BUSINESS LAW
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Question One
For a contract to be formed there are essential elements that must be necessary. First there must be offer made and acceptance of that offer. The offer moves from the offeror to the offeree who must unequivocally agree to become bound. Consideration must then pass between the parties with the intention to become legally bind. The contracting parties should be persons that have capacity to enter into contract. A person that is a minor or a person of unsound mind might not possess the legal capacity to enter into contract.
The advertisement by the company was an offer for a unilateral contract which created legal relations and became binding upon the parties when all accepted the offer and paid in cash for the purchase of the motorbike’s manager of the store further confirmed that the sale was in conformity with the advertisement. In Carlile v Carbolic Smoke Ball the court held that the contract was a unilateral contract and therefore the company should fulfil its obligation as promised and pay the claimant the sum for following the rules after taking the carbolic smoke ball and still became ill. Relying on the case, Paul could prove that the company made a unilateral contract with him when he came into their shop and purchased the motorbike and the manager further confirmed that the same. Therefore, he affords a legal remedy to sue the company for breach of contract.
Under the Consumer Protection Act where a consumer suffers from physical injury as a result of a defective product then the supplier and manufacturer of such product will be held liable for the damages and injuries sustained as a result. Paul suffered a broken arm and cuts and had to seek treatment at the hospital. The company could be sued for negligence because the motorbike that they sold was defective. The aim of the Consumer Protection Act 1987 was to impose liability for defective products sold as outlined under section 2 (1) of the Act. By imposing strict liability section 3(2) specifies that the circumstances o the particular case in question should be taken into co consideration when determining the level of safety that consumers should expect as held in Abouzaid v Mothercare (UK) Ltd [2000] All ER 2436.
Paul would also have a legal remedy of suing for negligence for the injuries that he sustained. In Donoghue v Stevenson (1932) AC 562 the court held that the manufacturer owed a duty of care to the consumer of its product. Using the case all Paul would have to prove is that the chin of causation was not broken and that there was indeed breach of the duty of care that took place and because of that breach the claimant has suffered damages.
Under section 5(7) of the Consumer protection Act 1987 the law would be applicable to ensure liability where Paul can prove that the defect was ascertained by an expert which in this case he sought after sustaining the injuries. Because of the expert advice he was able to understand that the product had been defective from the first instant and that he took all the reasonable steps to get independent advice as to the safety of the item purchased.
Under the Misrepresentation Act 1967, Paul could also claim a legal remedy for misrepresentation that induced him into buying the item because the advertisement misrepresented the facts and did not outline that the product could be defectively concealing material facts the company induce him to enter into contract. Further, the manager misrepresented the facts knowing very well that the product was defective. The remedies available for the misrepresentation is damages which is financial compensation that is meant to compensate the victim from the harm suffered as a result of the said action of the defendant. Paul must show that he reasonably believed the assurance of the manager as the truth and the court could award him damages.
Question Two
Discrimination in the workplace is prohibited with employees affording the right to be protected against any unfair treatment or arbitrary dismissal that does not follow the laid down procedure. Discrimination occurs where an individual is treated unfairly because of their characteristic. The Equality Act 2010 outlines that a person may be direct or indirect. Indirect discrimination occurs where a specific group is treated less favorably because of having a protected characteristic. Direct discrimination is that which the employer cannot be able to justify and is the treating of an employee in a less favorable manner. For employees that take an absence of work through the laid down procedure because of an illness, the employer must make reasonable adjustments to accommodate the employee. In case no. 1301162/97 Cox v Post Office, the employment tribunal held that the employer could have reasonably coped without the presence of the claimant because of her asthma and should have therefore made reasonable readjustment to accommodate her. In Pousson v British Telecom Plc (2005) 1 All ER (D)34, the employment tribunal held that the fact that the attendance procedure was applied. Providing protection to a pregnant woman against anu form of discrimination places the company under a duty to ensure that the person is not disadvantage because of her condition. Section 26 of the Equality Act outlines that a person will be termed as harassing another where the person engages in conduct that could be termed as seeking to paint the employee in a less favorable manner to embarrass them.
In the case study, Jennifer even after providing documentation to explain her absenteeism, her boss Philip still embarrassed and discriminated against her when he made a number of derogatory remarks concerning her absenteeism. Jennifer could file a claim for harassment to the Employment Tribunal because the conduct of Phillip is unwarranted and aimed at humiliating her by creating an I intimidating and degrading environment .Under the Equality employees could be held liable for the liability for actions of their staff but can be able to escape from such liability where it can be proved that the company had taken all the reasonable steps to prevent any form of harassment form happening.
Should Jenifer opt to resign because of the bullying by Phillip and the failure of the company to address his actions, then the resignation could result in a claim for constructive dismissal or unfair dismissal. The case of Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23 could come to her aid ss the court held that contracts of employment imply the term of mutual confidence and trust and therefore ab employer could be held liable for breach of the term.
Where the tribunal holds that there was unfair dismissal then the employee will receive an appropriate remedy under the circumstance’s tribunal may opt to offer the individual an order for reinstatement requiring the employer to reemploy the individual to the position that he held before her termination. However, reinstatement may not always be the bets option as evidenced by Chager v Abby National Plc (1978)ILR 379.Where reinstatement is not possible ,then the court may order for reengagement of the employee which men that he employee is reengaged by the company to a similar position as the one that she held before.
The tribunal could also opt to issue compensatory damages where the relationship between the employer and the employee has irretrievably broken down. The aim of compensation under such circumstances would be to ensure that the person is compensated for the direct actions of the employer. Section 123 of the Employment Rights Act 1996 allows for compensatory damages that could get awarded to Jennifer under the circumstances if she decides to resign as a direct consequence of the bullying and harassment by Phillip. If the court finds that the dismissal or resignation was in any way caused by the employer, then the court will offer compensatory damages.
Question Three
Having come to seek legal and vice form GCBAS the first step is to determine the issues that are in dispute. The first question is whether the opened unit shelves should be returned even though they have been unpacked and opened contrary to the company policy on tern of the shelves. Secondly is whether the company should be liable for the malfunction of the dishwasher and the resultant damages that was suffered by the plumber and also the damage to the main circuit board.
The business owner acted as the supplier and will therefore be liable for the injuries sustained by the plumber and also for the defective products that they sold to Mr. and Mrs. William. Under section 2 of the Consumer Protection Act 1987 the supplier would also be termed as being liable for selling defective products. The Consumer Rights Act 2015 stipulate that the goods supplied must be of satisfactory quality under section 9. Every contract for the supply of goods is to be termed as implying ng that the goods are of satisfactory quality. Therefore, the quality of the goods will be termed as being satisfactory where they are fit for the purpose of use as is standard procedure.
In the case study the goods were not of expected quality as they were found to be defective and the malfunction resulted in the Injuries sustained by the plumber and the damages to the board belonging to the intended plaintiffs Mr. and Mrs. Williams. It is necessary that the contract be fair at all times because an unfair consumer notice will not become binding upon the consumer. Section 63 of the Consumer Rights Act outlines that a term of a consumer contract may be re de as being unfair where such term has the effect of making the consumer bear the burden of proof in relation to the compliance. Under the circumstances, the clause that exclude the company from liability on the premise that goods once sold is not applicable because that is an unfair clause used by the company aimed at escaping liability for defects.
Where a specific clause in a consumer contract is held to be unfair then the contract will continue to have full force and effect so far as is reasonably practicable except where the clause that is unenforceable goes to the root of the contract rendering the whole contract incapable of being salvaged. The Consumer Rights Act provides that the supplier or business must ensure that the item being sold of satisfactory quality, fit for purpose and lastly the goods must be ones that have been described in the contract. Section 7 of the Consumer Protection Act disallows a party from excluding liability that arises form a defective product.
A person that suffers damages as a result of being supplied with defective products may further to consumer rights obtain a claim under common law. The plaintiffs could also sue for breach of contract by terming the defects a going to the root of the contract. Under section 3 of the Consumer Protection Act 1987, a product will be termed as defective where the item is below the standard to which the consumer is entitled. When analyzing such a product for suitability the courts will look at the manner and purpose in which the product is make-ready marks or working in relation to the said product, what reasonable person would expect under the circumstances and the time that the product was suppled and when the defect arose. In A v National Blood Authority [2001] EWHC QB 446), the court held that the first step should be determining the harmful characteristic of the product before identifying the harm that was suffered. In Colin Gee & ors v DePuy International Ltd [2018] EWHC 1208 (QB), the court held that the concept of defective was one that was strictly objective but outlined that the approach taken should be flexible.
Question four
Henry and Louisa come before GCBAS seeking legal advice as to their liability for the harm caused by the product that they sold to third parties which had been made by Amanda who under the circumstances would be considered vas an independent contract. The issue that is in dispute is whether the claim against Henry and Louisa would stand.
The law that is applicable is the Consumer Protection Act 1987 which allows for the consumer to seek liability for goods that are defective. Section 2 off the Act outlines that the person culpable shall be liable for the damages for selling the product to thirds parties because the person that requested the product ended up being affected by the application of it. The chain of causation under the circumstances has not been broken because even though the product exchanged hands it does not change the fact that the product originated form their store and they are the manufacture of the said product albeit through the sue of an independent contractor which in this case is Amanda. Therefore, even though they are third parties they could be able to file a claim against Henry and Lisa for the damages that they have suffered because of the toxity of the product.
Section 2 of the Consumer Protection Act would place liability principally on the producer but the supplier may also be liable as was Case C-127/04 O’Byrne v Aventis Pasteur SA. The burden of proof under the circumstances would be on the claimant to show on a balance of probability that the product was indeed the one that resulted in their injuries. In Hufford v Samsung Electronics (UK) Limited (2014) EWHC 2956 (TCC), the court outlined that under section 3 of the Consumer Protection Act the consumer must show that the harm cause itself was as a catalyst of that resulted in their injuries. The Consumer Protection Act 1987 is the main law in relation to claims brought concerning product lability. The strict liability principle as stipulated under the Act was meant to implement the EU directive 85/374 EEC that task about liability for products that are defective. The claimants in the case study have the option of bringing a claim under common law for negligence, suing for breach of contract or bringing a claim under consumer protection laws.
The claimant will be successful in claiming for product liability if the person can show that the defendant owed them a duty of care and that there was breach of that duty on a balance of probability. Thirdly, the said breach must have caused the damage and the damage, must be one that was reasonably foreseeable. For the claimant to be successful in filing a claim for product liability it is necessary for the person to how that the said product was indeed defective, that as a result of the defect the person suffered damages and lastly that there was a causal link between the image suffered and the defect .In Wilkes v DePuy [2016] EWHC 3096 (QB) the court outline that are focus should be to determining whether the product was defective and if yes whether the harm suffered was caused as a result of the product. Similarly, in Gee & Others v Deputy International Limited [2018] EWC 1208(QB) the court found the company liable for the defects that were occasioned. To prove a claim of negligence then the claim should be brought against the manufacturer of the product and any party that is a party in the supply chain. The consumer in using the product as launched by the defendant had legitimate expectation to believe that the products were safe for application and could be trusted. If successful the available remedies that are available for product liability claim is compensatory damages which are intended to compensate the claimant for the harm suffered as a result. the compensatory damages are used as an example of how the courts should try to bring the claimant to the same position that he was if it were not for the accident.
Reference List
Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
Case C-127/04 O’Byrne v Aventis Pasteur SA.
Colin Gee & ors v DePuy International Ltd [2018] EWHC 1208 (QB
Consumer Protection Act 1987
Consumer Rights Act 2015
Equality Act 2010.
Gee & Others v Deputy International Limited [2018] EWC 1208(QB)
Hufford v Samsung Electronics (UK) Limited (2014) EWHC 2956 (TCC
Wilkes v DePuy [2016] EWHC 3096 (QB)
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