consumer protection law

CONSUMER PROTECTION LAW

Consumer protectionIn Kenya there is no specific law dealing with consumer law. The law is scattered in various statutes and private law measures. In Kenyan laws there are two measures:

1. Private law measures, contained in certain topics in the Law of Contract and Law of tort, which are relevant.

2. Public law measures. Public law measures that indirectly protect the consumer. In UK they have a specific consumer protection law, The Consumer Protection Act 1987.

The most important statutes are:1. The Trade Descriptions Act, which follows the British law. It covers that if you make certain descriptions in goods and services and if that description is false you are covered by the Act. It contains very comprehensive measures.

3. The Standards Act. This deals with certain specific standards and any person who is either manufacturing, producing or exporting, the goods must be according to the specifications set by this Act. The statute also establishes the Kenya Bureau of Standards.

4. The Weights and Measures Act. Under this law contains measures against shortfalls. Weights and Measures Department, created under the act, enforces this Act.

5. The Restrictive Trade Practices, Monopolies and Price Control Act6. The Foods, Drugs and Chemical Substances Act7. The Pharmacy and Poisons Act. Controls quality and sale of drugs and over

the counter sales.8. The Public Health Act. 9. The Fertilizers and Animal Foodstuffs Act. What kind of fertilizers to be use

and quality of animal foods.

Then there are Acts which control professions:The Law society of Kenya ActThe Medical and Dentists ActThe Nurses ActThe Architect Act.

In private law measures there are also Acts of Parliament.

The Private Law Measures

Law of Contract

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Law of contract, general as well special contracts for consumer protection:The Sale of Goods ActThe Hire Purchase ActMisrepresentation: This is one of the most important provisions. This is a pre-contract statement that is false/misleading. If it is false then the party who has made the false statement has made misrepresentation and therefore the contract is voidable. Note the Trade Descriptions Act. Statements made before contract include advertisement (which is an invitation), catalogues, brochures, price list, etc. in which they are supplying certain information. If these are false, can this be taken as misrepresentation?

Sales of Goods Act is also a special contract. There are certain terms that are implied in every contract of sale. Protects the consumer directly. Before this act the rule was Let the buyer be aware.

Terms are express agreement between the parties. They are part of the contract. May be express or may be implied.

How can terms be implied? The several ways: (1) implied by customs in a trade or business (2) statute such as the Hire Purchase and Sale of Goods Acts; (3) courts, in order to give business efficacy to the contract then the court will imply certain terms; judicial decisions of the courts.

Consumer protection covers goods as well as services.

Inclusive definitions—such as the Sale of GoodsExhaustive definitionsChattels personalChattels realMoveable propertyImmoveable propertyChoses in action (claims that are actionable)

Goods under the Sale of Goods Act does not include money, choses in action, land and structures on land

Davies v Samuels: the question arose whether services are covered in the Sale of Goods Act. A husband went to a dentist for dentures for his wife and they agreed on a certain price. The dentist made the dentures for the wife but they did not fit properly. The dentist said we never agreed that they should fit your wife’s jaws. Husband refused to pay and the dentist sued him for breach of contract. And the question was whether it was a contract for the sale of goods or the provision of services? The court said if was a contract of sale of goods, then the Act will apply, if not it will not apply. The

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court said it will imply certain conditions: if it was service provided it must fit the purpose for which it was intended.

The deficiency of contract: they do not cover a third party benefiting the contract. Privity of contract. This is the main weakness of the contract law. So their scope is limited.

The other problem is the questions you have to answer: Who is the consumer? Why protect the consumer?What measures to protect the consumer?

Who is the consumer? How do you define the consumer? The Molony Committee was establish to suggest ways and means to protect the consumer. It gave the definition: “Any person who purchases goods and affected by it is a consumer.” But this definition does not cover consumer of services. This is another drawback to the contract law – it only protects the person who has made the contract.

In tort these conditions are not required.

Exclusion clauses or limitation clauses.Here the law allows a party to the contract to exclude or limit his liability. Kenya follows the common law ( if is reasonable). But in UK they have The Unfair Contract Terms Act, e.g. injury and death cannot be excluded from a contract.

The tort law

The main rules1. Negligence, provided in Danogue v Stevens is still relevant to consumer

protection. The manufacturer owes a duty of care to the ultimate consumer (House of Lords decision).

2. Product liability rule. If a manufacturer sup0plies unsafe goods to a consumer he shall be liable for defective product under the principle of Donogue v Stevens (1932). The Donogue v Steven expanded. In UK and USA product liability is also a statutory provision. In Kenya it is common law, under tort.The neighbour principle. Lord Atkin asked, who is my neighbour…the person who is in your contemplation …when you are directing your mind to …your neighbour is your consumer. So a consumer who is a person who uses goods or services and affected by it, any person. We are widening the definition of consumer.

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Christine Mpaka, Consumer Protection: defines consumer as any person who uses goods or services and affected by it, any person. We are widening the definition of consumer.

In Donogue a consumer is the ultimate consumer.

Here a consumer defined as a person who uses goods or services and is affected by it.

Ralph Nader—guru of consumerism—said consumer protection must be a constitutional right and consumer means any citizens who has suffered because of the provisions of goods or services.

Occupier’s liability. Covered by The Occupiers Liability Act. There are two situations, (1) the occupancy duty and (2) activity duty.

The Sarit Centre case.

Why protect the consumer? What do you protect the consumer from?Consumer does not know what is in the goods and therefore needs to be protected from unsafe goods.Secondly, the consumer needs to be protected from deficient quality of goods or services, i.e. the quality is poor.Thirdly, the consumer needs to be protected from fraudulent or misleading or undesirable trading practices.Fourthly, the consumer needs to be protected from insufficient information to exercise prudent judgmentFifthly, economic exploitation because of lack of competition or excessive prices.

Sixthly, protection from short measures or weightsSevenly, protection from eviction and excessive rents

All these are legal measures. But there are also extra-legal measures where you do not go to court, such as consumer organizations

Consumer education: the consumer must be educated about their rights and the services and goods that are available in the market.

Which. Gives such education in UK.

Introduction to Consumer Protection Law

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The rise of consumerism in the 20th century coupled with the multiplication of products and services in the market has led to increased problems for consumers with regard to the quality of goods and services and their prices and general availability. The choice for the consumer is made difficult due to the range of available options and aggressive advertisement for each type of goods and services. Some goods and services call for expertise in discerning what shortcomings might have and such expertise may not be available to all consumers. The interest of multinational corporations in the world market present its special problems for developing countries who do not measure up to the bargaining muscle of the said corporations. Such corporations may offer different standards of goods in the developing countries from those they offer in developed countries and therefore there is a need for legal mechanisms to regulate consumer products and services.

Definition of Consumers

In the literal sense a consumer is a person who purchases goods or services. The Molony Committee on consumer protection in Britain regarded a consumer as one who purchases or hire-purchases goods for private use or consumption.

The private consumer of services is a consumer though the Molony Committee did not consider it. Thus under this definition the consumer is purchaser of goods or services supplied by another. However if we take consumer as a person who purchases goods or services, then a Construction Company purchasing building materials for use in the construction of housing estate would be acting as a consumer. However, for the purpose of consumer protection law the term consumer has a narrow meaning which is based on capacity in which the consumer acquires goods or services and the capacity in which the supplier of goods or services supply them.

The general view of the consumer or at least that given by modern consumer legislation is often individual dealing with a commercial enterprise. However it is also the case that the term consumer encompasses a person who makes use of the services provided by the public sector undertakings or private monopolies subject to public control. On this basis consumer protection law would also cover complaints by individuals about services provided by public sector undertakings such as Kenya Railways, Kenya Power and Lighting Company, Kenya Airways and city councils. Furthermore in the public sector the consumer might also have reason to complain about the services he has received in government hospitals.

These definitions of consumer are narrower and also broader at the same time. They are narrower in the sense that the consumer is defined as a

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person who purchases goods or services in that situation the definition covers only consumers who have contractual relationships with the supplier of goods or services. At the same time they are broader in the sense that they apply also to those consumers who consume goods in manufacturing of other goods.

Christine Mpaka defines consumer as any person who uses any goods or services and can be any person who is affected by the use of those goods and services supplied by other persons. This definition is wider than the other definitions because it has been realized that limiting the term consumer to purchasers is undesirable because many people use goods or services that they have not bought and if those goods occasion harm to a user as opposed to purchaser, he or she would be left without a remedy hence the definition of a consumer should be broadened to include anyone who consumes goods or services at the end of the chain of production. The definition by Mpaka is wider in the sense that it covers both the contractual and non-contractual consumer.

In Donaghue v Stevenson it was held by the House of Lords that a manufacturer is liable for defective product to the ultimate consumer even if there is no contractual relationship between them. In that case a consumer has been defined as a person who is in contemplation of the supplier by directing his mind to the acts or omissions in question. This would cover all types of consumers for example in case of certain services such as medical services avail free of charge.

The American guru of consumerism Ralph Nader has taken the view that the term consumer should be equated with the word citizen and that the consumer protection law should be regarded as an aspect of protection of civil rights.

CONSUMER PROTECTION

The term consumer protection has been taken to mean those measures which contribute directly or indirectly to the consumer assurance that he will buy goods of a suitable quality appropriate to his purpose. That they will give him reasonable use and if he has just complaints there will be means for redress (Molony Committee Report) thus the term consumer protection covers a wide range of areas including

(a) Unsafe products or goods;(b) Qualitatively deficient goods or services;(c) Fraudulent misleading or unfair trade practices;(d) Insufficient information to exercise a prudent buying decision;(e) Economic exploitation through lack of competition;(f) Protection from excessive prices or charges;(g) Protection from short measures;

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(h) Protection from health hazards.

The European Council adopted a consumer protection and information programme listing five fundamental rights of the consumer

1. The right to protection against health and safety hazards;2. The right to protection of economic interest;3. The right to advice, help and redress;4. The right to information and education;5. The right to consultation and representation

The term consumer protection involves two aspects; a preventive one and a remedial one. The former encompasses measures that regulate the supply and quantity of goods or services ensuring that the consumer is not ripped off. It also includes the education of the consumer to make him conversant with the varieties of goods and services available to him thus enabling him to make an informed choice on any particular product or service. This measure also educates the consumer to make him conversant with his rights. The latter measure is concerned with the redress for those consumers whose interest have been adversely affected for example the standard set in the Kenya Bureau of Standards established under that Act is a preventive measure for consumer protection in the sense that no goods below a certain standard can be supplied in Kenya whether locally manufactured or imported.

On the other hand the Sale of Goods Act is a remedial measure in that if a seller is in breach of an implied term under the Act the buyer can sue the seller for damages.

Given that nobody is compelled to use goods or services supplied to him, the question arises why a consumer needs to be protected. In the modern society most people find themselves in a situation where they have to purchase or use certain goods or services. The buyer or user is not always at par with the seller or provider of the service. He does not have the same bargaining power as that of the supplier. The monopoly enjoyed by certain providers of goods or services makes it easy for such providers to dictate the terms to the consumer.

The other issue that needs to be addressed is what would comprise the consumer interests. These are discernible expectations of consumer with regard to product and services that he must make use of. The consumer expects that the product or services are suitable and appropriate for his intended purpose. These expectations can be elusive if products or services are falsely described or they are qualitatively deficient or unsafe. The consumer can only find out the defect once he has purchased or used goods or services. The consumer is also concerned particularly in Kenya about the

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availability of products and services that he needs. Price is also of importance to a consumer. This regulates what a consumer considers to be his needs. The price tag is a determinant for most consumers and the cheaper the product the better for the consumer.

In the case prepaid goods the consumer wishes to be sure that the marked quantity is the actual quantity of goods supplied. He is also concerned about the safety of the products or services. In this respect he would also like to have adequate information about the use of any product or service to avoid endangering his and lives of others.

Consumer Protection Measures:

There are several legal instruments to regulate consumer products and services. However it must be said at the outset that there is no specific legislation in Kenya to protect consumers as such but there are several private law and public law measures which touch upon the consumer protection though these measures are not directly concerned with the consumer protection.

PRIVATE LAW MEASURES

Consumer protection in private law falls within the domain of contract and tort since all the rights in the two categories are private law rights, the aggrieved consumer has to identify his claim and proceed to bargain for it and find a claim should the need arise to obtain redress. The state’s only involvement here is by availing its personnel to deal with the complaint once a suit is filed in a court. Should the consumer decide to take no action, then the state has absolutely no interest in the affair and the consumer bears the loss on disadvantage.

ContractThe Law of Contract plays some role in protection of consumers. The areas of general law of contract which have a bearing on consumer protection are:

1. Misrepresentation;2. Terms implied by courts in relation to services; and3. the Exclusion Clauses.

The law of contract is based on the concept of equal bargaining power. Consequently parties to a contract are deemed to be capable of negotiating terms that are fair to themselves. This assumption of equality is untenable. In the case of many products and services many undertakings that have monopoly in supply of goods and services can easily dictate the terms to the consumers. They can assume an attitude of take it or leave it. This places the consumer in a very difficult position given that he requires those services or products and may not be able to do without them. Once a consumer

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enters into a contract with a supplier of goods or services, it is up to him to enforce the contract in case of breach. If he is ignorant of his rights, then he remains without redress even in instances where the consumer is cognizant of his rights he may be discouraged by the amount of time it takes to see a matter determined in a court of law. The lawyers fee for services may also be prohibitive. The law of contract has ingrained in its principles that do not generally favour all consumers for example the doctrine of the privity of contract prohibits a person to seek redress when he has no contractual relationship with the supplier.

The Sale of Goods Act and the Hire Purchase Act are special types of contract. The Sale of Goods Act gives certain rights to the buyer of goods and it implies certain terms in each and every contract for sale of goods though the parties to the contract of sale may opt out of this implied terms by means of expressed agreements. These implied terms include that the seller should have the right to sell, the buyer should have quiet possession of the goods and the goods supplied must be free from any charge or encumbrance. It also covers sale by restrictions, the term as to merchantability and fitness for purpose and the sale by sample as relates the sale by description and sample.

The Hire Purchase Act also gives certain rights to the hirer. This includes terms similar to those implied under the Sale of Goods Act. The Hire Purchase Act also protects a hirer by means of several rights which are protected under the Act such as where the hirer has paid two thirds or more of his instalments the owner of the goods cannot take repossession of the goods without an order from the court.

Law of TortUnder the law of tort the consumer can seek redress from the provider of goods or services if he can prove negligence on the part of such provider that leads to harm befalling him. The remedies in tort law are wider in the sense that although there is no privity of contract between the ultimate consumer and the manufacturer, the manufacturer of supplier maybe held liable for negligence.

A consumer can also fall to the law of tort in instances where he is dissatisfied with the quality of services he obtains from a professional person such as a doctor or a lawyer. In certain cases the law of tort can also provide remedies for negligent misstatement causing economic loss. However the law of tort has its own weaknesses. The main weaknesses that it is a part of private law and therefore it is for the consumer himself to take an action. Sometimes the consumer may not be aware of his rights or he may be reluctant to go for time consuming litigation.

PUBLIC LAW MEASURES

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In Kenya certain statutes have been enacted which indirectly protects consumers or they regulate consumers products of services. These laws are prescriptive, prohibitive and protective. They carry sanctions which are restrictive, prohibitive and protective. They carry sanctions which are to be enforced as penalties against non-conformers. The state places positive duties on providers or sellers of certain services and goods. It uses its machinery to detect non-conformers and proceeds to prosecute the culprits. The complexity of the market has dictated this developments. Measures cannot be left to the consumer and provider to negotiate as this may occasion a lot of inconvenience on the ignorant consumer who may not be able for instance to tell that the pre-packed food is unwholesome or of less weight than indicated on the package. Public law takes the form of statutes enacted empowering certain government sponsored bodies or departments to ensure the adherence of such standards of products or services. The full range of public law measures is very extensive. The following examples show some of their ambit.

THE TRADE DESCRIPTIONS ACT

The Trade Descriptions Act controls business activities at large in so far as they involve descriptions of goods or services. Criminal sanctions are provided for non-compliance.

STANDARDS ACT

Under the Standards Act the Kenya Bureau of Standards is set up to promote standardization in industrial area to provide facilities for testing instruments and commodities. The Act provides for the inspection of goods to comply withy certain specifications to ensure that they conform with the standards specified by the bureau. The Act makes its an offence to resist the visit of the inspectors in the discharge of their duties for which sentences or fines or imprisonment are imposed. The court is given powers to order confiscation of all substandard goods that often again the provisions of the Act the Bureau investigates complaints from consumers who purchase unsatisfactory goods and offers suggestions on improvement of future production.

THE WEIGHT AND MEASURES ACT

The Weight and Measures Act is concerned with the accuracy of weighing and measuring at the time of sale to the consumer. All weighing and measuring machines are required to bear a stamp of verification showing

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that they are accurate instruments. Inspectors are empowered by the Act to inspect and test all such machines and ensure they are in correct mechanical condition. Breaches of prohibition imposed by the Act are punishable as offences. Such prohibitions are against selling goods that are less than the indicated quantity. The Act creates an agency in the form of the Weights and Measures Department in the Ministry of Commerce who9se inspectors are trained all over the country in the lacuna of legislation is with respect to imported goods. The Act makes no provisions in relation to import goods and the limited protection it offers is diluted by this fact.

THE FOOD DRUGS AND CHEMICAL SUBSTANCES ACT

The Food Drugs and Chemical Substances Act makes provision for the prevention of adulteration of food, drugs and chemical substances. It is an offence to sell any food that contains poisonous substances or that is unwholesome or unfit for human consumption or that is adulterated or that consists in whole or in part of any filthy, putrid, disgusting, rotten, decomposed or deceased substances or foreign matter. It also makes it an offence for any person to sell, prepare, package, convey, store or display for sale any food under unsanitary conditions. Similar rules apply to drugs and cosmetics. With respect to cosmetics the Act provides that any person who sells any cosmetics that contains any substance that may cause injury to the health of the user is guilty of an offence. Cosmetics and drugs should also not be prepared, preserved, packed or stored under unsanitary conditions. Provisions are also made for supervision, entry and inspection to ensure that the Act is complied with. Penalties are prescribed for those breaching the provisions.

THE FERTILIZERS AND ANIMAL FOODSTUFFS ACTThe fertilizers and animal foodstuffs Act regulates the importation, manufacture and sale of agricultural fertilizers and animal foodstuffs and substances of animal origin intended for the manufacture of such fertilizers and foodstuffs. It provides among other things that no person shall import any fertilizer or any foodstuff which contain bone or any other substance derived from animal carcass unless he furnishes a certificate from the country of the origin showing that the bone or substance has been completely sterilized and is free from pathogenic or disease causing organism. All the breaches of the provisions of the Act are punishable as offences. It makes provisions for inspection of all relevant stuff and of plants producing such stuff to ensure that they are wholesome.

THE PUBLIC HEALTH ACTThe Public Health Act makes provisions for securing and maintaining health. It requires the notification of infectious diseases and enjoins occupants of buildings to report the existence of such a disease to the health authorities.

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The Act makes it an offence for any person to willfully expose himself in a public place while suffering from such a disease. Persons infected with venereal diseases are enjoined by the Act to seek medical treatment and not to take up employment in places selling food or involving the care of young persons. The Act also requires warnings of risk to be printed in cigarette packets. Penalties in the form of fines and imprisonment are prescribed. The Act also makes detailed provisions with regard to leprosy, smallpox, sanitation of housing, water supplies, meat, milk, mosquitoes and cemeteries etc prescribing penalties for all such offences.

THE RESTRICTIVE TRADE PRACTICES, MONOPOLIES AND PRICE CONTROL ACT

This Act attempts to encourage competition in the market and for that purpose it controls concentration of government power and mergers and takeovers. It also controls restrictive trade practices such as price fixing, discriminatory trade practices, control of output of goods or services, withholding of supply, market division, territorial restrictions, resale price maintenance, tying practices for collusive binding, collusive tendering and refusal to deal. The Act also makes provisions for price control although at the moment there is no item under the price control provisions of the Act but these provisions have not been repealed and can be used to buy the government if it desires so.

THE MEDICAL PRACTITIONERS AND DENTISTS ACTThis Act prohibits unqualified persons from practicing medicine by implication therefore any person who holds himself out as a practitioner may be relied upon by the consumer as being qualified. If there is any misfeasance by a medical practitioner the consumer of services received from such a practitioner can be reported to the Medical Practitioner and the Dentist Board who may investigate the matter and can take disciplinary action against the practitioners.

Consumer Protection Law-Lecture 3

Implied terms:Merchantable qualityFitness for purpose

Conditions: the seller sells in the course of business.

The seller must sale or supply in the course of business. But other conditions will apply even in private sales, such as description, sample.

The Trade Descriptions Act requires that the buyer must acquire the goods in a non-business capacity.

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Case of a car hire firms. Used to buy new cars and after two years they used to sell those cars. Are they selling the course of business? What the House of Lords said is that you have to consider how often they sell. If they do it regularly then they are doing it in the course of business.

The Trade Descriptions Act

Sale or supply must be in the course of business or the buyer must acquire the goods or business in a non-business capacity. Several consumer protection statutes require that the seller or supplier must sale or supply in the course of business. For examples the Sales of goods Act provides that the implied condition of merchantable quality and fitness for purpose shall be implied in a context of sale only if the seller sales in the course of his business. Similarly section of the Trade Descriptions Act provides that the false trade description applies only where any person applies a false trade description or supplies or offers to supply any foods in the course of any trade.

Similarly in Britain section 12 of the Unfair Contracts Act 1977 provides a provision that a party makes the contract in the course of business. [This Act deals mainly with exclusion clauses. In Kenya there is no statutory law to the effect and common law is what applies.] It seems plain that they cover not only a seller making a regular sale of goods in which he deals but a seller who buy by way of business, manufactures or obtains or sells a commodity for the first time. This is supported by authority on Sale of Goods Act (“deals in goods of that description”). It could then be argued that the purpose of the wording in this context is to exclude only sales by purely private sellers. It appears that a farmer who sells off a surplus tractor or a medical practitioner or advocate or local government department disposing of surplus equipment for example sells a used typewriter used in the course of business and so attracts the operation of the statutory term.

In Havering LBC v Stevenson, a car hire firm had a false trade description as to mileage. Though not car dealers the firm regularly sold its cars after a period of use, it was held by the divisional court that the sale was in the course of its trade or business as a car hire firm.

And in Fletcher v Stedmore the defendant was a panel beater who bought, repaired and sold old cars. A dealer and his prospective customer visited him and he falsely stated that the car had a little good engine. The panel beater sold the repaired car to the dealer and he resold it to the customer who was impressed the panel beater’s remarks despite the lack of any contextual relationship between the eventual buyer and the panel beater, the latter was directed to be convicted of applying a false trade description in the course of his trade or business contrary to 11(a) of UK law (section 3(a) of Kenya law).

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Also in Davis v Sumner the activities of a self-employed courier whose car’s odometer had gone right round the clock, thus presenting a false reading when reviewed on his sale of the car. Here he owned the car but in the past he had hired his vehicles. The House of Lords held that a normal business practice of buying and disposing of cars had not been established and therefore the relevant sale was therefore not caught by the provisions in section 11(a) (section 3 (a) of Kenya Trade Descriptions Act). This decision of the House of Lords suggests that there must be at least some degree of regularity. Sporadic sales would not be covered.

Individual not acting in a business capacityThe standard perception of a consumer is often individual purchaser or acquirer of goods or services. Generally a consumer is regarded as a non-business purchaser of goods or services but sometimes it is difficult to decide when a person acts in a business capacity. In a broad sense, every time a company enters into a contract it does so in the service of its business because if it was not the case the transaction would be ultra vires. Thus it could be argued that where a company, which runs a grocer’s shop, buys a new delivery van, it acts in the course of the business. And alternative view is that a company can be a consumer purchaser where the purchase is not for some definite business purpose and is one which is not regularly made by that company.

In a civil case, R & B Customs Brokers Company Ltd United Dominion Trust Ltd, the plaintiff company was carrying on the business of freight forwarding agency purchased a car bought for business use and for private use of its director. It was alleged that the defendant finance company was in the breach of the implied terms in the Sale of Goods Act that the car would be fit for the purpose for which it was intended, namely, driving it in English weather conditions since the roof had leaked.

However, the defendant finance company sought to rely on an exclusion clause in the contract. Liability for implied terms under the UK Unfair Contract Act cannot be excluded where the buyer deals as a consumer. The court of appeal held that since the purchase of the case was only incidental to the business of a freight forwarding agent the transaction would not be seen as an integral part of business carried on by the plaintiff as there as no degree of regularity in the type of purchase concerned.

It therefore follows that the company had purchased as a consumer and the provisions of the Unfair Contracts Act prevented the exclusion clause from taking effect. It may be noted that the Unfair Contracts Act is not applicable in Kenya and the exclusion clauses are still governed in Kenya by the common law and such exclusion clauses shall be valid unless they are reasonable. Also under the Sale of Goods Act the parties whose contract of

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sale of goods can exclude implied terms under the Act by means of an express contract.The decision of the court of appeal in R& B Customs Broker Ltd may be criticized on a number of grounds:

First the interpretation put by the court of appeal of Unfair Contracts Act may not give effect to the intention of Parliament. The Act distinguishes between a business purchaser and a consumer and does not require the court to consider the purpose for which the goods are required.

Second the decision for the ban on the use of exclusion clauses on consumer protection is that the consumer is weak in terms of bargaining power but the same cannot be said of a business consumer particularly a company. Dillan LJ in R&B Customs Brokers considered obiter that had the purchaser been in the cause of business the exclusion clause would have satisfied the reasonableness test because the company was dealing in the course of business. It appears that this is the true position of law with regard to Kenya.

Third, even if the plaintiff did not contract in the course of the business, there is a strong argument to the effect that company held itself out as acting in the course of business since the company made the contract in its corporate name. When these matters taken together put to a purchase in the course of business and not one made by a consumer devoid of commercial experience.

The Trade Descriptions Act: The Trade Descriptions Act in Kenya follows exactly the same The Trade Descriptions Act of UK.

Section 3 of Kenya The Trade Descriptions Act equivalent to section 11 of UK.

Section 4 of Kenya The Trade Descriptions Act equivalent to section 14 (2) of UK. This is with regard to services.

Section 6 of Kenya The Trade Descriptions Act equivalent to section 14 of UK (This is in regard to services).

Section 8 of Kenya The Trade Descriptions Act equivalent to section 2 (a) of UK.


Section 10 of Kenya The Trade Descriptions Act equivalent to section 4 of UK


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Section 19 of Kenya The Trade Descriptions Act equivalent to section 24 of UK. This section is very important: it provides the defenses.

Prohibition of false trade descriptions in relations to goodsIt has been recognized that there is a need to protect consumers and honest traders alike against the misleading practice of falsely describing goods in the course of trade. The Trade Descriptions Act has created two major offences of strict liability in relation to goods, namely that of applying false trade descriptions to goods in the course of trade and supplying or offering to supply in the course of trade any goods to which a false trade description is applied. Goods have been defined under section 2 (1) of the Act to include ships and aircraft, things attached to land and growing crops. Ship has again been defined to include any boat and any other description of vessel used in navigation.

Section 3 of the Act creates two offences by providing:

Section 3 any person who in the course of any trade (a) applies a false trade description to any goods or (b) supplies or offers to supply any goods to which a false trade description is applied--

shall be guilty of an offence.

First type of offenceThis definition has several elements and to understand the provisions in section 3 it is necessary to analyze a number of points in order:

1. Any person. This includes a limited company. Section 16 special contains provisions dealing withy offences by corporations making any director, manager, secretary or other similar officers jointly liable if the offence is proved to have been committed with their consent or connivance or is attributable to negligence on their part. Any person may also include a manufacturer, a wholesaler, and a retailer. It is also possible for a buyer to apply a false description. In Fletcher v Budgen, a car dealer told a private customer that his car was irreparable and fit only for a scrap. The dealer then bought it for two pounds, carried out repairs costing 56 pounds, obtained a test certificate and advertised it for sale at 135 pounds. The divisional court held that an offence would be committed by a buyer who applied a false trade description to goods, for example, fit only for scrap when buying them in the course of his trade or business.

2. Trade. Trade is defined by section 2 of the Act to include business and profession.

3. In the course of a trade of business.

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4. Applies. The word applies in section 3A is amplified by section 10 of the Act. A person applies a trade description to goods if he (a) fixes or annexes it to or in any manner makes it on or incorporate it with (i) the goods themselves or (ii) anything in, on, or with which the goods are supplied; or (b) places the goods in, on or with anything with the trade description has been affixed or annexed to, marked on or incorporated with or places such any such thing with the goods; or (c) uses the trade description in any manner likely to be taken as offering to the goods.

In Donnelly v Rowlands a milk retailer sold milk bottles. The foil caps of which read “Untreated milk produced from TT Cows” followed by his name and address. The bottles themselves were marked with the names of various suppliers to whom the actual bottles belonged. The prosecution appealed from the magistrate dismissal of the information alleging that he had sold bottles of milk to which false trade description had been applied. The appeal was also dismissed by the divisional court. On further appeal it was held that the words on the cap of the milk bottles were inaccurate trade description and the words on the milk bottles which could have been false trade description had the public been misled into thinking that the names thereon had something to do with the production of milk could only reasonably apply to the ownership of the bottles. The defendant was therefore saved by the wording on the cap, which was required by the regulations.

Consumer Protection- Lecture 4

In most cases the trader has quite clearly described the goods and thus applied a trade description to them. However, the terms applied was given a wider meaning by the divisional court. In Tarleton Engineering Company v Naffrass a dealer sold a car with a false odometer reading. He had not altered the odometer himself. He did not know it was false, nor did he repeat the reading. It was held he had applied a false trade description to the car.

It is difficult to justify such a wide interpretation of any of the expressions used in section 10. However, it was possible to bring the prosecution under section 3 (b) on the grounds that the trader had supplied the car with a false trade description.

Nevertheless, it now seems to be settled beyond doubt that a person applies a description to goods even in the absence of a written or oral statement if he fails to take steps to correct a misunderstanding which is induced by a description borne by the goods themselves. Thus in Davies v Sumner the defendant applied a false trade description to the car in that he represented that it had travelled 18,100 miles while the true mileage was 118,100 by merely standing by and not disclosing the truth.

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Supplying goods with a false trade description: Section 3 (b)The second of the offences contained in section 3 is committed when a person supplies or offers to supply any goods to which a false trade description is applied. By virtue of section 2(2) (a) a person exposing goods for supply or having goods in his possession for supply shall be deemed to offer to supply them. This section is deliberately widely drafted. It avoids the type of difficulties found in such cases as Fisher v Bell, where flick knives were displayed in a shop window. This was held to be an invitation to treat rather than an offer for sale. Such goods would have been exposed for sale even if the goods to which a false trade description is applied belong to someone else so that it could not be said that the seller has in his possession for supply. He still exposes them for supply. The trade Descriptions Act provides that the position for supply is proved whether or not the supplier is selling to the public. It may be noted that the word “supply” is wider than “sale” and would seem to cover free gifts, if the supply is made in the course of trade or business as well as hire and hire purchase transactions, goods for gift token, and the like.

Knowledge

It appears from Cottee v Douglas Seaton Ltd that a supplier does not commit this offence if he neither applies the description to the goods himself nor knew or had means of knowing that this has been done by another. However, where a supplier knows that a description has been applied even though he does not know that it is false he is liable; for example, selling a car within inaccurate odometer. In the above case, dealer A patched up the bodywork of the car, which he sold to dealer B. The repair was so skillfully done that B did not discover it. B sold it to C. It was held that B had not committed an offence under section 1(1)(b) [Section 3(b) of Kenya Act] as he was unaware of the defect.

Knowledge that a trade description was applied was essential. In short, knowledge of the existence of the description is a pre-requisite but not the knowledge of its falsity.

Time of application

No offences are committed under section 3 where the description is applied to goods after they have been supplied. In Hall v Wickens the division court upheld the acquittal of a motor dealer who had falsely described a car as not being in need of repair 40 days after supplying it to a customer. Hence the description must precede or be contemporaneous with the supply of goods.

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Trade descriptions in advertisements

Advertisements tend to generalize so it is necessary to provide a fair test to enable the court to identify whether a particular advertisement applicable to a class of goods had applied a false description to particular goods. The Act provides that the trade description shall be taken as referring to all goods of the class whether or not in existence at the time the advertisement is published for the purpose of determining whether an offence under section 3 has been committed.

Advertisement has been widely defined by section 2 (1) to include a catalogue, a circular and a price list. But a printed, filmed or broadcast trade description is not deemed to be made in the course of trade or business unless it forms part of the advertisement [Section 2(2)(b)]. This provision is designed to prevent prosecutions founded on descriptions contained in genuine news items.

A false trade description to any goods: sections 8 and 9

The definition of a false trade description is contained in sections 8 and 9 of the Act. Section 9 says that a false trade description is a trade description, which is false to a material degree and also includes within the expression clause, descriptions which though not false are misleading.

Anything likely to be taken for an indication of the methods specified in section 8 though not a trade description which if false is deemed a false trade description under section 9 (3).

The term trade description is defined comprehensively in section 8 as an indication direct or indirect and by whatever means given of any of the following matters:

Section 8 (1) (a): identity, quantity, size or gaugeFor the purpose of the Act quantity includes matters such as length, height, width, area, volume and capacity

Section 8(1) (b): method of manufacture, production, processing or reconditioningThis clause covers statements to the effect that the consumer goods had been made or processed in a particular manner such as homegrown or handmade but whether this provision would apply to a claim that eggs are “free range” is possibly doubtful although the word production is broad

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enough to cover the matter and in any case either section 8 (1) (e) or (g) might apply .

Section 8(1) (c): CompositionThis provision covers statements concerning the material from which an article is made, for example a statement to the effect that bread is made from whole meal grain. Similarly a knife is made from Sheffield steel or that the content of a specified package contains sardines would fall under section 8 (1) ( c). Similarly a manufacturer who claims to produce vegetable lard (pig fat) also represents the composition of this product since the word lard without further qualification denotes the use of pig fat but in Wolkind v Pura Foods Ltd the description “vegetable lard” was considered to be the correct description because the qualification “vegetable” with the word lard indicates that the product is made of vegetables and not of pig fat.

Similarly the term “composition” would include misdescriptions such as natural mineral water; or a mixture of cotton and linen described as linen, or artificial silk stockings described as silk.

A more modern case illustrates that composition includes component parts. In British Gas Corporation v Lubock, a Gas Board brochure stated with regard to gas cookers for sale that “ignition is by hand-held battery torch”. This was held to be a trade description relating to composition of goods and an offence was committed when a cooker in a modified form was sold without a torch despite a notice that the specification might be changed without notice. This description would also be regarded as coming within clause (e) of section 8 (2), any physical characteristics not included in clauses from (a) to (d) of section 8 (1)

Clause 8 (1) © also appears to go further than the ingredients from which the thing is made and may also include parts missing from the goods intended to be supplied as a package.

Section (8) (1) (d): Fitness for purpose, strength, performance, behaviour or accuracyA description of a commodity such as the methods listed here are all of qualitative nature which is inevitably likely to produce problems because the required quality of goods will depend on a range of factors including the price of the goods. Where a car dealer makes an extravagant statement about the physical performance of a second hand car section 8(1) (d) may apply.

Also to describe an unroadworthy vehicle as a beautiful, a good little runner or as having a good engine would appear to amount to the application of the trade description relating to the quality of its performance. See Robertson v Dicicco where it was held that the question to consider is what

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the ordinary man would place in the words used in the description. This statement appears remarkably similar to trade puffs, which do not attract liability for misrepresentation under the law of contract.

Less difficulty has been encountered in respect of objectively quantifiable statement about the performance. For example a diver’s watch described as waterproof is not which fills with water being immersed in a body of water for an hour, or to describe such a watch when it leaks (See Sherrat v Geralds). Or to state that a microscope is capable of magnifying up to 455 times when its maximum useful magnification is 120 times (See Dixons Ltd v Barnett) is to represent the performance capabilities of the articles to which the description is applied.

Section 8 (1) (e): Any physical characteristics no included in the preceding paragraphIn this if anything is omitted from the list of characteristics in section 8 (1) (a) to 8(1) (d), section 8 (1) (e) provide a safety net in relation to such physical characteristics. It would appear that the statement relating to component parts applied to goods supplied such as free gifts or a car to which additional accessories such as a tool kit or a sun proof is fitted are best explained as relating to physical characteristics not covered by earlier paragraphs of section 8 (1).

Section 8 (1) (h)A description of a commodity such as Norfolk King turkey or Havana cigars or Kitui honey would appear to fall under section 8 (1) (d), but conventional description arising out of trade uses properly does not. Yorkshire pudding or Cheddah cheese are not required to be produced only in the area the name suggests.

This paragraph also covers false statements about the date of manufacture, e.g. in Ront Ledge v Ariza Motors Ltd, it was held that an offence was committed under section (1) (section 3 of the Kenya Act). A car registered in 1972 was sold as a new 1975 model.

Even qualified statement of the age of the vehicle may not be sufficient to escape liability. Thus it would be unwise for a car dealer to state the approximate year of manufacture of the car as 1987 when he is not sure how old the care is (See R v Coventry City Justices ex parte Farrand)

Consumer Law-Lecture 5

Section 8 (1) (e): any physical characteristics not included in the preceding paragraphs

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This is the most frequently involved category of misdescription. The vast category of cases under this paragraph have been those involving the altering of car odometers in Macnab v Alexanders of Greenock Ltd it was stated that the distance which a car has traveled is just as much a part of its history as the places where it has been and the persons who owned it. The odometer figures is if accurate a silent historical record previous use.

Section 8 (1) (f): testing by any person and the result thereof

The wording of this paragraph seems to require a statement to the effect that goods have been tested and that they have passed this test. This paragraph may not cover that a car has been to an AA test without further indication that the test has been passed with would probably not be suffiicent. This is considered to be a defect in the Act and it has been proposed that where there is a reference to testing it should be presumed in absence of a statement to the contrary that there is an indication that the test has been passed.A statement to the effect that a car has a Ministry of Transport certificate would fall within this paragraph since the granting of certificate is conditional of the goods satisfying the MOT requirements. In this later event the seller of the car would be guilty of an offence but the content of the certificate is not to be taken as trade description applied by the garage providing the certificate since it clearly states it is not to be relied on (see Corfield v Sevenways Garage Ltd). In any event the statement is not associated with the supply of the goods.

Section 8 (1) (g): approval by any person or conformity with a type approved by any person

A statement to the effect that the goods confirms to Kenya Bureau of Standards specifications or merely display a kite mark, or Ag mark would fall under this provision. Similarly a claim to the effect that the goods are approved by a particular body, for example AA or a trade association or trade union could also suffice . It may also be the case that the use of trade mark of a manufacturer with national reputation can be said to imply conformity with a type approved by another person.

False representations of government approval or claims that goods have been supplied to another person constitute the formation of the offences in their own right. This paragraph was introduced to get false claims such as that certain encyclopedia were approved by a well-known educational institution.

Section 8 (1) (h): place or date of manufacture, production, processing or reconditioning

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Section 8 (1) (h)A description of a commodity such as Norfolk King turkey or Havana cigars or Kitui honey would appear to fall under section 8 (1) (d), but conventional description arising out of trade uses properly does not. Yorkshire pudding or Cheddah cheese are not required to be produced only in the area the name suggests.

This paragraph also covers false statements about the date of manufacture, e.g. in Ront Ledge v Ariza Motors Ltd, it was held that an offence was committed under section (1) (section 3 of the Kenya Act). A car registered in 1972 was sold as a new 1975 model.

Even qualified statement of the age of the vehicle may not be sufficient to escape liability. Thus it would be unwise for a car dealer to state the approximate year of manufacture of the car as 1987 when he is not sure how old the care is (See R v Coventry City Justices ex parte Farrand).

Section 8 (1) (i): person by whom manufactured, produced, processed or reconditioned

This covers goods which have been manufactured in the country in which last underwent a treatment or processing resulting in substantial change. Thus a trade description is applied where a petrol filling station advertises its products as Esso petroleum when it is trading in another product. See case of Roberts v Seven Petroleum Trading Co. In such cases the inference was that the advertised brand was being supplied. It follows from that where a name is printed on the goods it indicates that they have been manufactured by the persons named. It is because of this many suppliers of own brand products would be in serious difficulties.

Section 8 (1) (j): other history, including previous ownership or use

This covers such descriptions as railway lost property, unclaimed goods at the port, army surplus goods, one lay-owner and the like. And an indication of a vehicle’s age by reference to its date of registration or its suffix letter on a number plate is covered by this provision.

The majority of cases which have fallen within this paragraph have included inaccurate odometer reading on motor vehicles. But other matters relate to past history of the goods made available for supply will also be relevant. For example, a statement to the effect that the goods are shop-soiled, fire-damaged or salvaged stock would appear to relate to past history of the goods in question.

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Matters not covered by the section 8 (1)One of the major problems of the list of prohibited statements is that there could be circumstances in which a statement may mislead but they do not fall within any of the stated categories of trade description. For example, a statement to the effect worth a particular amount or represent “extra value” cannot amount to a trade description. In Cadbury Ltd v Halliday it was held that Cadbury chocolate supplied represent extra value could amount to a description as the assertion was not factual and therefore incapable of precise ascertainment.

However, it is arguable that a reasonable person might regard a statement such as extra value as implying extra chocolate for the same price and might therefore fall within section 8 (1) (a) because it is a statement relating to quantity. Others that might not be covered under section 8 (1) which may give a misleading impression include indications of the identity of the supplier or distributor of goods. A statement concerning the commercial standing of the manufacturer, supplier or distributor of goods such as ability to provide and after-sales service and a false statement about the content printed and recorded material.

Implied trade description

The Trade Descriptions Act provides that a statement in respect of one of the listed matters may be made directly or indirectly but this still requires an express written or oral statement to how they made the goods to which the description applies. It would appear that in addition to express statement a trade description may also be implied from the conduct of the defendant. Support for this view can be gleaned from the Act itself which extends the definition of a trade description to include anything likely to be taken at indication of a matter listed in section 8(1). The fact that there may be liability for an implied trade description is gathered from a number of falsified odometer reading cases. In a number of these cases there was a strictly no express statement but the court had no difficulty in applying he provisions of the Act to them. Similarly cars may be repaired in such a way that they tell a lie about themselves. However this principle cannot be taken too far. It follows from this that there must be a positive statement on the part of the defendant in order to give rise to a liability under the Act. However, it will appear to be the case that a person can give an indirect indication of a matter listed in section 8(1)(a).

Falsity

By virtue of section 9 of the Trade Descriptions Act a false trade description is one which is false to a material degree. This definition is based on the

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requirement that the description must be of such substance that it is capable of inducing a purchaser. Thus a statement which amounts to nothing more than a trade puff will not be treated as a false trade description on the basis that such a statement is not capable of inducing a purchaser (See Cadbury Ltd v Halliday). Where a statement is capable of verification it will attract liability only if it is false to a material degree. This suggests that a statement can be technically false; it is not likely to mislead anyone hence no offence is committed (See Donnelly v Rowlands).

A statement may also be false to a material degree not by virtue of what it says but by virtue of what it leaves out. For example to describe a motor vehicle manufactured in 1972 but registered in 1975 as new 1975 model is materially false since an average person would take the description to mean that the vehicle was manufactured in 1975 (Routledge v Anza Motors Ltd). However to call a car new when it suffered superficial damage which have been repaired using new part does not amount to commission of an offence (R v Ford Motors Ltd).

It is clear from these cases that whether or not a description will be held to be false to a material degree will depend on the context in which the words are used. For example, if what has been done to a new car is likely to diminish it value the description new may be regarded as false. Similarly the language used by the defendant will also matter. For example, one word taken on its own may be materially false but if it is qualified by other words it may become accurate. For example, the word ‘lard” implies the presence of pig fat but the words “vegetable lard” implies a different commodity when the statement on the packaging is that 100 percent vegetable oil is used (See Wolkind v Pura Foods Ltd).

False descriptions relating to services

Section 6 of the Trade Descriptions Act lays down provisions to control statements about services, accommodation, or facilities provided by any person in the course of any trade. It may be noted that a consumer is just as much concerned with the quality of the services as with the quality and safety of the goods which he acquires. In some cases the purchaser of many consumer goods will also involve making arrangements for services in the form of maintenance agreements. The term services, accommodation or facilities are not defined under the Act. However, section 6 (3) states that in relation to any services consisting of or including the application of any treatment or process or the carrying out of any pairs the matters specified in section 6(1) shall be taken to include the effect of the treatment, process or repair. There has been some doubt in the UK whether professional services are included under the Act but in R v Breeze it was held that professional services are covered by the Act. However, this problem does not

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arise in relation to Kenya because section 2 (1) defines trade to include any business and profession. Here again the oral as well as written statements are included.

However, although a statement made after the supply of goods have been complete is not an offence under section 3. Section 6 has a wide application. In Breed v Cluett a builder built a bungalow, sold it and afterwards falsely stated that it was covered by 10 years guarantee by a particular organization. The divisional court held that this was a statement as to the provision of services within section 14 of UK Act (section 6 of the Kenya Act).

The distinction between this case and Hall v Wickens under section 3 is that the provision of services may involve continuing obligation and had there been a guarantee that builder could have been called upon to provide the services during the guarantee period. This connection between the supply of services and the defendant’s statement was emphasized by the court of appeal in R v Bevelectric Ltd, etc. The three defendants were a company carrying on a washing machine repair business, a director and an employer. The statement that motors needed to be replaced implied that a genuine assessment had been made on the extent of any necessary repairs. They argued that the word provided in section 40 (1) (b) (iii) (Section 6. They argued that the word provided in section 40 (1) (b) (iii) (Section 6 (1) (b) (ii) of Kenya) covered statement as to services which traders were offering to supply or when on the course of supply but not those which had been provided in the past. The court of appeal disagreed with their argument and upheld their conviction on the ground that a false statement about services already provided is within the section if it was connected or associated with the supply of the services in question.

Conditions of application of section 6

Not all misdescriptions of services are covered by the provisions of the Trade Descriptions Act since there is a detailed list of matters in respect of which an offence may be committed. Furthermore there is a mens rea requirement as to the facts of the offence created. This matter apart, section 6 provide that it is an offence for any person acting in the course of a trade of business to make a prohibited statement. It follows that as in the case of section 3 an offence may be committed by any person whether he be the supplier of services or not provided he acts in the course of trade. Thus an offence may be committed buy someone who is not the supplier but has an interest in the outcome of the transaction entered by the customer. In Britain, a question arose whether a trade includes he activities of the profession for the purpose of section 14 of the UK Act.

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In R v Breeze it has been held that section 14 (section 6 of Kenya) was capable of applying to false statements concerning qualifications since such indication is likely to be taken to refer to the quality of services provided.

For the purposes of section 6 a statement must have been made . One obvious example of making a statement arises when a statement is made by another person. It is possible for a statement to be made without it being communicated to another. For example a statement is made when it is published in brochures which are posted in bulk to travel agents, when the message is passed by telephone, when the information is pushed to clients, and when the information is relayed by the persons to whom it is communicated.

Section 6 is not concerned with the statement that induces a contract; it does not matter that an offending statement is made after the conclusion of he relevant contract. Thus a mechanic who makes a false statement about the work he has carried out on his client’s car may still be treated as an offence under section 6 where he has already paid for the work done.

Consumer Protection- Lecture 6It is clear from section 6(1) of the Act that the knowledge of the falsity of a statement or recklessness in making the statement are alternative requirements. Section 6 (1) provides that it shall be an offence for any person in any course of trade

(a) to make a statement which he knows to be false or(b) recklessly to make a statement which is false.

Knowledge of the falsity of a statement

At first sight the wording used in section 6(1) (a) would appear to suggest that it is a mens rea offence. However, the House of Lords in Wings Ltd v Ellis have analyzed section 14 of the UK Act for Lord Scarman the basic issues between the parties was whether proper construction of section 14 (a) where the defendant had no knowledge of the falsity of the statement at the time of its publication but knew of the falsity and at the time when the statement was made by the complainant. The facts of this case were as follows: for 1981-82 winter season the appellant tour operator had distributed to travel agent a brochure giving details of accommodation provided for customers. Shortly after, the brochure was distributed . The tour operator discovered that the brochure contained a statement which was false to a material degree, namely that the accommodation provided in a hotel in Sri Lanka was with air conditioning. In May 1981 the mistake was discovered and steps were taken to mitigate its effects but W had booked a holiday in January 1982 depending on an amended brochure. At that time he

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read the brochure that tour operators were aware that the statement was false. The House of Lords unanimously upheld the prosecutor’s appeal against the divisional court which had quashed the original conviction of the tour operators. The brochure was inaccurate and the respondent knew that it was inaccurate and therefore W was misled. The ingredient for an offence under section 14 of the Act were thus compounded in view of the House of Lords to hold otherwise would be to emasculate section 14 and to placed a premium on carelessness by the respondent. It was pointed out that although the tour operators never intended to make a false statement to W an offence has been committed under section 14.The tour operator had not attempted to put forward a defence under section 24 (section 19 of the Kenya Act) which might otherwise would have been available that the commission of the offence was due to a mistake and all reasonable precautions and due diligence had been exercised to prevent the commission of the offence.Lord Branden in a concurring speech added that he would have regarded the false statement about air conditioning contained in the respondent brochure as having been a continuing false statement, that is as false statement which continue to be made so long as such brochure was in circulation without effective correction. Form this decision it appears that the House of Lords in this case held that the offence created under section 14 (section 6 of the Kenya Act) is in fact one of semi-strict liability.

Recklessly

Another distinction between this offence and section 3 offences is that sections 6 also requires that the person makes the false statement recklessly. A reckless statement is defined by section 6 (2) (b) as a statement made regardless of the whether it is true or false and whether or not the person making it had reason for believing that it might be false.

Lord Parker CJ in Sunair Holidays Ltd v Dodd stated obiter that the Act imported the common law definition of reckless. In this case travel agents in their brochure described accommodation at a hotel as twin-bedded rooms with private bath, shower, WC, and terrace.. They had a contract with the hotel to provide such accommodation. Two persons booked a holiday with them on this basis but on arrival were given rooms without terraces. It was held by the divisional court that no offence had been committed. At the time the statement was made the accommodation existed and the statement was perfectly true. Nothing which happen afterwards would alter the accuracy of the description when it was made. Further the definition of reckless does not include negligence.

However a different view was taken by the divisional court in MFI Warehouses v Nattrass. Here a mail order company advertised goods for 14 days free approval and carriage free. These offers were intended to cover

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only some of the goods in the advertisement but appeared to relate to all of them. The company’s conviction for recklessly making the false statement as to the provision of facilities was upheld on appeal. The court considered that the chairman of the company had given insufficient care to his perusal of the advertisement so that the company had been reckless as to its content.While this case to an extent throws doubt on the dictum of Lord Parker and appears to give a wide meaning to the words recklessly and the point of Sunair Holidays Ltd still stands. No offence is committed merely because the trader fails to provide services with the description provided that the services or accommodation existed when the statement was made and provided that he then had intended on providing them.

When a statement is made

A question to be answered in Wings Ltd v Ellis was what was meant by the word ”make” statement. In section14 (1) [Section 6 (1) of the Kenya Act] the question is particularly6 important in relation to brochures issued by tour operators and others where many may be published and read by different members of the public or a period of many months. Other statements in the brochure made when the brochure is published or read by the members of the public .In R v Thomson Holidays Ltd the court of appeal decided that a statement is made only when communicated to someone. For example by reading although approving the decision in Thomson as correct, the House of Lords has not accepted the court of appeal’s reasoning. A statement may be made although not communicated to anyone.

Future Services

A decision showing that promises about provision of services in future are not caught by section 6. In Beckett v Cohen a builder agreed to build for the customer a garage like his neighbours within ten days and did not do so. The divisional court upheld the magistrate’s court dismissal of information. This was a statement made in regard to the future. The Act could not be used to make a breach of contract into criminal offence.

As the law now stands careful analysis is required of the relevant statement to a ascertain whether their promises in the nature of forecaster or whether the statement although relating to services to be performed in future also contained a statement of existing facts.

This interpretation of the section erodes very substantially the protection afforded to consumers. Even so if the accommodation is advertised which at the time of the publication of the holiday brochure does not exist then the offence can be committed.

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In R v Clarkson Holidays Ltd a brochure stated that Clarkson hotels were were chosen for their cleanliness, good food, and efficiency of service ad included a picture of a large modern hotel with swimming pool. This turned out to be an artist’s impression. The hotel which was still in the course of construction was not finished by the time the holiday makers arrived and was never intended to be ready by then. According an offence had been committed under the Act. Similarly in British Airways Board v Taylor a prospective passenger was booked by BOAC on a flight to Bermuda and a letter confirming the reservation had been received. BOAC in common with many other airlines operated an overbooking policy usually on correct assumption that some passengers will fail to arrive at the4 airport but not seat was available for the prospective passenger when he arrived at the airport. The House of Lords held that the statement in the letter was false within section 16 [section 6 (2) of the Kenya Act] and in particular it was stated that the facts illustrated the assumption of existing facts and a promise of future conduct may both be found in one and the same statement. The factual statement here was that booking would be confirmed when the booking policy made it impossible to do this. However4, the appeal was allowed in the airline’s favour on the technical ground that the British Airways were not criminally liable for the act of the former BOAC.

Facilities and prices

Section 4 of the Trade Descriptions Act was concerned only with the price of the goods. Under section 4 false or misleading indication as to price has been made an offence. However, there is no provision under the Act in relation to false or misleading indications as to price at which services are offered. In the UK this gap has been filled by section 200 of the Consumer Protection Act 1987 which covers goods, services, accommodation or facilities. However, before that attempts were made to increase the price of services into section 14 [section 6 (2) of the Kenya Act] by a broad interpretation of the word facilities in section 6. A number of decisions of the divisional court show that the provision is to be construed strictly. In Newell v Hicks, it was pointed out that although the word facility is used widely in commercial circles to describe almost anything available commercially. When the word appears in a criminal stature it was wrong to stretch its meaning in that way.

In Newell, motor dealers advertised a video cassette recorder absolutely free with every registration of Renault car ordered within a specified period. The trade-in allowance of old vehicles however was reduced where customers wished to take up the offer. The divisional court held that the statement fell outside section 14 [section 6 of Kenya] because:

(i) the offer of a free recorder was a statement about the supply of goods; and

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(ii) section 14 (1) did not cover a false statement about the price at which services or facilities were provided.Yet this case is not authority for the proposition that section 6 has no application merely because the suppliers statement relates to an ancilliary to goods. Thus in Bambury v Hounslow it has been held to cover a three-month guarantee of a second-hand car; also a statement in Kinchin v Aston Park Scooters that the purchaser of a moped would receive a year’s insurance.

Defences

Section 19 of the Act [equivalent to section 24 of the UK Act]:i) a mistake: applies to the person chargedii) reliance on information supplied by another person: useful for a retailer.iii) act or default of another person

Tesco Supermarket Ltd v NatrassThere was a chain of supermarkets in the UK. In one branch there was a notice that prices had been reduced placed outside the supermarket. But the prices paid for items were higher than those advertised. The supermarket was charged of false price indication. The offence was committed by the branch manager but not the director. In criminal liability of corporations the company could be held liable. The branch manager is not the company and the company could not held liable. The defendant must have exercised the necessary care and due diligence.

iv) Accident: defendant claim that offence occurred due to accidentv) Some other cause beyond. Unavoidable circumstances his control.

The liability for offenses under section 3 is strict where the offence under section under section 6 is committed if the trader knows the statement to be false and makes it recklessly.

However, certain defences are available. Section 19 (1) applies to both types of offenses and section 19 (3) assist only in cases of prosecution under section 3 (b). Section 20 is confined to innocent publication of advertisements.

The general defense

The defense provided by section 19 (1) may be used by the defendant when charged with the offense under section 6 in relation to services or under section 3 (a) for supplying goods with false trade description. However, the court of appeal decided in R v Southwood that it is not available in respect of charge under section 3 (a) where the defendant applied the description himself. This case is concerned with false odometer. It was pointed out by

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Lord Lane CJ: “By his initial actions in falsifying the instrument he has not taken any precautions let alone any reasonable precautions.”

Section 19 (1) provides as follows: Any proceedings for an offence under this Act save as here in the Act provided be a defense for a person charged to prove:(a)that the commission of the offence was due to a mistake or reliance to information supplied to him or to the act or default of another person or to an accident or other cause beyond his control. It may be split into five defences. The defendant must prove that the commission of the offence was due to any one of the following causes:i) a mistakeAs far as mistake is concerned this is available only where the mistake is made by the defendant himself. It cannot be used where someone else’s mistake is involved; for example an employer pleading the mistake of an employee. See Birkenhead & District Cooperative Society v Roberts.

ii) Reliance on information supplied to himThis defence can be taken most of the time by the retailer who generally relies on the information supplied to him by the manufacturers.

Assignment1. Discuss how the Standards Act protects the consumer. Also examine the

Kenya Bureau of Standards in the protection of the consumer; or

2. Discuss the provisions of the Weights and Measures Act relating to the protection of the consumer. Also examine the role the Weights and Measures Act department.

Due the week before exams.

Consumer Protection-Lecture 7

2. Reliance on information supplied to him

In case of odometer readings the seller may rely on the information supplied to him by the previous owner.

3. Act or default of another personThe defence most frequently relied upon is that the offence was due to the act or default of another person, for example, an odometer was run back by the previous owner. When the employer is charged he may rely on the default of his employee. When the Act first came into force it was thought that the defence could only be used where the employee was in a junior position but it appears to have been quickly settled that even where the person was a branch manager the defense is still available. However, when

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the employer is a company it is necessary to distinguish between those employees or officers who are the directing mind and will of the company where their defaults are the defaults of the company and those employees who are thus not identified with the company then the company can claim their defaults as those of another person. In Tesco Supermarkets Ltd v Nattrass , the House of Lords discussed the difficulties in cases where a corporation is charged for criminal offences. In this case the supermarket at one of their branches outside the supermarket advertised for a particular type of soap powder at reduced price. However, the supermarket had ran out of the reduced packs and when a customer bought a pack he was charged the full price for the pack.

The House of Lords held that where a person charged is a limited liability company the only person who can be identified with the controlling mind and will of the company are the board of directors, the managing director and any other superior officer to whom the board has delegated full discretion to act independently from the board. Thus though the general manager may be the company’s directing mind and will but the supermarket branch manager was not accordingly since the offence was caused by the failure on the part of the branch manager to ensure that sufficient packs at reduced price were available Tesco were able to rely on his default. In other words the House of Lords held that a branch manager of a large company was another person it being not possible to identify him as the directing mind and will of the company. Only senior members of the company could be so regarded. It has been argued that this decision has undermined the purpose of the Act. However in MacGuirre v Sitting Bourne Cooperative Society it was pointed out that the defence was not available unless all reasonable inquries had been made to try to establish that actual person responsible for the offence and that it was not sufficient simply to produce a list of all the staff who might have been responsible. Further, to rely on this defence section 19(2) requires the defendant at least seven clear days before the hearing to serve on the prosecutor a written notice giving such information identifying the person.

4. An accidentThe defendant may rely o the defense of accident when he can prove that the cause of the offence was an accident.

5. Some cause beyond his controlIf the crime has been committed because of some cause or circumstances beyond the control of the defendant he can rely on this defence.

These differences are available under section 19(1 (a). But he still has to prove under section 19 (1) (b) that he took all the precautions and exercised all due diligence.

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Due diligence defence

It is not enough for the defendant to prove one of the five defences in section 19(1) (a). He must also prove that he falls within what is now popularly known as due diligence defence, namely that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or in any other person under his control. The case law would seem to sup-port the preposition that to avail himself of this part of the defence the accused must show that he had set up a system of designed to prevent the errors and that the system was adequately operated. These factors have generally been considered by the courts in relation to the default defence particularly with regard to its application in the areas of vicarious liability, odometers and sampling.

Vicarious liability

When an employer is charged with an offence because of the conduct of an employee and endeavours to rid himself of this vicarious liability by showing that the offence was due to the act or default of the employee broadly the employer will be acquitted if he can show that he is personally blameless. Obviously when this defense is used, somebody is to blame. The question is whether the offence had occurred in spite of the precautions and diligence of the employer. In Tesco Supermarkets the House of Lords rejected the argument that the employer has to show that he and all other persons to whom he has delegated responsibility are blameless. The company was held to have satisfied the requirements of reasonable precautions and due diligence under section 19 (1) (b) by having a chain of command with a careful system of control and supervision even though one of the cog in this machine , the branch manager of the supermarket, had failed to carry out his responsibilities properly.

Odometres

The second area where due diligence defence is of special significance relates to false odometer readings. Sometimes a car dealer honestly supplies a vehicle with an odometer which unknown to him had been tempered with by an earlier owner. Assuming that he can prove that the offence was due to reliance on information supplied or the default of another person, the question arises whether he can also prove that he took precautions and was diligent. This normally involves checking which the person from whom he bought the vehicle and if he has the registration document with the previous owners to verify the mileage. However, in Neish v Gore the divisional court said that it was impossible to lay down as a general rule that a dealer selling a second-hand car must have the log book and check with the previous

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owners. In that case the defence was available to a dealer who bought from somebody with whom he had been dong business for years and resold the car before receiving the log book from the seller.

Sampling

Where the suppliers dealing with large quantities of goods and relying on sampling to show that they had been taking reasonable precautions and with due diligence. In Rotherham Metropolitan BC v Raysun(UK) Ltd, the defendants , large-scale importers of Far East products imported once a year 100,000 packets of children’s wax crayons from Hong Kong. Their agents in Hong Kong had samples analysed and had to send back only adverse reports but none of such reports were received. The defendants tested in England a single packet. They sold crayons as poisonless. The black crayons contained excessive amounts of toxic materials. The divisional court rejected their defense under section 24 (1) [section 19(1) of Kenyan Act]. They had not checked that the Hong Kong analysis were in fact taking place and their sample in England was very moderate, thus they have not taken the reasonable precautions and there was no diligency on their part.

Suppliers defence

In Naish v Gore the dealer also relied on the defence in section24 (3)[section 19 (3) of the Kenyan Act] this is confined to the offence of supplying goods with a false trade description under section 3 (b). the “defences “ in any proceedings for an offence under this Act for supplying or failing to supply goods to which a false trade description is applied it shall be a defence for the person charged to prove that he did not know and could not with reasonable diligence have a ascertained that the goods did not conform to the description or that the description had been applied to the goods.

The comment made earlier with regard to due diligence in section 19 (1) appear relevant here as the use of the adjective “reasonable” rather than “due” is not intended to affect or reduce the standard of diligence. For example in Simmons v Ravenhill another odometer case the defence failed because in view of low mileage of 19,000 km the dealer should have made inquiries with the previous owner. The divisional court stated however generally it would be unreasonable to expect a dealer to check with all the previous owners.

By-pass provision

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Although the so-called by-pass provision in section 18 of the Kenyan Act is not a defence, it is appropriate to deal with it at this point in view of its close interaction with the defence in section 19 (1). Section 18 states “where the commission by any person of an offence under this Act is due to an act or default of another person that other person shall be guilty of the offence and a person may be charged and convicted of the offence by virtue of this section whether or not proceedings are taken against the first person.

Thus this section enables a prosecution to be brought against a person whose act of default has caused another person to commit an offence even if the other person has not been prosecuted. Thus where A commits an offence but the real culprit is B, B may be prosecuted for the offence committed by A , it is irrelevant whether or not proceedings have been taken against A. The corollary is that if no offence is committed by A, B cannot be prosecuted under this section. In Coupe v Guyett it was suggested that section 23 (section 18)and section 24 (section 19) could be fitted together where the first person referred to in section 18 has a defence or merit and without reliance on section 19 it is not possible to operate section 19 so as to render guilty the person whose act or default gave rise to the matter in the compliant. It was argued in that case that section 18 comes into play only where the first person escape prosecution by taking advantage of the due diligence defence under section 19.

Innocent publication of advertisements

Section I (b) of the TDA upholds a special defence in case of advertisements. In a proceedings for an offence relating to the publication of advertisement the defendant is free from liability if he can prove that

a) the advertisement was received and published in the course of a business involving such publication

b) he did not know and had no reason to know that the publication would amount to an offence under the Act

The defence protects not only the publishers themselves, for example of newspapers and magazines but also those who arrange for the publication of advertisements.

Consumer protection in relation to services under the private law

The role of private law in protecting the consumer in service sector

Services encompass a wide variety of activities. They are as diverse as laundry, dry cleaning, furniture removal, home improvements, education services, car maintenance and repairing, banking and insurance services and

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professional services. The service sector of the economy has expanded enormously during the 20th century and the range of services offered to the public is extremely varied and it is sometimes said that the modern economy has become a service economy and perhaps more than half of output is generated by the service sector. The service sector is covered by the law of contract and the law of tort.

Terms implied in a service contract by the court where there is a contract in place certain terms may be implied or inferred by the judges to reinforce the language of the parties and realize their manifest intention. In Sameuls v Davies the plaintiff was a dentist who agreed with the defendant to make a set of false teeth for the defendant’s wife. The teeth were made and delivered but the defendant refused to pay for them on the ground that they were so unsatisfactory that his wife could not use them. There was a controversy as to whether it was a contract for the sale of goods or for work and materials.

The controversy was as to whether the contract was for the sale of goods or for supply of work and materials but the court of appeal held that in the circumstances of the case the question was irrelevant if it was a contract for the supply of materials and goods the provision of the Sales of Goods Act applies and if it is a contract of provision of services then they would import into the contract a term that the teeth would be reasonably fit for the purposes. The courts have also imported into contractual transactions for a lease of house that it shall be reasonably fit for habitation and the date fixed for the beginning of tenancy in Smith v Marrable it was held that if the house was invested with bugs or if the drainage was defective or a formal occupant suffering from TB the tenant would be entitled to repudiate the contract and recover damages.

Consumer Protection-Lecture 8 18th

June 05

Private Law measures to protect consumer in service sector

In Reed v Dean the Plaintiff hired the defendants motor launch for a holiday on a river two hours after he had set out the launch caught fire, the fire fighter was out of order and the Plaintiff suffered personal injuries and lost all his belongings. The defendant was held liable for his failure to make the launch as fit for purposes of hiring as reasonable care would make it.

Sometimes the court may impose on parties a term which is reasonable in the circumstances. In Liverpool City Council v Irwin the defendants were tenants on the 9th floor of a 15 floor tower block owned by the Plaintiffs.

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There was no formal tenancy agreement. There was a list of tenants obligations prepared by the landlord and signed by the tenants. There was no express undertaking of any kind by the landlord. Owing to vandalism the amenities of the block were seriously impaired so that the lifts were regularly out of action. The stairs were unlit and the rubbish shutes did not work. The defendant withheld payment of rent alleging that the plaintiffs were in breach of implied term of conflict of tenancy. But the House of Lords rejected this argument. It was necessary to consider what obligations the nature of contract itself implicitly requires and since it was not possible to live in such buildings without access to the stairs and the provisions of a lift service, it was necessary to imply some terms as to these matters. On the other hand it was not proper to imply an absolute obligation on the landlord to maintain these services.

Absolute obligation on the landlord to maintain these services, it was sufficient to imply an obligation on the landlord to take reasonable care to maintain common paths in a state of reasonable repairs. However in this particular case it was not shown that the landlords were in breach of that implied term. Similarly in McIntyre v Gallagher G was a plumber who had been employed to carry out plumbing work in a row of tenements. This included the sealing off of some pipes. One of the pipes was not properly sealed which after sometimes leaked causing damage to the property on the lower floors for which the landlord was liable. Evidence proved that the proper and workmanlike method of sealing the pipe was to solder it. In this case G or one of his workmen had only hammered the end of the lead pipe together which eventually leaked. He was thus held liable for failing to carry out the job with requisite level of his skill.

In Brett v Williamson a building contract was arranged on either a fixed price basis or as in this case on time and lime basis. The problem resulting from the unsatisfactory workmanship are particularly difficult to resolve in this case the plaintiff had undertaken to lay terrazzo tiles and having done so in a manner which the defendant regarded as unsatisfactory was obliged to bring an action for payment. It was argued by the Plaintiff that since such tile laying was a specialist job but had been entrusted by the defendant to him who did not claim to be a specialist, he could not complain that the work was not up to the standard of a specialist. It was held that the standard of care required was that of the type of practitioner which the client believed he was dealing with but in Dickson v The Hygienic Institute it was said that a contractor need attain only the skill he professes.

In Mackintosh v Nelson Brett v Williamson case was applied to slightly different circumstances where P claimed damages for loss sustained when seriously defective work was carried out at her house. The defendant had been an art teacher for several years before going into business on his own account as an industrial cleaning contractor who also undertook window

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cleaning, external paint work and large scale gardening. The plaintiff had admired a sun lounge which the defendant had built at his own home and inquired whether he could build similar work at her house. It was clear from the evidence that the defendant held himself out as capable both of drawing the necessary plans and carrying out the building work in a workman like manner. The defendant argued that in the circumstances he should be held to the standard of an amateur builder. It was held that where one who was not a tradesman and contracts to do work for another, he must be held to have professed the requisite skill to do the job which he had undertaken.

A different aspect of the problem of the standard of the work arises where the issue is not the competence which the tradesman professes but the advice or warnings which he gives to his customers before carrying out the job. In Terret v Murphy the owner of a furniture shop engaged the plaintiff to paint an extension to his shop. He was eager to have the work completed and when the painter reported that the supplies of the primer that he wished to use would not be available for several days, he persuaded the painter to carry on with the job. This was done despite warnings from the painter that the absence of the primer could result in problems later on. Problems did arise and the owner of the shop withheld payment. Finding in favour of the Plaintiff it was pointed out by the court that if a house owner merely asks a job to be done then the contractor would be liable if he did not draw attention to a particular risk but despite an earlier warning from the painter that the work should be executed in a particular manner and the house owner instructs to proceed in a different manner, in that case the house owner is not entitled to say that the warning was not loud enough or that he did not appreciate the full measure of the risk.

Consumer services may be provided pursuant to a contract or independently of any such contract. For example no contract exists between a hospital which is providing charitable medical services and the patient. However, in such cases also the provider of the services nonetheless owes a duty to take reasonable care of the consumer. This means that a person is responsible for exercising his skill in trade or profession and the lack of such skill will be regarded as a breach of implied term under the contract if a contract is in place or breach of duty of care to take reasonable care under the law of Tort. Thus in professional services the professional person must do his job with reasonable skill and care.

In Hunter v Hanley it was said by Lord Clyde that “where the conduct of a doctor or indeed of any professional man is concerned, the circumstances are not so precise and clear-cut as in the normal case. In the realm of diagnosis and treatment there is ample scope of genuine difference of opinion and one man clearly is not negligent merely because his conclusions differ from that of the other professional man nor because he has displayed less skill or knowledge than others would have shown. The true test of

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establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no other doctor of ordinary skill would be guilty of if acting with ordinary care.

This has been interpreted to mean that if any other professional can be found to agree with actions of the doctor or other professional feel there is no negligence under the law of tort. However a close reading of this case suggests that this is going too far and the test propounded by McNair J. in Bolam v Friern Hospital Management Committee correctly provided the test when he said of the standard required of a doctor that “it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” The test is of ordinary competent men in that profession.

This view certainly seems to be consistent with other professional negligence cases. A professional person does not give an absolute undertaking to achieve a particular result that would be inappropriate in most cases of professional services a doctor in the nature of things cannot undertake to cure his patients and a lawyer can give no guarantee to a client that he will win his case. In Eyre v Measday Mr and Mrs Eyre decided that they did not wish to have any more children and consulted the defendant a gynaecologist to discuss the sterilisation of Mrs Eyre. The Defendant explained the nature of the operation and emphasised that it was irreversible and must be regarded as a permanent procedure. He did not explain that there was a small risk of failure. The Eyres believed that the result of the operation would be to render Mrs Eyre incapable of having further children. However, after the operation Mrs Eyre did become pregnant and had another child. She sued the gynaecologist alleging amongst other things that there was an implied term that she would be rendered sterile by the operation. It was held that the Defendant had undertaken to carry out a particular type of operation rather than to render Mrs Eyre completely sterile and that his statement that the operation was irreversible was not an express guarantee that the operation was bound to achieve its objectives.

A case involving professional services which does show that a standard higher than that of due skill and care can be expected in certain circumstances is Green & Co. (Contractors) Ltd v Bayhnam v Meikle & Partners the Plaintiffs who were building contractors had agreed to design and build a warehouse for a customer. They employed the defendants who were Structural Engineers to design the warehouse and advice them that it was essential that it should be capable of permitting materials to be moved around on fork lift trucks. Shortly after the warehouse was handed over to the customer the floor began to crack as a result of vibrations caused by the forklift trucks. The Plaintiffs accepted that they were liable to the customers and brought this action to recover by way of indemnity from the Structural Engineers the cost of repairs to the building. It was held that on the facts as proved in this case there was a term to be implied into the contract that the

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engineers who designed the building that would be fit for the purpose which the plaintiff had stipulated.

TIME FOR PERFORMANCE:

A major source of complaints from consumers is failure of contractor to complete a job in good time or sometimes to complete it at all. There are those cases where the days of commencement or completion of the work has been agreed between the parties and subsequently ignored by the contractor. The other is where no time has been agreed for the completion of the work but the consumer thinks that the contractor has taken unreasonably long time to complete the work. The contract may specify the time by which the service is to be completed. This is subject to the provision that the contractor will not be liable for failure to comply with the time limit if his failure to do so is the fault of the client. In T & R Duncanson v The Scottish County Investment Co. where a plasterer was unable to complete his agreed task because the client had failed to ensure that the other tradesmen completion of whose work was necessary to allow him to start had kept to the schedules. If there is no complication such as that as in this case, the question is whether the time is of essence. There is no problem where the contract explicitly says that the time is of the essence. It should not be necessary to use the particular formula that time is to be of the essence. Any verse that clearly indicates that this is the case should suffice.

The problem is more difficult where the contract does not have such a provision, time will be assumed to be of the essence. In a commercial contract it is probably not the case that the consumer contracts will fall into this category. However if there is no express term about time, a consumer is entitled to expect that a job will be completed within a reasonable time. In Davidson v Guardian Royal Exchange Assurance a case involving delay in repairing a car where it was held that repairs must be completed within a reasonable time. Similarly in Charnock v Liverpool Corporation C’s car had been damaged in an accident and he took it to the Defendants for repair. An estimate for the work required was agreed but the job was not completed for eight weeks since he used the repairs for the cost of hiring a car for 3 weeks, the period in which in his opinion the time taken for the repair exceeded what was reasonable. It was held that there was an implied term that the repairers could carry out the repairs with reasonable expedition and on the facts, eight weeks was not a reasonable time.

In Charles Rickards Ltd v Oppenheim O had placed an order in August 1947 with the defendants for the construction of a body on the Chassis of his car. The job was to be completed within 6 months or at the most 7 months. The job was not completed within 7 months and the plaintiff kept pressing for delivery. Eventually he wrote to the body builders on June 28th 1948 that he shall be unable to accept delivery after July 25th. When the car was not

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finished by the end of July O cancelled his order and when the car was delivered to him in October he refused to accept it. It was held that the original stipulation making time of essence of the contract was waived but he was entitled to give reasonable notice once again making time of the essence. On the facts of this case it was decided that the notice of 28th June was reasonable and O was not obliged to take delivery.

GENERAL BACKGROUNDGOODSSERVICEDEFENCESSERVICESPRODUCT LIABILITY

ASSIGNMENTS ON Weights and Measures and Standards

Product LiabilityProduct liability is basically a common law remedy and can be on contract-based remedies and tort-basis remedies. In contract-based remedies only parties to the contract can sue.

Wilson v Cockrell & Co. illustrate the merchantable quality; the goods were defective. When she put the material into the fireplace they exploded and she

Aylesbury Dairy Co. In this case a person ordered some milk from a milk supplier and that milk contained typhoid germs. The wife consumed the milk and got typhoid and late died. Husband sued for breach of implied conditions under the Sales of Goods (fit for he purpose) and he can either reject the goods as well he can sue for damages.

In Australian Knitting Co v Grant. In that case a person bought some underwear from a retail. Some underwears were shown to him and he bought one piece which he wore without washing it and he got a skin disease, dermatitis. And sued under merchantable quality under the Sale of Goods Act.

Manufacturer of productReach the ultimate consumerIn the form which left them- intermediate examination—reasonable care in preparation and putting up the product

Dalkon Shield

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Product liability

The majority of consumer complaints concerning defective goods or by purchasers whose expectations are disappointed liability for damage for a defective product is an amalgam of liability in contract and the tort of negligence. In earlier times contract tended to predominate in judicial pattern which produced what came to be known as the privity of contract fallacy. The Sale of Goods Act provided a statutory protection by implying terms into contract for the sale of goods the breach of which gives rise to certain remedies conditions implied into contract of sale that the goods should be merchantable and if the purpose for which the goods were bought had been made known to the supplier the goods must be fit for the purpose.

The liability under the Sales of Goods Act is strict. It is irrelevant that the retailer is in no way to blame for the defect and may lack opportunity to discover the defect nor is it limited to protection against injury to person or property. That means in appropriate circumstances there can be a liability for economic loss also.

Merchantable quality is defined as the goods must be fit for the purpose or for purposes for which they are normally bought as it is reasonable to expect having regard to the description, the price and or the surrounding circumstances. So for example if a person buys an electric blanket he can sue the retailer if it is unmerchantable because its faulty wired and the person suffers electric shock and also if it is useless and fails to heat the bed at all.

Refer to the following cases:Frust v Aylesbury Dairy Co.Godley v Perry. In this case a child bought a catapult from a retailer by sample. It was defective and he raptured his eyes when using the catapult. He sued the retailer on the grounds that the catapult sold to him was not of merchantable quality. It was not fit for the purpose of a toy and the retailor was liable for the condition of the goods. The goods were bought according to sample shown.

Australian Knitting Co v Grant

In Daniels & Daniels v R. White & Sons Ltd & Tarbard, Mr. Daniels purchased a bottle of lemonade from Mrs. Tarbard a retailer. It had been manufacture by R. White & Sons and contained a quantity of carbolic acid. Mr. and Mrs Daniel both became ill as a result of drinking it and as between the buyers Mr. Daniels and the seller and Mrs Tarbard the condition implied by the Sale of Goods Act were capable of applying and it was found that while there was no implied condition of fitness since the buyer had not relied on the seller’s

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skill or judgment. However, the implied condition of merchantable quality applied and had been broken. Mr. Daniels was able to recover from Mrs Tarbard damages for personal injuries without proving that she had been negligent (i.e. strict liability under the Sale of Goods Act). Mrs Daniel could not sue Mrs Tarbard but could successfully sue the manufacturers for the tort of negligence, however on the fact she failed to prove breach of necessary duty of care. Mr. Daniels could also have sued he manufacturers successfully in tort had negligence been proved.

The limitation on effectiveness of contract as a means of general consumer protection against defective goods arise from the rules of] privity of contract. A person who is not a party to a contract cannot benefit from that contract. So for example, if the mother of the person who had suffered electric shock because of the faulty wiring of an electric blanket cannot sue the retailer in contract even if suffers serious injury. Also the purpose who has no claim in contract against the wholesaler or the manufacturer because in that situation vertical privity denies him the benefit of the conditions of merchantable quality or fitness for a purpose.

Sometimes the courts have devised certain measures to mitigate the consequences of the rules of privity of contract. The courts have devised what is known as the doctrine of agency. In Lockett v Charles a husband and wife took a meal together in a restaurant. The husband ordered the food and paid for the bill. The wife contracted food poisoning from contaminated food. It was held that the husband acted as his wife’s agent and contracted on her behalf thus she could sue on contract for the injuries suffered because of contaminated food. However, the circumstances which allows an inference of agency will be strictly limited. For example, a mother who buys goods for her child cannot be said to act as child’s agent. She may be able to recover any loss to her caused by the injury to the child. So if a small child is scalded by a faulty hot water bottle purchased by mothers, the mother may sue on her contract with the retailer but the child cannot. [This was the situation in Priest v Last. In that case the mother had bought a hot water bottle but it was defective and because of that the child was defected.] She will recover the cost to her of caring for her injured child but the child will be unable to recover in contract for the pain and suffering. Any action by the child must be in the tort of negligence. This means that normally tort-based remedies will be pursued in those circumstances where the consumer is debarred from using contractual remedies in cases where the consumer having suffered damage to person or property has a choice of suing in either contract of tort. He would normally have chosen to sue in contract because the implied terms impose a strict liability.]In suing for damages has a choice of suing in either contract or tort. He would normally have chosen to sue in contract because the liability is strict.

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Liability and negligence

The development of liability in negligence for defective goods was for the first time established in the case of Donoghue v Stevenson. Prior to this case the ambit of liability was extremely narrow due to the operation of what has become known as contract fallacy. According to this fallacy there was no duty of care owed by the manufacturer to any person who was not a party to a contract with him and who was injured or otherwise suffered loss as a result of a defect in manufacturing of goods. This contract fallacy was exploded by the decision of the House of Lords in Donoghue v Stevenson where Lord Atkin laid down the following statement of principle:

“A manufacturer of products which he says in such a form as to show that he intends them to reach the consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumers life or property owes a duty to the consumer to take that reasonable care.”

Although this statement of principle constituted a major step forward in the development of law it is the subject of a number of restrictions, Donoghue v Stevenson has since been extended in its range of application to goods and the principle of negligence derived from that judgment remains of utmost importance even now.

Range of defendants

Lord Atkin imposed liability on manufacturers. The latter case law extended liability inter alia assemblers, repairers, suppliers of drinking water, supplier of goods whether retailers or wholesalers, builders and others. This category of persons to whom the principle has been extended are characterized by the fact that they created he danger or were responsible for the creation of the danger. The difficulty then arises is whether the principle should also apply to the vendor of the defective goods. Here the situation is different because the vendor has not created the danger. He has simply sold the product to the consumer. Of course such a vender could be liable in contract particularly under the Sale of Goods Act where the subject matter of the contract between he parties was goods but the question is: can the supplier also be liable in tort? It seems that he may be liable in tort where he fails to inspect the goods and he is under a duty to inspect the goods.

In Andrews v Hopkinson it was held that a secondhand car dealer would be expected to check the steering on used cars. Similarly in Watson v Buckley, Osborne, Garrett & Co. wholesalers who failed to test for themselves a hair dye of dubious province were held to be negligent. [they were selling a hair

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dye which was harmful to customers; there was a duty for them to check] So the implication imposed upon supplier does not arise in every case and even where it does arise it can be discharged by selling the goods as seen and with all its faults and without warranty.

ProductThe second qualification in Lord Atkin’s judgment is that it only applies to products. However the principle is not confined to items such as food and drink but it applies to any product in any normal domestic use including underwear, hair dye, motor car, houses and installation in houses and even tombstones, nor is it confined to consumers. In the strict sense it applies to the ultimate user of he product as well as to persons within the close proximity of the product. Thus a child scolded by the faulty hot water bottle purchased by her mother can sue in negligence but less obvious person at risk may also be within the scope of the manufacturer’s duty. In Barnett v H.J. Parker & Co, the proprietor of a sweet shop was injured by a piece of metal protruding from a sweet. He was able to recover damages from the sweet manufacturer. Similarly in Stennet v Hancock a by-stander was held to be within the rule in Donoghue v Stevenson.

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consumer protection law

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