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Published: Fri, 02 Feb 2018
Consumer Protection Against Dangerous Goods
Introduced mainly to counter the imbalance of power between companies and consumers, the consumer law also aims to protect the consumer from obtaining dangerous and poor quality goods. The Sale of goods act 1979, the Consumer protection act 1987 and the General product safety regulations 2005 are here for the second mentioned purpose. Both the criminal and civil law are used to ensure that the consumers are well protected in the best way possible. On a quantitative basis, with regards to the number of statutes, we can safely say that the acts seem to be adequate. Simultaneously, it is said that there are some issues with regards to the loopholes of the acts.
Whenever we have a contract for the sale of goods, the seller has obligations not to provide products of poor quality. This provision is found in the sales of good act 1979 more specifically in section 14 of the act. To start with, section 14(2) of the act states that, “where the seller sells goods in the course of a business there is an implied term that the goods supplied are of satisfactory quality.” Any breach to that implied term will lead to the seller being liable to the consumer hence protecting the latter from receiving shoddy goods. This can be seen in the case of Godley v Perry  where the claimant had lost an eye through faulty catapult. We have to note here that no fault has to be proved here. This enhances the position of the consumer; they do not have to prove damage.
Prior to 1994, the test was whether the goods were of merchantable quality. This was effectively replaced by the test of ‘satisfactory quality’ as per the recommendation of the Law Commission. In order to amend for the change in wordings, the Sale of goods (amendment) act 1994 was passed. The most important aspect is to know what a satisfactory product is. This is viewed objectively taking in account of any description given, the price and all other circumstances as stated in section 14(2A) of the act discussed above. Section 14(2B) presents a list of some aspects of quality of goods namely: fitness, appearance and finish, freedom from minor defects, safety and durability. As we can see, the act came up with some help on how to determine whether a product is of satisfactory quality.
The aim here is to protect the consumers from poor quality goods. The basic requirement of judging a non-shoddy product is to ensure that the latter is fit for its purpose. This scenario was seen in the case of Grant v Australian Knitting Mills Ltd  where Lord Wright laid emphasis on the fact that a satisfactory product must be, to start with, fit for its purpose. This aspect is also ensured by statutory provision as in section 14(3) of the Sale of Goods act 1979 where it states that there is an implied term that the goods are to be reasonably fit for its purpose.
The Sale of goods act 1979 as amended by the 1994 act indeed does its best to help consumers. Prior to the amendments in 1994 of the act, when a product was purported or advertised to be meant for several purposes, it was not a necessity for the product to be fit for all the purposes provided it did work satisfactorily for its main purpose. Section 14(2B)(a) did change all this by requiring the goods to be fit for all their purposes. Furthermore consumer expectancy also counts. In the law of contract we do know that consideration must simply be sufficient and this did result in criticisms. In consumer law, it is different in the sense that a higher price should result in a higher quality product as explained Mustill LJ in the case of Rogers v Parish Ltd  . There is provision for this in the statute in section 14(2A). The case of Rogers comes into play again when we consider the fact that appearance and finish is also important for any consumer. In addition to those provisions, the act still protects us from having goods with defects (section 14(2B) (c) ) which is better illustrated by the case of Farnworth Finance Facilities v Attryde  where there were too many defects, be it with the headlights or the chain drive. It was held that the consumer could return the product due to a congeries of defects.
Last but not the least, the act also ensures that durability is to be expected in products. Lord Diplock made that clear in the case of Lambert v Lewis  by stating, “The implied warranty of fitness for a particular purpose relates to the goods at the time of delivery under the contract of sale in the state in which they were delivered. I do not doubt that it is a continuing warranty that the goods will continue to be fit for that purpose for a reasonable time after delivery, so long as they remain in the same apparent state as that in which they were delivered, apart from normal wear and tear.” Remedies are in abundance when the seller breaches the contract, for instance we have section 48B which enables the buyer to repair the product or section 48C where there is a possibility for the buyer to get his money back.
It would be thought that the act is perfect or close but the criticisms were not lacking. It is believed that though the act provides ample protection for consumers the defences available to the sellers are too easy. Section (2C), 2(D) and 2(E) give examples for this. The sellers can escape liability simply by stating that they were not aware of certain issues. While most part of the act requires an objective assessment of the situation, these parts simply require a subjective point of view which means it is easier and simpler for the seller to escape liability.
The other act which purports to protect the consumer in terms of safety is the Consumer protection Act 1987. This act actually consists of two parts. The first one has to do with civil remedies and gives effect to EC directive 85/374. The civil liability is identified is section 2(1) which states that specific persons will be liable if there is damage caused by a defect in a product. Those persons are, as per section 2(2) of the act, producers, importers, suppliers and own-branders. Seemingly, any person in the chain of manufacture and distribution is potentially liable. The initial good aspects of the act are that the consumer can sue the one having the most money or best insurance cover and also the fact that no fault needs to be proved as liability is strict. Section 2(1) of the act gives indication about the products covered by the act. The latter aims to protect the consumer from specific defects as displayed by section 3(1). An objective test is used in determining degree of safety required for the product to be termed as safe. In fact, the courts take into account several circumstances to define safety for instance the manner in which the products have been presented, whether there are warning signs when appropriate and also to such defects which renders the product unsafe. We have to recall that this act is to protect the consumers for unsafe products coming from producers, suppliers and manufacturers. Consequently it will not be operational if the consumer causes the damage by his own fault while not using the product correctly. The act covers damages like death, personal injury and loss of property caused by the damage which resulted from the defective product.
Though the act was welcomed, it has its problems. To start with, it ignored small property damage (under £250) thus providing no relief for such consumers. The defences available to the defendants are strong. This is situated in section 4 of the act. The main ones are that the defendants have to prove that the product complies with the statute and the defect did not exist at the time it was supplied. The other negative points of the act are that the act does, unfortunately, not apply to all products, though the act is meant to use the strict liability ‘weapon’, it has causation too which makes it similar to negligence and lastly there are too many defences.
The next part of the Consumer protection act 1987 uses the criminal law. The aim here is to act as a deterrent. The defendants and claimants are the same as above. The act targets, via section 10(1), anyone who supplies or displays goods that fail to comply with the general safety requirement. As we noticed above the goods have to be reasonably safe. The particularity of this part of the act is that it confers to introduce regulations. This is done by section 11 which specifically give powers to the Secretary of State. To help the latter, we have section 11(2) which provides a list of matters which can be covered in regulations. The act goes even further with section 13 and 14. Section 13(1)(a) allows the Secretary of state to serve a prohibition notice on an individual to prevent him to sell unsafe goods and section 13(1)(b) allows him to ask a person who has supplied unsafe goods to publish, at his own expense, ‘a notice of warning’. Similarly section 14 allows an officer of enforcement authority can serve a suspension notice thus preventing the continuation of supply of the goods in situations where he believes that safety standards have not been respected. Additionally, the officers may make test purchases, enter premises to inspect goods. They can even seize the goods. Furthermore, according to section 16 of the act, unsafe goods can be forfeited and destroyed. This act is considered to be very strict but the defence of due diligence is still available.
The General Product Safety Regulations 2005 had as aim to bring the domestic law in line with the European one. The regulations extend liability for unsafe products and increase penalties. The offences under the act involve the supply of dangerous products to the consumer. The regulations forces both producers and distributors to undertake checks or necessary steps to ensure that a product remain safe throughout its reasonably foreseeable period of use. According to regulation 2, the product must be intended for consumers. This, in fact, can be used as a defence. The aim here is to make producers and manufacturers reduce the risk to the consumer to the strict minimum. They also have the duty to inform consumers of potential risks and dangers (regulation 7). Moreover, producers have to keep tract of the products and be ready to remove them from the market if necessary. The striking point of the regulation 2005 is to make the producers recall the product. This is very expensive but it shows to what extent the consumers can be protected.
To sum up, the above acts of parliament and the General product safety regulations 2005 do try their level best to protect consumers. However, despite the effort, the defences available to the producers or manufacturers are judged to be too much. One particular issue is the due diligence defence where the defendant can escape easily. Nonetheless, the presence of the statutes does create deterrence. Producers are more careful and this is vital in the sense that all precautions will be taken for the consumers not to have shoddy and dangerous products.
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