Trainee solicitor research memo (2000 words)
Trainee canvasser research memo ( 2000 words )
This scenario relates to civil wrongs, and the several duties, responsibilities and liabilities of the delicatessen, the nutrient provider, and the client, Charles Carruthers. It must be established whether there is a responsibility of attention owed, to who and by whom, and whether this has been breached.
In this instance, the client, Charles Carruthers, is seeking elucidation as to who he might be able to action in regard of the hurts that Amber Pretty sustained from the sherd of glass in the ice pick. Furthermore, he is concerned to set up whether or non there is any possible liability for himself as a consequence of Amber prolonging the hurts at his abode.
Duty OF CARE
The cardinal inquiry in this instance is whether we can set up a responsibility of attention, and if so, who it is owed to, and by whom. Without a responsibility of attention being established, there is no liability. As Lord Atkin stated inDonoghue V Stevenson( 1932 ) , “you must take sensible attention to avoid Acts of the Apostless or skips which you can reasonably anticipate would be probably to wound your neighbour.” In visible radiation ofMarc Rich & A ; Co v Bishop Rock Marine Co Limited( 1995 ) , in order for a responsibility of attention to be established, the injury caused must hold been foreseeable, it must be of a sufficient propinquity to the breach of the responsibility to hold been conceivably caused by it, and it must be merely and sensible to enforce this responsibility. Clearly, in the present instance it was foreseeable that a sherd of glass being in the bath of ice pick would harm Amber Pretty by eating it. It will be more hard to set up that there is a sufficient propinquity between the breach and the harm ( or instead, hurt sustained by Amber ) , and that it would be merely and sensible to enforce the responsibility of attention upon the suspects.
RELEVANT COMMON Law
As mentioned above, this affair relates to tort, which can be seen as the jurisprudence regulating non-contractual civil duties. As such, all the parties involved in the present instance are potentially capable to the jurisprudence in this country. More specifically, the jurisprudence regulating this scenario relates to the liability of parties for hurts sustained by another party as a consequence of defects in a merchandise. A suited starting point, so, is the seminal civil wrong instance ofDonoghue V Stevenson( 1932 ) , which concerned merchandise liability. Harmonizing to this important instance, where there is physical harm caused by a defective merchandise ( in that instance, a bottle of fizzing drink ) , the maker may be apt to the terminal user, or consumer, even in the absence of a contract. The significance of this is that the philosophy of privity of contract was overridden by the instance. There was, in other words, still a responsibility of attention owed to the consumer by the maker. It has besides been highlighted at common jurisprudence that there will non usually be an action at civil wrong where the merchandise is simply faulty, but has non really caused any physical injury.
This establishes, so, that there is a responsibility of attention owed to the terminal user, or consumer, of a defective merchandise. The following issue to see is who the responsibility is owed by. In the present instance, which is common in instances of this type, there is more than one party who could be deemed to owe the responsibility of attention ; the maker and besides the distributer.Donoghue V Stevenson( 1932 ) established that themakerof a defective merchandise would be apt to the consumer. Subsequently, nevertheless, the tribunals have interpreted “manufacturer” instead widely. InStennett V Hancock and Peters( 1939 ) , for illustration, the party responsible for careless fixs of a wheel on a lorry was found to be apt. Possibly of more relevancy to the present instance isAndrews V Hopkinson( 1957 ) , in which a second-hand auto was apt because it was held that a competent machinist should hold been able to place the mistake in one of the autos which caused an accident. The significance of this instance is that the liability was imposed on the provider, in fortunes where such provider would usually be expected to look into the goods for mistakes. This may enforce liability on the store from which the client purchased the ice cram.
Although there will about surely be a responsibility of attention owed someplace, we must besides see exactly who it is owed to. In other words, in the present instance, is the “ultimate consumer” deemed to be the client, who purchased the ice pick, or Amber Pretty who really consumed it? If it were to be found that the makers owed a responsibility of attention merely to Mr Carruthers, and non to Amber Pretty, there would be no liability because it was non Mr Carruthers who sustained any hurt. However, it seems that the tribunals are willing to construe “ultimate consumer” widely in order to enforce a responsibility of attention towards a wider group of terminal users. InBarnett V H & A ; J Packer & A ; Co( 1940 ) , for illustration, a tradesman was injured by a faulty Sweet, which contained a piece of metal. The maker was apt, and the tradesman was deemed to be included in the definition of “consumer” .
It would look from the above, so, that there is a responsibility of attention owed by the makers ( Frozen North ) to the terminal users of the merchandise, which would include Amber Pretty. An country which might impact this liability, nevertheless, is if there has arisen a sensible chance for review someplace in the line of causing. The tribunals have considered this in a figure of instances, and have by and large found that a defendant maker will non get away liability unless there is a sensible chance of scrutiny of the goods someplace farther down the supply concatenation. There are two possible points at which an scrutiny could hold taken topographic point in the present instance ; foremost by the providers, Best Possible Taste, and secondly by the client, Mr Carruthers, prior to functioning the ice pick to Amber Pretty. InD. w. griffiths5 Arch Engineering Co( 1968 ) , one of the joint suspects was found apt for hurt caused to the complainant by faulty equipment which was owned by the other suspect, but which the 2nd suspect had had an chance to analyze. The rule that appears to hold emerged is that where the makers of the faulty merchandise have no ground to presume that an intermediate scrutiny will take topographic point, the makers will be apt. This was further refined inGrant V Australian Knitting Mills( 1936 ) , in which it was stated that for the responsibility to originate, “the client must utilize the article precisely as it left the shaper, that is in all stuff characteristics, and utilize it as it was intended to be used.” This would propose that, peculiarly in the instance of the ice pick which was presumptively in a certain container, the makers do owe a responsibility to the terminal users.
Having established that there is a responsibility of attention owed by the maker of the ice pick, Frozen North, to the terminal user, it must now be considered whether there is sufficient cogent evidence that the defect existed in the ice pick when it left the maker. The client tells us that Amber merely cut her pharynx on the sherd of glass when she ate a mouthful of the ice pick and pudding. InEvans v Triplex Safety Glass Co Limited( 1936 ) , the makers of a reinforced auto windshield were found non to be apt when the windshield disintegrated, and no obvious cause was found. The logical thinking for the suspects non being apt for the hurts to the complainants ensuing from this accident was that there was deficient grounds that the defect which caused the decomposition was the mistake of the industries ; there had been excessively many chances in the supply concatenation for another party to present or do the defect. In the present instance, it may be found that the sherd of glass could hold found its manner into the ice pick at the retailers’ premises, or even at Mr Carruthers’ house when he was functioning it up.
RELEVANT STATUTORY Law
This, so, represents the chief common jurisprudence commissariats that will be of relevancy in measuring liability in the present instance. There are besides, nevertheless, certain statutory commissariats which may be of significance. TheConsumer Protection Act 1987provides a footing of claim for claimants who have suffered as a consequence of defective goods. It can, in fact, be easier to set up liability under the commissariats of this Act than under the common jurisprudence, as the Act creates a rigorous liability for manufacturers of merchandises that are defective or faulty and which cause personal hurt and belongings harm. It is easier to set up liability under these commissariats because there is no demand to set up mistake on the portion of the manufacturer ( unlike at common jurisprudence ) . This may be of relevancy in set uping the liability of both the maker, and so the retail merchant. The Act provides that exclusion of liability is non effectual in the context of consumer protection. The missive sent to Mr Carruthers by Best Possible Taste, so, which states that “we have no manner of look intoing the contents of our ice pick tubs” , will non avoid liability.
SUMMARY AND CLIENT’S OPTIONS
It is improbable that Mr Carruthers will be in a place to incur liability for the accident to Amber Pretty. Although it may be possible to set up a responsibility of attention owing to Ms Pretty by the client, this is improbable as it would be unreasonable to enforce a responsibility of review upon him, peculiarly when he has purchased the ice pick on the confidence of the store keeper of its quality. It may, nevertheless, be hard to set up the liability of either the maker or the trader, despite there being assorted common jurisprudence and statutory mechanisms easing this. The trouble arises chiefly because it will be difficult to turn out that the sherd of glass entered the ice pick bath at the makers. Indeed, it may be hard even to set up that the glass was in the bath of ice pick at all ; it may hold been in the other constitutional ingredients of the pudding.
Ms Pretty will, nevertheless, be able to action both the retail merchant, and the maker as a consequence of her hurts, as the common jurisprudence ( and legislative act ) have leaned towards affording greater protection to consumers in these fortunes.
I began by sing a general text edition,Street on Torts, and turn uping what I considered to be the relevant chapters. It was clear that this scenario related to the civil wrong of carelessness, and that it was concerned with merchandise liability. Immediately a figure of seminal instances appeared to be relevant, and warranted farther probe ( notablyDonoghue V Stevenson) . I considered the opinions of a figure of relevant instances ( the 1s listed in the Bibliography below ) which I accessed electronically through the LexisNexis jurisprudence studies.
I believe my scheme of sing the general country of jurisprudence, and so come oning on to interrupt it down and see cardinal facets in more deepness before using them to the facts of the scenario worked good. I was runing within a context of basic consciousness of the chief facets of this country of jurisprudence, which enable me to retain a position of the bigger image while still covering with the single elements.
Consumer Protection Act 1987
Andrews V Hopkinson [ 1957 ] 1 QB 229
Barnett V H & A ; J Packer & A ; Co [ 1940 ] 3 All ER 575
Donoghue V Stevenson [ 1932 ] AC 562
Evans v Triplex Safety Glass Co Limited [ 1936 ] 1 All ER 283
Grant V Australian Knitting Mills [ 1936 ] AC 85
Griffiths V Arch Engineering Co [ 1968 ] 3 All ER 217
Marc Rich & A ; Co v Bishop Rock Marine Co Limited [ 1995 ] 3 All ER 307
Stennett V Hancock and Peters [ 1939 ] 2 All ER 578
Murphy, J. ( 2003 )Street on Torts, 11ThursdayEdition ( London: LexisNexis )