Atkins’s, “you must take reasonable care to avoid acts and omissions which could reasonably foresee would be likely to injure your neighbour. This neighbour is anyone who could potential consume the beverage”
Negligence may not be able to be brought forward with a strong enough case for it to be accepted that a claim for a quantifiable loss due to physical injury to Kat. It may however, be proved that the bottle company are in a breach of duty to care for all potential consumers.
The typical tort of the law that could relate to this problem (as outlined at law.freeadvice.com) of Kat v Drinks Manufacturer, would look to establish the following:
(1). The existence of a legal duty owed by a person to others
(2) The breach of the duty by one person (negligence)
(3) The breach of the duty being the "proximate cause" of damages suffered by a person
(4) Damages incurred by a person
The legal duty of care is that the drinks company should be providing this care to all potential consumers. They should be expected to provide exactly what is described when the product is purchased. This right is stated in The Sales of Goods Act 1979 s13, in the case of the alcopop, Kat relies on the description of the drink given on the bottle, sale by description, that the drink is of ‘x’ flavour and of ‘x’ units. No other hidden bodies (snail) which are not mentioned would be expected in the bottle.
If the bottle said that there was a decomposed snail in it then that’s acceptable, however this is not on the bottle. Ashington Piggeries Ltd v Christopher Hill Ltd (1972), finds the question whether goods correspond to their description is a test of merchantable character, s14(6) of merchantable quality if fit for the purpose of which the good is usually bought. Kat bought a beverage to consume, this isn’t safely consumable. The drinks manufacturer is in breach of the act and is liable for this breach; however, the effects are not only a replacement drink anymore.
If duty of care is to be the case, then causation needs to be established. This is Kats time off from work and illness, which has been derived from the decomposed snail which needed her to seek medical attention. If she had not consumed the snail, then Kat more likely than not wouldn’t have needed any medical attention or needed time off work suffering illness by simply consuming an alcopop.
The drinks company should be liable for damages which are reasonably foreseeable, using Wagon Mound No 1 (1961), that the effects of one party to the other relates to the foreseeable possibilities, Kat ate a decomposed snail could result in some form of illness which in turn leads to medical attention. A natural follow on when medical attention is needed, time of work becomes a possibility. Finally, loss of earnings for the period of time away from work is incurred. This is not always an affordable position to be put in, especially at the fault of another party.
Kat has become ill through the fault of the drinks company; Kat could now proceed in bringing an action of legal proceedings with all the necessary evidence and understandings collected to make a case for compensation.
Possible avenues to seek compensation on are as follows:
1/ medical expenses (this may include any doctor fees, prescription fees and hospital costing)
2/ loss of earnings (earnings she would have received should she have been able to work for the period of time that she has been out of work due to the illness suffered)
3/ pain and suffering (compensation for the hurt that Kat has been caused to endure as a result)
Remedies:
A remedy is orders which the court will make the offending party carry out. It can be in the form of a monetary payout, they may be asked to carry out the contractual obligations or to put the injured party back into the position they were before they became involved with each other.
It may be that Kat could claim compensatory damages. These can cover all economic losses which are incurred by the consumption of the decomposed snail. These could include future medical expenses if the illness proves to be more harmful and longer lasting.
A claim for a loss of earnings that Kat would have earned for the duration of time spent off from work and any future earnings which she cannot earn due to the illness, maybe to attend check ups or continued support.
Away from economic losses, Kat could try to claim for non-economic losses such as the pain and suffering that she has been caused and the continued pain and suffering she might endure. Emotional distress and discomfort anguish and the long lasting effect of not enjoying the social aspect of drinking with friends when she goes out could be a factor. She may always wonder what lies in the bottom of her next alcopop and can’t enjoy her self as a shadow of worry could forever hang over her. She may be compensated for having to deal with this feeling all the time.
Bibliography
Keenan. D & Riches. S, (5th Ed, 1998), Business Law: “Contracts for the supply of goods and services,” London: Financial Time Pitman Publishing
Kelly. D, Holme. A (2nd Ed, 1997) Q&A Series Business Law: “The Law of Contract and Negligence,” London: Cavendish Publishing Ltd
Marsh. SB & Soulsby. J, (8th Ed, 2002), Business Law: “The Nature of a Contract in English Law,” Cheltenham: Nelson Thornes Ltd
Prime. T, (1990), Commercial Law: “Statutory Instruments and Case,” London: Blackstone Press Ltd
Redmond. PW, (7th Ed, 1993), Introduction to Business Law: “Formation of Contracts,” London: Pitman Publishing
Rose. FD, (1989), Statutes on Commercial Law, “Sales of Goods and Supply of Goods Acts,” London: Blackstone Press Ltd
Walker. B & Payn. T (1995) An Introduction To Business Law: “Contract and Tort,” Cheltenham: Stanley Thornes (Publishers) Ltd
Bibliography
D Keenan and S Riches, Business Law, 5th edn (1998
D Kelly and A Holme, Q&A Series Business Law, 2nd edn (1997)
SB Marsh and J Soulsby, Business Law, 8th edn (2002)
T Prime, Commercial Law (1990)
PW Redmond, Introduction to Business Law, 7th edn (1993)
FD Rose, Statutes on Commercial Law (1989)
B Walker and T Payn, An Introduction to Business Law (1995)
List of Cases
Ashington Piggeries Ltd v Christopher Hill Ltd (1972)
Blyth v Birmingham Waterworks Co (1856)
Donoghue v Stevenson (1932)
Hadley v Baxendale (1854)
Wagon Mound (No1) (1961)
Speakers Quoted
Lord Atkin (1932)
Table of Statutes
The Sales of Goods Act 1979
The Sale and Supply of Goods Act 1994
Unfair Contract Terms Act 1977
Further Reading
Appeal Cases
Cases and Materials on the English Legal System
Casebook on Tort
Industrial Relations Law Reports
King’s Bench Division
Queen’s Bench Division
Weekly Law Reports
