T6 : Consumer and Marketing Law and T7: Negligence

Question 1

FTA Elements

Answer 1

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

Question 2

Determination of Misleading conduct

Answer 2

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

Question 3

Contracting out

Answer 3

Written agreement, both parties in trade and terms are fair and reasonable to both parties

Question 4

CGA Elements

Answer 4

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

Question 5

Contracting out

Answer 5

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

Question 6

Supplier gurantees for goods (S7, S8)

Answer 6

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

Question 7

S8,9,10,12,13 CGA

Answer 7

8 = fit for purpose
9 = comply with description
10 = comply with sample
12 = repair and service parts
13 - express undertakings

Question 8

Supplier gurantees for services

Answer 8

Reasonable skill and care (S28)
Fitness for purpose (S29)
Completed in reasonable time (S30
Reasonable price (S31)

Question 9

Remedies against supplier of goods

Answer 9

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

Question 10

Remedies against manufacturer of goods

Answer 10

Claim damages for differences in price paid, current value of goods + other reasonably forseeable

Question 11

Remedies agaisnt service provider

Answer 11

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

Question 12

Negligence vs Negligent misstatement

Answer 12

Negligence - legal liability for carelessness

Negligent misstatement = liability for careless word

Question 13

Elements of Negligence

Answer 13

Duty of care
Breach of duty
Causation
Remoteness of Harm

Question 14

Duty of Care

Answer 14

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

Question 15

Policy factors affecting duty of care

Answer 15

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

Question 16

Factors affecting judicial imposition of duty of care

Answer 16

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

Question 17

RR vs Carter holding

Answer 17

no negligence has RR had no duty of care for CH as ther is no contract

Question 18

Breach of duty

Answer 18

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

Question 19

Causation

Answer 19

But for test = A’s loss would not happen but for B’s negligent act

Question 20

Remoteness of Harm

Answer 20

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

Question 21

Negligent defences

Answer 21

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

Question 22

Negligent Misstatement Elements

Answer 22

Duty of care
Breach of care
Actual reliance
Remoteness of harm

Question 23

Duty of Care (Negligent Misstatement)

Answer 23

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?

Question 24

breach of duty (NM)

Answer 24

D must have breached the standard of care they owed to plaintiff

Question 25

Reliance

Answer 25

P must have replied on the statement/information

Question 26

Remoteness

Answer 26

loss must not be too remote

Question 27

Disclaimers

Answer 27

Effective = clear and unambiguous, Defandent gives reasonable notice of disclaimed

Question 28

Sections for FTA

Answer 28

S9 = in trade and misleading
S10 = goods
11 = sevices
12 = employment
12A = unsubstianted representations
S13 = false or misleading reps = quality, price, standard etc