Law for Business

Stuart Pendlebury who just turned 90 years old was gifted an electric blanket from his grandchildren. The blanket caused him burns on his legs and damages to his bed and room décor extensively. This is a case of negligence on the part of the manufacturer, as the blanket had faulty wiring due to which the fire was caused. “The Tort of Negligence gives rights to persons’ who have suffered damage to themselves or their property, as against a party who has failed to take reasonable care for those persons` safety”. (ADAMS 2006 p. 155,) The claimant should prove three things to have a successful claim against the defendant. The defendant owed the claimant a duty of care, there was a breach of duty by the defendant and the claimant suffered damage as a result of the inconvenience caused. The purchaser cannot take action on the manufacturer under the Sale of Goods Act 1979 as a result of not having a contract between them into which any conditions or warranties set out in the act to be implied. But the purchaser can take an action based on negligence against the manufacturer as he has suffered physical injuries due to the defects of the product, and thus owes a duty of care towards the purchaser.(Smith and Keenan’s,2006). In order to get Mr. Stuart a claim for his damages he should take action on the manufacturer by implementing the Tort of Negligence. Mr. Stuart is entitled to claim damages from the manufacturer for the electric blanket for the pain and suffering caused by the fire and all the losses incurred to him, he is allowed to get the cost of replacing his damaged furniture and his décor as well.”These knock-on costs of the damage caused by the defendant’s negligence and are described as consequential economic loss.” (Adams 2008, p. 265). However Mr. Stuart will not be able to recover the loss for the electric blanket as this loss is categorized under pure economic loss, i.e. “the defect does not of itself give rise to liability of the manufacturer in negligence, it is the physical damage to the person or other property which imposes the duty. The lack of quality in the goods does not in itself give rise to the negligence liability.”(Adams 2008, p. 265).

Duty of care is one of the elements in the tort of negligence, it must be shown that the defendant was not only under a duty towards the claimant to be careful, but also that he was required to achieve the standard of care due to which the damage was caused and finally that the damage was not too remote a consequence of the act. It should be shown that the particular defendant stood in the required relationship to the claimant such that he came under an obligation to use care toward him, this relationship is referred to as proximity. In order to establish a duty of care the claimant must prove that, some damage was foreseeable to him, that it is just and reasonable to impose a duty and finally he must prove that there was sufficient proximity between him and the defendant. (Kidner, 2006) This concept of the duty of care was established by the House of Lords in the following case. In the case of Donoghue v Stevenson, 1932 which explains how Mrs. Donoghue was given bottle of ginger beer by a friend, she consumed it unaware of the fact that the bottle had the decomposed remains of a snail. The House of Lords held by a majority of three to two that they did agree that the manufacturer did owe Mrs. Donoghue a duty of care, reports state that the case was subsequently settled out of court for 100 pounds. Her being the customer and she was someone who reasonably foresee ably would be affected by the way the product was processed by the manufacturer. This case is applicable to the case of Mr. Stuart as both manufacturers lacked the duty of care towards their customers as it is based on the foresight of the reasonable person and both the plaintiffs were the third party. (Smith and Kennans, 2006)

The Breach of Duty explains how being a practical matter it is very important. It is often a major issue between the defendant’s and claimants advisors or insurers to reach a settlement. The breach of duty is commonly the most important aspect in the tort of negligence. To prove the breach of duty the claimant must prove that the defendant didn’t take the particular level of protection against the reasonably anticipated actions, this includes taking into consideration the provided instructions or warning for using the product, seriousness of the risk from the defendants side. For example the case of Grant v Australian Knitting Mills Ltd [1936] AC 85. Causation is the link which should exist between the breach and the damage done to the claimant, in factual causation the damage must be the result of the breach and in law the damage must not be too remote.(Adams A, 2008)

In the case Marc & Co. AG V Bishop Rock Marine House of Lords, 06 July 1995 the House of Lords decided that any case regarding negligence would prove the duty of care if three things were included. Firstly there should be reasonable foresee ability. Secondly there must be a close enough relationship of proximity between defendant’s act and the claimant at the time of the wrong complained about and lastly fairness, justice and interdependent. (Adams A, 2006).

”Negligence does not impose a duty to act carefully; it is a duty not to inflict damage carelessly.” For example a car driven recklessly is not liable in tort unless it causes any damage to other motorists using the road, although there is no argument that the driver owes a duty of care toward other road users. (Michael A Jones 2002).

The Consumer Protection Act of 1987 explains that if any person is suffering damage to his or her property or themselves they can claim under this act. The act also states that if any defect is found in a product, the people liable for the defect are, manufacturer, importer, own brand seller and finally the supplier of the goods. Stuart can get his claim for his electric blanket and the damages caused to him using this act as he had been gifted a defective product. This act clearly stated that the manufacturer or producer is liable for the defect in the product. As long as Mr. Stuart can prove that the blanket caused fire and was defective he will be successful in getting his claim for the damages caused, as the act imposes strict liability. (Adams a 2008). He should be able to prove all the criteria required or he would not get the claim. There are cases like Abouzaid v Mother care (UK)LTD where the claimant has not been successful to achieve any sort of compensation liable to them. This case of Mr. Stuart is relevant as they both were sold defective products. In this case of Abouzaid v Mother Care the product was defective under s3. There was a risk using the product, but there were no warnings given to the consumers regarding using it. The case was not under the tort of negligence as there were no reports of any injuries caused by the product. According to the consumer protection act, the claimant just needed to show the product was defective to establish liability.

In the case Evans v Triplex Glass [193]), Mr. Evans had bought a car fitted by the manufacturer with a windscreen manufactured by Triplex Glass. Mr. Evans and his family were injured during an accident when the windscreen was shattered due to a collision. Triplex Glass did not owe Mr. Evans a duty of care as the glass could have been weakened in the time elapsed; the defect was not identified if there was any by Vauxhall prior to the fitting, or during the time of installation of the windshield the glass was weakened by Vauxhall. The claimant has to show proof in order to get a claim that he/she has used the product appropriately according to the instructions given. On the contrary in the case Mason v Williams and Williams [1955] the claimant successfully proved the manufacturers were negligent by showing that nothing had happened to the product after it left the ownership of the manufacturers. Mr. Stuart also may not get his claim for not following the instructions. The defendant could use contributory negligence for his defense.[Green D,2005] Contributory negligence is a defense that applies where the damage, which the claimant (Stuart) has suffered was caused partly by their own fault and partly by the fault of the defendant. In order to establish the defence, the defendant must prove that the claimant failed to take reasonable care for their own safety and that this failure was a cause of their damage. If contributory negligence is established, the claimant will have their damages reduced by the court in proportion to their fault. (John Cooke, 2006) But the manufacturer could be sued on the basis of the Consumer Protection Act and under negligence; the manufacturer has less chances to win the case as the law is not favoring him. Mr. Stuart must sue the manufacturer and not the retailer of the electric blanket. This is because he is not the purchaser of the product, making him a third party. However, his grandchildren can sue the retailers of the product and get their claim for the electric blanket. In the case of Daniels v R White & Sons Ltd, Mr. Daniel purchased some beer and a bottle of lemonade for himself and his spouse and mixed the two drinks into a shandy. They found that the lemonade was contaminated with carbolic acid after they consumed some of it; they both suffered illness as a result. However the couple could not get their claim from the manufacturers because they had fulfilled all his duties, but Mr. Daniel recovered under the sale of goods act from the retailers of the product. The same way even Stuarts grandchildren can get a claim from the retailer of the electric blanket by implementing the Sale of Goods Act 1983. (Keith. O, 1997)

Res ipsa loquitor raises a rebuttable presumption of negligence against the defendant. Its effect is that the defendant must then rebut the presumption by showing that he was not negligent, or he becomes liable. In order that res ispa loquitor may apply three conditions should be met: firstly the cause of the occurrence must be unknown, secondly the events occurred must be totally in the control of the defendant and thirdly the accident should be proved in such a way that it wouldn’t have happened without negligence. (Keith. O, 1997) Mr. Stuart can also use this statue to get his claim as he can prove the three conditions which are taken into consideration by res ispa loquitor.

From the above information it is evident that Mr. Stuart Pendlebury should get a claim for all his losses and the sufferings incurred to him. The manufacturer is liable for the actions against the tort of negligence, but he is not entitled to get the claim for the electric blanket as he did not purchase it. The grandchildren who had gifted Mr. Stuart the electric blanket, are permitted to get the claim for the blanket from the suppliers under the Sale of Goods Act of 1983. As there have been over fifty thousand deaths which relate to electric blankets and most of these people have been senior citizens, it will be easier for Mr. Stuart to prove his issue and get adequate compensation for his losses.

Bibliography & References

DOCSTOC, 2009. ABOUZAID-v-MOTHERCARE-(UK) [online]. Available: http://www.docstoc.com/docs/17679152/ABOUZAID-v-MOTHERCARE-(UK) [accessed 2 December, 2009]

Book

• David Green (2005). Torts Law Q & A. 6th ed. London: Routledge Cavendish.
• Keith Owens (1997). Law for business studies students. 2nd ed. London: Routledge Cavendish.