T6 : Consumer and Marketing Law and T7: Negligence Flashcards
FTA Elements
In Trade = Selling goods/ services or land as their key profession, industry or business occupation
Misleading or deceptive conduct: covers actions, gestures or failure to warn. Also includes half truths, literal truths and silence and misrepresentation of law; intention is irrelevant
Determination of Misleading conduct
Would a reasonable person of the target audience be likely to be misled?
Overall impression created by conduct
Note Puffs = not misleading
Aranmore developments vs New Zealand Developments: only guillible people would have
Contracting out
Written agreement, both parties in trade and terms are fair and reasonable to both parties
CGA Elements
Applies to Consumer = someone who acquires goods or services for ordinary, domestic or household use or consumption
Does not apply if G/S are resupplied in trade or for resale in trade, consumed in the production of another product or used efor repairing goods or fixtures on land
Contracting out
Only business to business transactions may contract out: Both parties agree in writing and both parties are in trade. Terms are fair and reasonable to both parties
Supplier gurantees for goods (S7, S8)
Acceptable quality= fit for purpose, acceptable in appearance and finish, price statements or labels and representation
Not a breach if told of defects before supplied or if consumer had inappropriate or excessive use
S8,9,10,12,13 CGA
8 = fit for purpose 9 = comply with description 10 = comply with sample 12 = repair and service parts 13 - express undertakings
Supplier gurantees for services
Reasonable skill and care (S28)
Fitness for purpose (S29)
Completed in reasonable time (S30
Reasonable price (S31)
Remedies against supplier of goods
Supplier must
First try repair or replace the G/S-> if they cannot repair or defect is of substantial character consumer may opt for refund, replacement or seek damages in reduction in value of goods-> if the supplier fails to repair or replace in a reasonable time -> consumer may reject goods or obtain costs and find alternative place to repair
Remedies against manufacturer of goods
Claim damages for differences in price paid, current value of goods + other reasonably forseeable
Remedies agaisnt service provider
Remedy must be within reasonable time, failure = damages or cancellation, consumer may sue for consequential damages
Exceptions are if : outside of human control or if actions were done by an agent of provider
Negligence vs Negligent misstatement
Negligence - legal liability for carelessness
Negligent misstatement = liability for careless word
Elements of Negligence
Duty of care
Breach of duty
Causation
Remoteness of Harm
Duty of Care
Degree of proximity test; donague vs Stevenson -> duty of care owed based on proximity (who are close enough to be affected by actions) and forseeability= who the person could forsee as peiple who might be affected by their actions.
Foreseeability -> neighborhood principle-. reasonable care to avoid acts which affects all persons who are closely and directly affected by actions-> Bourhill vs Young no liability as no relationship or degree of proximity
Proximity-> Time-> time lag negates duty-> Meah v Mccreamer-> Cannot be held to owe duty of care because many months had passed
Proximity -> Place/personal connection-> Physical proximity or relationship between parties-> dorset yatch vs home office
Policy factors affecting duty of care
limit scope of duty for reasons of ecnomic efficieny or generally accepted notions of what is fair. for example organisations which provide social services - fire service, police
Factors affecting judicial imposition of duty of care
foreseeability is not the only issue
no presumptions for or against finding a duty of care
judicial reasoning by way of analogy
If economic loss, the courts have in the past been less willing to impose a duty of care
Special relationship = more inclined to impose duty of care
legislative background which encourages or discourages the imposition of a duty of care
Contractual background which encourages or discourages the imposition of a duty of care
RR vs Carter holding
no negligence has RR had no duty of care for CH as ther is no contract
Breach of duty
reasonable person test = dependent on facts = skills +expertise of professional and trades people will be held to standard of the reasonable practioneer. Risk allocation = care is dependent on the risks involved in the activity
Causation
But for test = A’s loss would not happen but for B’s negligent act
Remoteness of Harm
Wagon mount test= full extent of damage does not need to be foreseen, plaintiff was not too remote from defendants breach
Egg skull principle = defedent must take responsibility for all damages regardless of susceptability
Negligent defences
Contributory negligence= A was partly responsible for own loss, thus split blame
Voluntary assumption of risk= A put themselves in a position voluntarily for loss is likely but defendent must prove A knew risk and freely decided to assume responsibility
Negligent Misstatement Elements
Duty of care
Breach of care
Actual reliance
Remoteness of harm
Duty of Care (Negligent Misstatement)
Proximity = is there an assumption of responsibility by defendant + is there a reliance on the information by plaintiff on statement
Assumption of responsibility = special relationship
Type 1 = P/D are in contract, liability is contract + negligent misstatement
Type 2= P/D have communicated directly or indirectly = liability likely (Hedley Byrne v Heller - no liability for disclaimer)
3 = D knows p will act on information for immediate purpose= liability likely Smith vs Eric S Bush
4 = D has special knowledge and may infer plaintfill will use this informaiton= Liabilitly is possible ( PWC vs Kwan)
5 = D know statment has weight but knows nothing of P= Liability is unlikely (caparo industries vs dickman)
what did the def prepare statement for?
Who did the def prepare the statement for?
What did the P use the statement for?
Was it reasonable to rely on the statement?
breach of duty (NM)
D must have breached the standard of care they owed to plaintiff
Reliance
P must have replied on the statement/information
Remoteness
loss must not be too remote
Disclaimers
Effective = clear and unambiguous, Defandent gives reasonable notice of disclaimed
Sections for FTA
S9 = in trade and misleading S10 = goods 11 = sevices 12 = employment 12A = unsubstianted representations S13 = false or misleading reps = quality, price, standard etc
