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A case study on rights in crivil and criminal law

Title: Christina and her boyfriend Nicholas visited perfect motors as they had seen an advert in their local paper. They were interested in a second hand Renault Escape offered for 4 thousand pounds. The salesman told them that the original engine had recently been replaced with a reconditioned engine and it was "good for many miles" and "capable of crushing 100 mph" and had "only one owner" .Nicholas bought the vehicle, paying for it by credit card. Christian then visited Perfect Motors shop outlet and bought some dry cell batteries. The batteries were manufactured by Best Buy Ltd. she put them in her gold Rolex watch. Later that day Christina and Nicholas decided to take the car for a drive. They set out from London with the intension of visiting friends in Exeter. Later that day they took Christina's young son Mark with them. Fifty miles up the motorway it became apparent that the engine was malfunctioning, so Nicholas left the motorway at the nearest exit and took the car to a garage in reading. The garage told Nicholas that the engine was suffering from a series of minor defects and it would be cheaper to replace it rather than repair it. The proprietor commented that this was often a problem with reconditioned engines. However, he said that it will be safe for them to take the car back to London, but he advised them to keep off the motorway and not drive faster than 50 mph. the garage charged Nicholas 200 hundred pounds for checking the car. On the journey back to London the watch batteries exploded, damaging the Rolex watch and injuring Mark seriously. They took him to the hospital, where they were told that the explosion had so damaged his left eye that his sight was impaired for life. Christina and Nicholas returned to the garage and Nicholas demanded his money back and reimbursement of the 200 hundred pounds he aid to the garage in reading. Perfect Motors were only prepared to "tune the engine" . They offered to do this free of charge. When Christina told them about defective batteries they said, "that is not our problem, you will have to take it up with the manufacturers" . Christina was not insured for either personal injury or damage to property and she approached Best Buy Ltd. They claimed that they had a good system of quality control and that this was the first time anything like that had ever happened. They further claimed that no one in the trade could reasonably have expected that dry cell batteries of the type in question would explode. All these events were so depressing that Nicholas decided to give Christina a special birthday treat. He obtained the services of Ben, on the recommendation of a work colleague, to repaint the outside of her house. On meeting Ben, Nicholas specified a certain type of paint, which was made by only one manufacturer and was guaranteed to last for years. Last for years. Ben duly used the paint but after six weeks it had started to flake off. Ben's explanation for this was that the paint was not suitable foe external surfaces. However, it was later discovered that Ben had not followed the preparation instructions correctly. Nicolas had paid Ben 500 hundred pounds for the work and paint cost 175 hundred pounds. In Addition to repainting Christina's house, Nicolas had also decided to get Mark a pedigree dog to cheer him up. He read and advertisement in the local newspaper. Which said "ignore the recent press" we have a little delightful, seven week old Rottweiler puppies for sale. These particular dogs have a friendly temperament and will make excellent watchdogs. Price 200 hundred pounds each or 350 hundred pounds for two. Nicolas bought two dogs for the latter price, using his Barclay card to pay for them. Two months later, he discovered the dogs are not pedigree but rottweiler/german shepherd crossbreed and their father had been put down after biting someone. Furthermore, the dogs are so aggressive that Mark is scared of them. Advice Christina and Nicholas of any possible legal rights and/or liabilities in civil and criminal law, applying pertinent case law and legislation.

In the above there are several areas of law that need to be considered before being able to advise Christina and Nicholas of any rights they might have in civil or criminal law. The obvious areas that require consideration include the Sale of Goods Act 1979, the Sale and Supply of Goods Act 1994 and the Supply of Goods and Services Act 1982. As well as these pieces of legislation there may be a need to look at the Unfair Contract Terms Act 1977. In advising the parties there needs to be an examination of the various claims in tort or contract that might be brought as well as considering whether any criminal charges might be appropriate.

The first part to consider us what action if any can the parties bring against the garage where they bought their car. The starting point in this is to look at the things that the seller has said about the car to decide whether any of the things he said can amount to a warranty as to the condition of the car. The comments made by the salesman in this instance might amount to a warranty as he has stated that the car should be good for many miles and is capable of cruising at 100mph. it has been stated above that the car broke down after only travelling 50 miles and that it had a series on minor problems. The garage where Nicholas took the car to be repaired has also told him not to exceed 50mph on the return journey.

From the information given it would seem obvious that the car is of an unsatisfactory quality and not fit for the purpose it was bought for. Under the Sale of Goods Act 1979 section 14 it states that the goods sold shall be of a satisfactory quality and fit for a particular purpose[1]. As the car has several minor defects and cannot exceed 50mph then it could be easily argued that it is not of an acceptable quality. In such cases where the goods are not of a satisfactory quality the buyer has the right to reject the goods and receive a refund[2].

If a buyer is buying the items as a business rather than an ordinary consumer then the buyer would not have a right to rescind the contract[3].As Nicholas is an ordinary consumer in this case he should be able to rescind the contract relying on the ‘quality and fit for a purpose’ element of the Sale of Goods Act 1979[4].

The situation might be different if Nicholas had had the car for a few weeks before the car started to breakdown. In Bernstein v Pamson Motors (Golders Green) Ltd[5] the plaintiff had had the car for 3 weeks before it broke down. When the plaintiff took the car to the garage and told them that he was rejecting the vehicle because it was not in merchantable condition the defendant repaired the car. Despite the fact that the car was repaired the plaintiff still refused to accept the car back. The plaintiff applied to the court to rescind the contract and was told that he was not entitled to do this. The court explained that he was entitled to claim damages, but that these damages would be limited to the amount that it had cost him to get home. Compensation could also be awarded for the amount of petrol in the tank and the loss of the use of his car until it was repaired. The courts were also prepared to make an award to compensate the plaintiff for the loss of his day out. The reason behind the courts refusal to allow the plaintiff to rescind in this case was because he had had sufficient time to try the car out as he had had it for three weeks.

In this particular case as the plaintiff has only had the care for less than a day he should be able to rescind the contract has he has not had time to try the car out and discover any faults with it. It has been stated above that the garage has offered to tune the engine only. As this is not the only defect with the car this is unacceptable and the Nicholas has a right to insist on having his money returned as well as compensation for his lost day out and the £200 he had to pay the other garage for having a look at his car.

The next issue to examine is with regard to the batteries. It has been stated in this scenario that on the return journey the batteries that Mark had put in the watch exploded and has caused serious damage of a permanent nature to his eye. When deciding on liability it is necessary to look at both Perfect motors who sold the batteries and Best Buy Ltd who manufactured the batteries. Although Perfect Motors are selling the batteries they are not directly responsible for the manufacture of them and so therefore it is unlikely that a court would pursue an action against them for the batteries. This would mean that any claim would be against Best Buy Ltd[6].

In bringing an action against Best Buy they would have to prove that the company owed them a duty to ensure that the batteries were safe and that there has been a breach of that duty[7]. They would then need to show that as a result of that breach their son Mark has sustained an injury. In proving that a duty was owed they could rely on the authority of Donaghue v Stevenson[8]. In this case the plaintiff drank a bottle of ginger ale that had a snail in it. As a result of seeing the snail and drinking the infected drink the plaintiff became ill. She brought a claim against the company stating that they owed her a duty of care to ensure that when the bottles are filled that they are free from foreign bodies. She averred that they had breached this duty and as a result of their breach she had suffered personal injury. The case was heard in the House of Lords who held that the plaintiff should succeed as there had been a clear breach if the duty owed to the plaintiff.

A similar case to the scenario above is the case of Langridge v Levy[9] in which the defendant sold the plaintiff’s son a gun which he knew was dangerous for the son to use. The gun exploded in the son’s hands and the courts held that the plaintiff had a right to due the gunmaker for the injuries suffered by his son. This case has been subsequently overruled and could not be relied upon by Christina in an action against Best Buy, though she would be able to rely on Donaghue.

Using this case as an authority she should be able to sue Best Buy for the injuries to her son as well as any damage that has been done to the car or any personal belongings of the son or anyone else in the car. They would be able to claim not only for the immediate injury but also for the long term affects that he is likely to suffer as a result of the accident. The company are attempting to rely on the defence that this has never happened before and that it was not reasonably foreseeable that this would happen.

Best Buy could argue using the case of Tesco Stores Ltd v Pollard[10] that it was not reasonably foreseeable that the batteries would explode. In this case the plaintiffs were appealing against a decision in the court that had awarded compensation in favour of the respondent. The respondent had brought an action against Tesco’s when the safety cap on a bottle of dishwasher powder did not function correctly and her son ingested the powder. Tesco’s in their appeal relied on the fact that it was not reasonably foreseeable that the cap would not work and also that the plaintiff would leave the chemical where the son could get access to it. The judge agreed on this issue but upheld the decision on the basis that despite the foreseeability test there was no getting past the fact that the child managed to open the bottle and that the lid did not meet the British Standard Certificate[11].

There is no mention as to whether the batteries were up to the BSC standard or not but it is likely relying on the Consumer Protection Act 1987 s2 that the court would make a similar finding to the decision above.

When looking at the situation with the paint it is necessary to decide whether the manufacturer of the paint should be liable or whether Ben should be liable. The paint is designed to last for years but is flaking off after only 56 weeks. Ben tries to argue that the paint is not suitable for external work but it later transpires that he failed to follow the preparation correctly[12]. In this case Nicholas would bring an action against Ben for negligence. He would have to show as in the above in respect of the batteries that there had been a duty of care and that duty has been breached. In this particular situation he would also have to show that a person of similar skill and expertise as Ben would not have done the same thing with the paint[13]. He would have to show that Ben had not used reasonable skill in the work he has done[14].

Nicholas could rely on the case of Barclays Bank Plc v Fairclough Building Ltd (No.2)[15] to show that Ben did not use the ordinary skill and expertise that was required of him when he painted the house. In this case the respondent had been employed to clean asbestos and instead of doing it they way they should they used a high pressure hose which had the result of contaminating everywhere else in the building. The building was unusable for some considerable time and the plaintiff successfully sued for economic loss. It is likely in this case that Nicholas would succeed in his action and should be able to recover the money for the paint. The court might order Ben to redo the work or repay the money that he has been paid back to Nicholas.

In the final part of his question regarding the dogs Nicholas should be able to claim back his money that he paid for them as they are not pedigree as the person selling them had held them out to be. There is also a possibility that an action could be brought against the breeder under criminal law for selling dangerous dogs[16]. Under the Dangerous Dogs Act 1991 s1 it is an offence to breed from any dog that is recognised as a dangerous dog under the Act. Under the Act four types of dogs have been banned from being kept in the UK. These are pit bull terriers, Japanese tosa, Dogo Argentiono and Fila Brasileiro.

Although Rottweilers are not specifically mentioned section 3 of the Dangerous Dogs Act does go on to include any dog that presents a serious danger to the public may be classed as a dangerous dog[17]. As the person who sold the dogs had to have the father of the dogs destroyed this would be evidence of the fact that the dog is dangerous and therefore he should not have bred from it. Nicholas should report the matter to the police who would probably charge the seller with breeding dangerous dogs. He should also be able to claim compensation for the fact that the dogs are not pedigree as promised[18]. He could pursue an action under the Trade Description Act 1968[19] as the breeder has made a false statement about the dogs stating that they are pedigree dogs when in fact they are a cross breed. Under section 1 of that Act it is an offence to apply a false trade description to any goods offered for sale. Although it does not specifically mention dogs the Act could be interpreted as including these as the seller has stated that they are pedigree.

In the case of R v Bore[20] the defendant was found guilty of selling autographed photographs of celebrities where the signature on them where found to be fake. Nicholas could rely on cases such as these to show that the dogs did not meet the description given in the advert.

The conclusions that can be drawn from the above are that Nicholas and Christina should be able to rescind the contract for the purchase of the car, and get back the £200 the paid for the other garage to look as the car. They should also be able to claim from Best Buys for their sons injuries despite their claim that this has never happened before. With regard to the paintwork they should be able to get there money back from the decorator as well as the cost of the paint as he did not use the necessary skill and car. With the dogs he could report the seller to the police who could be prosecuted for breeding dangerous dogs as well as have to pay back the money to Nicholas for wrongly describing the dogs as pedigree when they were not[21].

Bibliography

Beale, HG, Bishop WD & Furmston MP. Contract Cases and Materials, 1995, 3rd Ed Butterworths

Civil Procedure Volume 1 and Volume 2, 2002, Sweet & Maxwell

Civil Procedure Volume 2, The White Book Service, 2002, Sweet and Maxwell

Cooke, J, Law of Tort, 7th Ed, 2005, Pearson Education

Elliott, C & Quinn, F, Tort Law, 2005, Pearson Education

Harvey, b & Marston , J . Cases & Commentary on Tort, 1998, 3rd Ed, Pitman Publishing

Mozeley & Whiteley’s, Law Dictionary, 1993, 11th Ed, Butterworths

Rose, FD, Statutes on Contract, Tort and Restitution, 2000, 10th Ed Blackstone’s

Treitel, G H. Law of Contract, 1999, 10th Ed, Sweet & Maxwell

Weir, T A Casebook on Tort, 1996, 8th Ed, Sweet & Maxwell

Table of Cases

Abouzaid v Mothercare (UK) Ltd 2-20-2001 Times 1918,530

Admiral Management Services Ltd v Para Protect Europe Ltd [2003] 2 All E.R. 1017, [2003] 1 Costs L.R. 1, [2002]F.S.R. 59, (2002) 146 S.J.L.B. 93, [2002] 1 W.L.R. 2722, (2002) 99(16) L.S.G. 37, (2002) 152 N.L.J. 518, 3-26-2002 Times 45,511, [2002] C.P. Rep. 37, [2002] EWHC 233

Barber v NSW Bank Ltd [1996] 1 WLR 641

Barclays Bank Plc v Fairclough Building Ltd (No.2)76 B.L.R. 1, 44 Con. L.R. 35, [1995] I.R.L.R. 605, [1995] P.I.Q.R. 152, 2-15-1995 Times 1082,381, 2-20-1995 Independent1082,381

Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All E.R. 220 [1987] R.T.R. 384 Times, October 25, 1986

Donaghue v Stevenson1932 WL 27658 (HL), [1932] A.C. 562, 1932 S.C.(H.L.) 31, [1932] W.N. 139, 1932 S.L.T. 317

DPP v Zhao (2003) 167 J.P. 521, (2003) 167 J.P.N. 794,[2003] EWHC 1724

Eves v DPP [2000] C.L.Y. 198

Farrand v Lazarus [2002] EWHC 226 [2002] 3 All E.R. 175 (2002) 166 J.P. 227 [2002] R.T.R. 26 (2002) 166 J.P.N. 327 Independent, March 25, 2002

Henderson v Merrett Syndicates Ltd (No.1) [1994] 2 Lloyd's Rep. 193, 10-20-1993 Times963,288

Jewson Ltd v Boyhan [2004] B.L.R. 31, [2004] 1 C.L.C. 87, [2004] 1 Lloyd's Rep. 505, [2003] EWCA Civ 1030

Langridge v Levy M. & W. 519; 4 M. & W. 337.

McCutcheon v McCaw [1992] N.I. 337

Northamptonshire CC v Purity Soft Drinks Ltd [2004] EWHC 3119 (2005) 169 J.P. 84 [2005] A.C.D. 81 (2005) 169 J.P.N. 119 Times, December 27, 2004

R v Bore [2004] EWCA Crim 1452

R. (on the application of Newham LBC) v Stratford Magistrates Court2004 WL 2577189 (QBD (Admin Ct)), (2004) 168 J.P. 658, (2004) 168 J.P.N. 1002, [2004] EWHC 2506

R. v Adaway (Glen) 2004 WL 2582629 (CA (Crim Div)), (2004) 168 J.P. 645, (2004) 168 J.P.N. 956, 11-22-2004 Times 2582,629, [2004] EWCA Crim 2831

R. v Holland (Elizabeth) [2003] 1 Cr. App. R. (S.) 60, [2002] EWCA Crim 1585

R. v Killian (John) [2002] EWCA Crim 404 (2002) 166 J.P. 169 (2002) 166 J.P.N. 230

Rediffusion Simulation Ltd v Link Miles Ltd [1993] F.S.R. 369

Re Liability for Defective Food Product (301/2001) [2002] E.C.C. 21

Tesco Stores Ltd v Pollard [2006] EWCA Civ 393 (2006) 103(17) L.S.G. 23 (2006) 150 S.J.L.B. 537

Table of Statutes

Consumer Protection Act 1987

Dangerous Dogs Act 1991

Sale and Supply of Goods Act 1994

Sale of Goods Act 1979

Supply of Goods and Services Act 1982

Trade Description Act 1968

Unfair Contract Terms Act 1977.

1


Footnotes

[1] Barber v NSW Bank Ltd [1996] 1 WLR 641

[2] Sale of Goods Act 1979b s13- 15

[3] Sale of Goods Act 1979 s15A

[4] Jewson Ltd v Boyhan [2004] B.L.R. 31, [2004] 1 C.L.C. 87, [2004] 1 Lloyd's Rep. 505, [2003] EWCA Civ 1030

[5] [1987] 2 All E.R. 220 [1987] R.T.R. 384 Times, October 25, 1986

[6] Abouzaid v Mothercare (UK) Ltd 2-20-2001 Times 1918,530

[7] Re Liability for Defective Food Product (301/2001) [2002] E.C.C. 21

[8] 1932 WL 27658 (HL), [1932] A.C. 562, 1932 S.C.(H.L.) 31, [1932] W.N. 139, 1932 S.L.T. 317

[9] M. & W. 519; 4 M. & W. 337.

[10][ 2006] EWCA Civ 393 (2006) 103(17) L.S.G. 23 (2006) 150 S.J.L.B. 537

[11] Consumer Protection Act 1987 s2

[12] Admiral Management Services Ltd v Para Protect Europe Ltd [2003] 2 All E.R. 1017, [2003] 1 Costs L.R. 1, [2002]F.S.R. 59, (2002) 146 S.J.L.B. 93, [2002] 1 W.L.R. 2722, (2002) 99(16) L.S.G. 37, (2002) 152 N.L.J. 518, 3-26-2002 Times 45,511, [2002] C.P. Rep. 37, [2002] EWHC 233

[13] Henderson v Merrett Syndicates Ltd (No.1) [1994] 2 Lloyd's Rep. 193, 10-20-1993 Times 963,288; Rediffusion Simulation Ltd v Link Miles Ltd [1993] F.S.R. 369

[14] McCutcheon v McCaw [1992] N.I. 337

[15] 76 B.L.R. 1, 44 Con. L.R. 35, [1995] I.R.L.R. 605, [1995] P.I.Q.R. 152, 2-15-1995 Times 1082,381, 2-20-1995 Independent 1082,381

[16] R. (on the application of Newham LBC) v Stratford Magistrates Court2004 WL 2577189 (QBD (Admin Ct)), (2004) 168 J.P. 658, (2004) 168 J.P.N. 1002, [2004] EWHC 2506; R. v Adaway (Glen) 2004 WL 2582629 (CA (Crim Div)), (2004) 168 J.P. 645, (2004) 168 J.P.N. 956, 11-22-2004 Times 2582,629, [2004] EWCA Crim 2831

[17] Eves v DPP [2000] C.L.Y. 198; R. v Holland (Elizabeth) [2003] 1 Cr. App. R. (S.) 60, [2002] EWCA Crim 1585; DPP v Zhao (2003) 167 J.P. 521, (2003) 167 J.P.N. 794,[2003] EWHC 1724

[18] R. v Killian (John) [2002] EWCA Crim 404 (2002) 166 J.P. 169 (2002) 166 J.P.N. 230

[19] Farrand v Lazarus [2002] EWHC 226 [2002] 3 All E.R. 175 (2002) 166 J.P. 227 [2002] R.T.R. 26 (2002) 166 J.P.N. 327 Independent, March 25, 2002

[20] [2004] EWCA Crim 1452

[21] Northamptonshire CC v Purity Soft Drinks Ltd [2004] EWHC 3119 (2005) 169 J.P. 84 [2005] A.C.D. 81 (2005) 169 J.P.N. 119 Times, December 27, 2004


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