Adequately Protecting the Consumer

In a contract for the sale of goods, section 14 of the sale of goods Act 1979 which is one of the most important provisions in the act [1] sets out the obligations of the seller in relation to quality and fitness [2] .

The act is known as a consolidating act, and many of the key provisions such as ‘merchantable quality’ were found in the sale of goods act 1893, however the term ‘merchantable quality’ was amended in the 1979 Act and substituted with ‘satisfactory’

Before the act was reformed the early law was based on the idea that it was up to the parties to make their own bargain, and it stated it was up to the buyer to decide if the goods were merchantable and fit for purpose before they agree to buy the product, this meant that companies could exclude all implied terms. This was known as the doctrine of ‘Caveat Emptor’ which means let the buyers beware. Although the ‘let the buyer’ beware principle has been severely diminished, it is not entirely extinct. By s.14(1):

Except as provided by this section…. There is no implied condition or warranty about the quality or fitness for any particular purpose of goods supplied under a contract of sale. [3]

The sale of goods Act 1979 protects consumers if the seller sells in the course of a business as it restricts the use of the ‘caveat emptor’ rule, however this protection varies if the seller is a private seller as the rule may still apply. Therefore, it could be said that the amended sale of goods Act 1979 may not protect all consumers from dangerous and shoddy goods, as private sellers are not included and the consumer may not always be protected. Therefore in order to ensure that the consumer is adequately protected there ust be a clear distinction between a ‘sale in the course of a business’ and the sale not in the course of a business. S.14(5) makes it clear that if someone is selling in the course of a business as an agent for a private seller, then the seller must make this clear to the buyer inorder to avoid liability.

In a recent Scottish case [4] it was illustrated that a buyer can take advantage of S.14(5) if he buys from a dealer without knowing that the dealer is acting for a non business seller. Therefore it could be said that although by S.14(1) the ‘caveat emptor’ may still apply in a private sale which isn’t in the course of a business, S.12(5) ensures that the buyer must be informed if a sale is made in the course of a business for a private seller and therefore the agent cannot rely on the ‘caveat emptor’ principle on behalf of the private seller.

The case of Grant v Australian knitting Mills where a chemical in the underpants caused dermatitis clearly proved that if goods are unsafe they are not deemed as satisfactory quality, however many products such as knives, saws, and other tools have a dangerous nature and it is common sense that instructions are not needed for them to be used in a safe manner. In contrast to this, other products which such as cars, machinery and garden tools etc. would be deemed dangerous unless clear unambiguous instructions on how to handle them are supplied with them. If instructions are not followed and damage occurs following the misuse of these products then this would leave no one but the consumer liable for the damage. With regards to this it is made clear that the consumer is protected against dangerous and shoddy goods if they are not of a satisfactory quality and they cause damage to the consumer, however if a good is dangerous and a clear warning is given with a set of instructions on how to operate the good is ignored then the consumer is not in a position to claim.

The aim of Consumer Protection Act 1987 is to help safeguard the consumer from the products that do not reach a reasonable level of safety.The main areas dealt with can be described as Product Liability and Consumer Safety. Defective products are defined, as being those where the safety of the product is not such as persons generally is entitled to expect. On the other hand a product will not be considered defective simply because it is of poor quality or because a safer version is subsequently put on the market.

The consumer protection Act 1987 was set up in response to the EC’s 1985 Directive on Product Liability. This directive was created with the aim of harmonizing law in Member States and promoting movement of goods and free trade. It introduced for the first time the concept of Strict Liability.

The consumer protection Act 1987 implies that the burden of proof lies on the claimant, this was recently confirmed in the case of Foster v Biovil which was a breast implant case. Now that partial causation is seen as sufficient in bringing a claim as the Act states that the manufacturer may not necessarily be wholly responsible, but as long as the claimant can prove they were in some part to blame an action can be bought against them. This is something which has come directly from the European Directive, and which makes bringing a case to court much easier for the plaintiff.

One of the major factors which is potentially seen as a let down to the consumer when it comes to the CPA 1987 with regards to adequately protecting them from dangerous and shoddy goods is that S.6(4) still allows contributory negligence. If the consumer can be proved to have been in some way liable for the injuries received, they can have their damages reduced. If a consumer knows they have contributed to the injuries or damages they may not think it is worth pursuing, or without taking legal advice they may think it will invalidate their complaint completely. Another point to take in to consideration is the fact that the CPA 1987 S,5(4) only covers damages of more than £275. This fact alone could contribute to a lower number of claims as people simply may not qualify. In addition there is the situation where a claim would originally be worth over £275, but because of contributory negligence it could be reduced to under this and therefore invalidated.

S.5(2) deals with the damages that are covered in the Act, in order to say that the consumer is adequately protected it would mean that they are sufficiently protected, however the argument relies on the question of whether the act not covering loss of or damage to the ‘product itself ‘ or to ‘ the whole or any part of any product which has been supplied with the defective product comprised in it’ would tick all the boxes for adequately protecting the consumer.

The consumer protection Act provides a wide range of people which a claimant can sue for damages from unsafe goods. Section 2(2) provides that the following are liable for the damage:

The Producer; which section 1(2) defines as either the person that manufactured, abstracted or won the product, or anyone who has applied an industrial process to the product.

Any person who by putting his name on the product or using a trade name or other distinguishing mark in relation to the product. Eg a supermarket’s own brand.

Any person who imported goods into a Member State of the EC from a place outside the Member States in order, in the course of a business, to supply it to another.

If the injured party is unable to identify the producer, they are able to identify another party in the supply chain who, failing to identify the producer or another supplier higher up the chain will become liable (subject to certain conditions)

More than one person can be held liable under the Act, liability can be joint or several. This wide range of possible liable parties increases the chance that a claimant will be protected and be able to successfully sue for damages. In addition to this, section 7 of the Act prevents the defendant from excluding or limiting liability, either contractually or in any other way making the possibility of a successful claim against dangerous and shoddy goods much higher.

As the Consumer Protection Act covers strict liability there are not many defenses available to the defendant. Section 4(1) provides the following:

The defect is attributable to compliance with any statutory or EC requirement.

The person proceeded against did not at any time supply the product to another.

The only supply was not in the course of the supplier’s business and that either section 2(2) does not apply to that person or does so only as a result of the things done otherwise than with the view to profit.

The defect did not exist in the product at the relevant time.

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

A further point which limits the use of the Consumer Protection Act is time restraints. The basic limitation period for claims under the Act is 3 years from the time of injuries sustained or from the point when the defendant could reasonably have known of the claim. There is also a “long-stop” limit which says that no claim can be bought against the manufacturer more than 10 years after the product was put into circulation. This is thought to be a serious limitation on the Act as many people may not be aware of their legal rights until it is too late. There is also the possibility that a defect in a product may not appear until after the 10 years are up.

The general safety requarements 2005 prohibits producers from placing unsafe consumer products on the market and imposes on distributors a duty of care in this respect [5] .