Amber Pretty Exercise

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Essay Title A – Amber Pretty exercise

The Consumer Protection Act 1987 was passed to give effect to the Directive. Compare the rights and remedies given by the Act with those available in Contract and Tort. Consider in the light of this comparison whether the Act has succeeded in its main aims. -------------------------------------------------

Defective products, which cause damage, can give rise to liability and this traditionally arose under the common law. However, the common law approach places the burden on the claimant to establish that the defendant owes a duty to him, was in breach of that duty and that they suffered damages as a result of that breach, and it may not always be straightforward to establish causation, especially when the defect arose on part of the manufacturer. Claims may also arise in Contract law under statutory devices, such as the Supply of Goods Act 1979, the Supply of Goods and Services Act 1982 and the Unfair Contract Terms Act 1977.

Establishing causation by the claimant on defective products has somewhat been corrected by the Consumer Protection Act 1987. The Consumer Protection Act 1987 (CPA) came into force on 15 May 1987, giving effect to the EC Directive 85/374/EEC. It prohibits the manufacture and supply of unsafe goods, imposes strict liability on producers, own-branders and importers of defective products, making them responsible for the defects found in their products. S 2(1) of the CPA 1987 only requires that the claimant show that the defective product was responsible for his injuries.

In Negligence, the claimant has to show that there was a duty of care, that it was breached by the manufacturer, that they suffered damages as a result of that breach and the loss is not too remote. Under S 2(1) of CPA 1987, the claimant only has to show that he has suffered a loss or damage caused by a defective in a product by the defendant. CPA 1987 extends consumer rights, as it does not require the claimant to prove that defective product resulted from any fault by the defendant: The fact that the defect exists is enough for the defendant to be liable.

Under Lord Atkin’s narrow rule in Donoghue v Stevenson, a manufacturer can include anyone who created the inherent danger in the goods, including assemblers, installers, service engineers, retailers and suppliers. While Negligence relies on the Narrow rule, Contract encompasses anyone that provides goods or services under the Sale of Goods Act 1979 (SGA) and the Supply of Goods and Services Act 1982 (SGSA) – effectively anyone who was responsible for the manufacture and installation of the product. The potential defendants under CPA 1987 can include:

* Producers: Usually the manufacturer of the product, but can encompass producers of the component parts of the product that are responsible for the defect * Own-branders: Under s 2(2)(b), own-branders are suppliers who put label their brand on a product, a product which they have not actually manufactured themselves. * Importers: Importers who import goods from outside the EU * ‘Forgetful suppliers’: Under s 2(3), suppliers who fail to identify, at the request of the claimant, any of the entities involved in the supply chain can be liable for the defective product

While the class of defendants are much wider in Tort and Contract (especially for persons providing a service), CPA 1987 enforces liability on own-branders, importers from outside the EU and ‘forgetful suppliers’ who fail to disclose the supply chain, e.g. wholesalers and manufacturers. These defendants would not be within the scope of a Negligence or Contract claim, and comparatively, persons providing a service (i.e. for the installation of goods) would not be within the scope of a CPA 1987 claim as it primarily deals with defective products, and not services.

Under s2 and 3 of the CPA 1987, ‘defect’ effectively means ‘unsafe’, i.e. that the safety of the product is not such people generally are expect....
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