Part a: Look at tort of trespass and Part b:Essay question on consumer protection Act.

As conveyed above both the duty of care and breach of standard of care can be satisfied. In order to fulfil a negligence claim, Debbie must prove that she has suffered damage from the manufacturer. In order to prove this, there are two forms of causation to be established. Firstly in order to prove causation in fact, the courts will take into account the ‘butt for’ test. In relation to the scenario the damage may not have occurred but for the negligence of ‘Curtis Electrical Store’ in not acting upon the emails, the loss occurred property damage for Debbie. Secondly causation in law must be satisfied. In order for Debbie to prove this, she must be able to prove that the remoteness of negligence is reasonably foreseeable. In the Wagon Mound case the Privy Council held “that reasonable foresee ability was the proper test for remoteness of damage in tort law”. In relation to Debbie it is clear that the property damage suffered is not too remote however only the judge in this instance will be able to determine whether the loss suffered was reasonably foreseeable. One must note that Debbie is able to satisfy all three elements within the criteria under negligence and it can be advised that Debbie can have a negligence claim.

Moreover, one must note that Jenn is able to claim using the Consumer Protection Act 1987 regarding the ‘HI FI’. This is because a claim can only be made if the claimant has suffered personal injury or property damage worth more than £275. This can be satisfied for Jenn. However under this act all Jenn needs to prove is that she has suffered injury or damage to property and that the product is defective under the terms of the Act. In this act, section 2(1) conveys that within the chain of manufacture and distribution anyone is potentially liable. Under section 2(2) (a) it can be stated that the producer of the product will be liable, in this case Nippon Electrics would be liable under this section. However under section 2(b), the person in who puts their own brand onto the product can potentially be liable, this would therefore be Argots as they place their own branding on the product. It must be taken into consideration that liability under the act is joint and several and therefore Jenn can sue the person with the most money or best insurance cover, this can be seen under section 2(5). Therefore Jenn can claim against the producer in this case being Nippon Electrics, due to the act imposes liability on the producer of the ‘HI FI’. However the retailer being ‘Argots’ can be potentially liable due to an own brand is made by them, which was sold to Steve in where by doing this, they present themselves as the producer. However all parties must be taken into consideration through the chain until the product is given to the ultimate consumer. Therefore the importer of the ‘HI FI’ can be taken into account. Under section 2(2) (c), goods which have been imported into the European Union, the importer will be liable if there has been intent to supply to another. This can be identified as ‘Wilston Wholesalers’ import the ‘HI FI’ from Japan into UK with intent to supply the products to UK retailers, therefore this conveys that the importers can potentially be liable for Jenn’s injuries and damage.

In relation to Sid confronting Steve, it can be identified that Steve can contend that an assault has been inflicted to him. In order for Steve to prove that an assault has taken place, he must prove firstly that Sid must have acted, where in this case Sid clearly did so and secondly that the effect of Sid’s action must be a reasonable expectation of immediate, unlawful physical violence. With the statement ‘punch your lights out’ this clearly satisfies the requisite elements to an assault. The raising of Steve’s fists and the words alone can amount to an assault. This can also be seen in Read v Coker where an assault had taken place with words of a threatening nature.

In addition to Sid’s potential liability in the tort of trespass, it can be seen above that Sid would be potentially liable for the assault in which he inflicted on Steve. In order to prove whether Sid’s actions towards Derek could amount to a battery, the requisite elements must be proven. Firstly it can be seen that physical force was applied towards Derek in where contact was made from Steve. Secondly it can be stated that the force applied was indirect to Derek. However this indirect force can amount to battery. The case of Scott v Shepherd illustrates the doctrine of ‘transferred malice’ in where Steve can be seen to be Sid’s instruments. The final element is whether there is intention, in relation to Sid it can be stated that there was intention from Sid to inflict physical force on Steve therefore overall a battery can be seen to be inflicted by Sid to Derek.

Part A Word Count: 1547

Part B:

In the context of this assignment, one must note that the Consumer Protection Act 1987 (C.P.A) was introduced to protect consumers against dangerous products, as there was a huge concern about the lack of ability within negligence law. Firstly, it can be suggested that the act itself isn’t as strict as other laws, such as negligence law. This is because the act establishes strict liability for damage caused by defective products and therefore the claimant does not have to establish the producer was negligent. This shows the flexibility in what the claimant has to prove and the claimant does not need to satisfy requisite elements such as duty of care.

Additionally the (C.P.A) doesn’t protect businesses, such as property. This shows claims of a business nature can’t be claimed under (C.P.A) and therefore suggests the act isn’t strict as it doesn’t cover all claims. Moreover one can suggest that the (C.P.A) is not strict due to the term ‘defective’, which falls under various categories within the courts, this can be conveyed in where “one of the most serious criticisms of the (c.pa) is that it permits to many of the factors which fall to be considered in the ordinary law of negligence to play a part in establishing whether the product in question is defective...”. A important case which illustrates the term ‘defect’ and conveys a relaxed nature within the court is the case of A et al v National Blood Authority, in this case the claimants appreciated that liability was strict and was held that the infective blood was defective. This case can be conveyed in the context that the (C.P.A) is not strict because the claimants had been successful with their claim under (CPA) regardless of the defendant’s understanding of the term ‘defect’. Furthermore, one can note that the (C.P.A) is not strict due to there being such a broad scope of the term ‘product’. The (C.P.A) doesn’t apply to all products, nor does it cover all different defects. This conveys the strictness in the act when determining whether a case can be enforced by the claimant under the (C.P.A).      

In addition the ‘definition under producer is very wide and does not usually mean the individual employee, rather the company or employer’.  This supports the view that the (C.P.A) is not strict, in context of the term ‘producer’ in the act is very broad and therefore there isn’t a strict definition of this term within the act. On the other hand, one must note that in the (C.P.A), the limitation period is strict and a claim must be brought within three years of becoming evident and within ten years of the product being supplied. This portrays the strict nature for making a claim under (C.P.A). One may illustrate that under the (C.P.A) causation is still a requirement and the standard of care is similar to negligence, thus illustrating that potential liability is not strict enough. On the contrary, it can be conveyed that liability is strict under the act, but it is not absolute due to there being numerous defences available therefore making it harder for the claimant to succeed. A case which illustrates that the courts were strict using the (C.P.A) is Bogle v McDonalds; in this case the courts were strict in taking into account that standard of safety within the act.

In addition the (C.P.A) can only be used if a claim of property damage is more than £275, this conveys that the (C.P.A) is strict in the context that it restricts individuals on claiming under the (C.P.A) therefore illustrating the seriousness in how the (C.P.A) operates. Overall it can be seen that there are many arguments which convey that the (C.P.A) is strict, for example, the limitation periods. Nevertheless there are also many opinions where one can note that the (C.P.A) is not strict where the act does not lay down absolute liability.    

Part B Word Count: 652 Words

Part A + Part B= 2199 (excluding footnotes and citations and Bibliography)

Maximum word count including 10% is 2200

 BIBLIOGRAPHY:

• Cooke J; Law of Tort (Pearson 2007, 8th Edition)
• Deakin S, Johnston A, and Markesinis B; Markesinis and Deakin’s Tort Law (Oxford University 2008, 6th Edition)
• Hodgson J, Lethwaite J; Tort Law (Oxford University 2007, 2nd Edition)
• Harpwood, V. Modern Tort Law (Routledge 2003, 5th Edition)
• Kidner R; Casebook on Torts (Oxford University2008, 10th Edition)
• McBridge N.J, Bagshaw R; Tort Law (Pearson 2008, 3rd Edition)

 

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