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CONSUMER PROTECTION LAW

Consumer protection
In Kenya there is no specific law dealing with consumer law. The law is
scattered in various statutes and private law measures. In Kenyan laws there
are two measures:
1. Private law measures, contained in certain topics in the Law of Contract and
Law of tort, which are relevant.
2. Public law measures. Public law measures that indirectly protect the
consumer. In UK they have a specific consumer protection law, The Consumer
Protection Act 1987.

The most important statutes are:
1. The Trade Descriptions Act, which follows the British law. It covers that if
you make certain descriptions in goods and services and if that description is
false you are covered by the Act. It contains very comprehensive measures.

3. The Standards Act. This deals with certain specific standards and any person
who is either manufacturing, producing or exporting, the goods must be
according to the specifications set by this Act. The statute also establishes the
Kenya Bureau of Standards.
4. The Weights and Measures Act. Under this law contains measures against
shortfalls. Weights and Measures Department, created under the act, enforces
this Act.
5. The Restrictive Trade Practices, Monopolies and Price Control Act
6. The Foods, Drugs and Chemical Substances Act
7. The Pharmacy and Poisons Act. Controls quality and sale of drugs and over
the counter sales.
8. The Public Health Act.
9. The Fertilizers and Animal Foodstuffs Act. What kind of fertilizers to be use
and quality of animal foods.

Then there are Acts which control professions:
The Law society of Kenya Act
The Medical and Dentists Act
The Nurses Act
The Architect Act.

In private law measures there are also Acts of Parliament.


The Private Law Measures
Law of Contract
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Law of contract, general as well special contracts for consumer protection:
The Sale of Goods Act
The Hire Purchase Act
Misrepresentation: This is one of the most important provisions. This is a pre-
contract statement that is false/misleading. If it is false then the party who has
made the false statement has made misrepresentation and therefore the
contract is voidable. Note the Trade Descriptions Act. Statements made before
contract include advertisement (which is an invitation), catalogues, brochures,
price list, etc. in which they are supplying certain information. If these are
false, can this be taken as misrepresentation?

Sales of Goods Act is also a special contract. There are certain terms that are
implied in every contract of sale. Protects the consumer directly. Before this act
the rule was Let the buyer be aware.

Terms are express agreement between the parties. They are part of the
contract. May be express or may be implied.

How can terms be implied? The several ways: (1) implied by customs in a trade
or business (2) statute such as the Hire Purchase and Sale of Goods Acts; (3)
courts, in order to give business efficacy to the contract then the court will
imply certain terms; judicial decisions of the courts.

Consumer protection covers goods as well as services.

Inclusive definitionssuch as the Sale of Goods
Exhaustive definitions
Chattels personal
Chattels real
Moveable property
Immoveable property
Choses in action (claims that are actionable)

Goods under the Sale of Goods Act does not include money, choses in action,
land and structures on land

Davies v Samuels: the question arose whether services are covered in the Sale
of Goods Act. A husband went to a dentist for dentures for his wife and they
agreed on a certain price. The dentist made the dentures for the wife but they
did not fit properly. The dentist said we never agreed that they should fit your
wifes jaws. Husband refused to pay and the dentist sued him for breach of
contract. And the question was whether it was a contract for the sale of goods
or the provision of services? The court said if was a contract of sale of goods,
then the Act will apply, if not it will not apply. The court said it will imply
certain conditions: if it was service provided it must fit the purpose for which it
was intended.
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The deficiency of contract: they do not cover a third party benefiting the
contract. Privity of contract. This is the main weakness of the contract law. So
their scope is limited.

The other problem is the questions you have to answer:
Who is the consumer?
Why protect the consumer?
What measures to protect the consumer?

Who is the consumer? How do you define the consumer? The Molony
Committee was establish to suggest ways and means to protect the consumer.
It gave the definition: Any person who purchases goods and affected by it is a
consumer. But this definition does not cover consumer of services. This is
another drawback to the contract law it only protects the person who has
made the contract.

In tort these conditions are not required.

Exclusion clauses or limitation clauses.
Here the law allows a party to the contract to exclude or limit his liability.
Kenya follows the common law ( if is reasonable). But in UK they have The
Unfair Contract Terms Act, e.g. injury and death cannot be excluded from a
contract.

The tort law
The main rules
1. Negligence, provided in Danogue v Stevens is still relevant to consumer
protection. The manufacturer owes a duty of care to the ultimate consumer
(House of Lords decision).
2. Product liability rule. If a manufacturer sup0plies unsafe goods to a
consumer he shall be liable for defective product under the principle of
Donogue v Stevens (1932). The Donogue v Steven expanded. In UK and USA
product liability is also a statutory provision. In Kenya it is common law, under
tort.
The neighbour principle. Lord Atkin asked, who is my neighbourthe person
who is in your contemplation when you are directing your mind to your
neighbour is your consumer. So a consumer who is a person who uses goods
or services and affected by it, any person. We are widening the definition of
consumer.

Christine Mpaka, Consumer Protection: defines consumer as any person who
uses goods or services and affected by it, any person. We are widening the
definition of consumer.
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In Donogue a consumer is the ultimate consumer.

Here a consumer defined as a person who uses goods or services and is
affected by it.

Ralph Naderguru of consumerismsaid consumer protection must be a
constitutional right and consumer means any citizens who has suffered
because of the provisions of goods or services.


Occupiers liability. Covered by The Occupiers Liability Act. There are two
situations, (1) the occupancy duty and (2) activity duty.

The Sarit Centre case.

Why protect the consumer? What do you protect the consumer from?
Consumer does not know what is in the goods and therefore needs to be
protected from unsafe goods.
Secondly, the consumer needs to be protected from deficient quality of goods or
services, i.e. the quality is poor.
Thirdly, the consumer needs to be protected from fraudulent or misleading or
undesirable trading practices.
Fourthly, the consumer needs to be protected from insufficient information to
exercise prudent judgment
Fifthly, economic exploitation because of lack of competition or excessive
prices.

Sixthly, protection from short measures or weights
Sevenly, protection from eviction and excessive rents

All these are legal measures. But there are also extra-legal measures where you
do not go to court, such as consumer organizations

Consumer education: the consumer must be educated about their rights and
the services and goods that are available in the market.

Which. Gives such education in UK.

Introduction to Consumer Protection Law

The rise of consumerism in the 20
th
century coupled with the multiplication of
products and services in the market has led to increased problems for
consumers with regard to the quality of goods and services and their prices and
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general availability. The choice for the consumer is made difficult due to the
range of available options and aggressive advertisement for each type of goods
and services. Some goods and services call for expertise in discerning what
shortcomings might have and such expertise may not be available to all
consumers. The interest of multinational corporations in the world market
present its special problems for developing countries who do not measure up to
the bargaining muscle of the said corporations. Such corporations may offer
different standards of goods in the developing countries from those they offer in
developed countries and therefore there is a need for legal mechanisms to
regulate consumer products and services.

Definition of Consumers

In the literal sense a consumer is a person who purchases goods or services.
The Molony Committee on consumer protection in Britain regarded a consumer
as one who purchases or hire-purchases goods for private use or consumption.

The private consumer of services is a consumer though the Molony Committee
did not consider it. Thus under this definition the consumer is purchaser of
goods or services supplied by another. However if we take consumer as a
person who purchases goods or services, then a Construction Company
purchasing building materials for use in the construction of housing estate
would be acting as a consumer. However, for the purpose of consumer
protection law the term consumer has a narrow meaning which is based on
capacity in which the consumer acquires goods or services and the capacity in
which the supplier of goods or services supply them.

The general view of the consumer or at least that given by modern consumer
legislation is often individual dealing with a commercial enterprise. However it
is also the case that the term consumer encompasses a person who makes use
of the services provided by the public sector undertakings or private
monopolies subject to public control. On this basis consumer protection law
would also cover complaints by individuals about services provided by public
sector undertakings such as Kenya Railways, Kenya Power and Lighting
Company, Kenya Airways and city councils. Furthermore in the public sector
the consumer might also have reason to complain about the services he has
received in government hospitals.

These definitions of consumer are narrower and also broader at the same time.
They are narrower in the sense that the consumer is defined as a person who
purchases goods or services in that situation the definition covers only
consumers who have contractual relationships with the supplier of goods or
services. At the same time they are broader in the sense that they apply also to
those consumers who consume goods in manufacturing of other goods.
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Christine Mpaka defines consumer as any person who uses any goods or
services and can be any person who is affected by the use of those goods and
services supplied by other persons. This definition is wider than the other
definitions because it has been realized that limiting the term consumer to
purchasers is undesirable because many people use goods or services that they
have not bought and if those goods occasion harm to a user as opposed to
purchaser, he or she would be left without a remedy hence the definition of a
consumer should be broadened to include anyone who consumes goods or
services at the end of the chain of production. The definition by Mpaka is
wider in the sense that it covers both the contractual and non-contractual
consumer.

In Donaghue v Stevenson it was held by the House of Lords that a
manufacturer is liable for defective product to the ultimate consumer even if
there is no contractual relationship between them. In that case a consumer
has been defined as a person who is in contemplation of the supplier by
directing his mind to the acts or omissions in question. This would cover all
types of consumers for example in case of certain services such as medical
services avail free of charge.

The American guru of consumerism Ralph Nader has taken the view that the
term consumer should be equated with the word citizen and that the consumer
protection law should be regarded as an aspect of protection of civil rights.

CONSUMER PROTECTION

The term consumer protection has been taken to mean those measures which
contribute directly or indirectly to the consumer assurance that he will buy
goods of a suitable quality appropriate to his purpose. That they will give him
reasonable use and if he has just complaints there will be means for redress
(Molony Committee Report) thus the term consumer protection covers a wide
range of areas including
(a) Unsafe products or goods;
(b) Qualitatively deficient goods or services;
(c) Fraudulent misleading or unfair trade practices;
(d) Insufficient information to exercise a prudent buying decision;
(e) Economic exploitation through lack of competition;
(f) Protection from excessive prices or charges;
(g) Protection from short measures;
(h) Protection from health hazards.

The European Council adopted a consumer protection and information
programme listing five fundamental rights of the consumer

1. The right to protection against health and safety hazards;
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2. The right to protection of economic interest;
3. The right to advice, help and redress;
4. The right to information and education;
5. The right to consultation and representation

The term consumer protection involves two aspects; a preventive one and a
remedial one. The former encompasses measures that regulate the supply and
quantity of goods or services ensuring that the consumer is not ripped off. It
also includes the education of the consumer to make him conversant with the
varieties of goods and services available to him thus enabling him to make an
informed choice on any particular product or service. This measure also
educates the consumer to make him conversant with his rights. The latter
measure is concerned with the redress for those consumers whose interest
have been adversely affected for example the standard set in the Kenya Bureau
of Standards established under that Act is a preventive measure for consumer
protection in the sense that no goods below a certain standard can be supplied
in Kenya whether locally manufactured or imported.

On the other hand the Sale of Goods Act is a remedial measure in that if a
seller is in breach of an implied term under the Act the buyer can sue the seller
for damages.

Given that nobody is compelled to use goods or services supplied to him, the
question arises why a consumer needs to be protected. In the modern society
most people find themselves in a situation where they have to purchase or use
certain goods or services. The buyer or user is not always at par with the seller
or provider of the service. He does not have the same bargaining power as that
of the supplier. The monopoly enjoyed by certain providers of goods or services
makes it easy for such providers to dictate the terms to the consumer.

The other issue that needs to be addressed is what would comprise the
consumer interests. These are discernible expectations of consumer with
regard to product and services that he must make use of. The consumer
expects that the product or services are suitable and appropriate for his
intended purpose. These expectations can be elusive if products or services are
falsely described or they are qualitatively deficient or unsafe. The consumer
can only find out the defect once he has purchased or used goods or services.
The consumer is also concerned particularly in Kenya about the availability of
products and services that he needs. Price is also of importance to a
consumer. This regulates what a consumer considers to be his needs. The
price tag is a determinant for most consumers and the cheaper the product the
better for the consumer.

In the case prepaid goods the consumer wishes to be sure that the marked
quantity is the actual quantity of goods supplied. He is also concerned about
the safety of the products or services. In this respect he would also like to have
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adequate information about the use of any product or service to avoid
endangering his and lives of others.

Consumer Protection Measures:

There are several legal instruments to regulate consumer products and
services. However it must be said at the outset that there is no specific
legislation in Kenya to protect consumers as such but there are several private
law and public law measures which touch upon the consumer protection
though these measures are not directly concerned with the consumer
protection.

PRIVATE LAW MEASURES

Consumer protection in private law falls within the domain of contract and tort
since all the rights in the two categories are private law rights, the aggrieved
consumer has to identify his claim and proceed to bargain for it and find a
claim should the need arise to obtain redress. The states only involvement
here is by availing its personnel to deal with the complaint once a suit is filed
in a court. Should the consumer decide to take no action, then the state has
absolutely no interest in the affair and the consumer bears the loss on
disadvantage.

Contract
The Law of Contract plays some role in protection of consumers. The areas of
general law of contract which have a bearing on consumer protection are:
1. Misrepresentation;
2. Terms implied by courts in relation to services; and
3. the Exclusion Clauses.

The law of contract is based on the concept of equal bargaining power.
Consequently parties to a contract are deemed to be capable of negotiating
terms that are fair to themselves. This assumption of equality is untenable. In
the case of many products and services many undertakings that have
monopoly in supply of goods and services can easily dictate the terms to the
consumers. They can assume an attitude of take it or leave it. This places the
consumer in a very difficult position given that he requires those services or
products and may not be able to do without them. Once a consumer enters
into a contract with a supplier of goods or services, it is up to him to enforce
the contract in case of breach. If he is ignorant of his rights, then he remains
without redress even in instances where the consumer is cognizant of his
rights he may be discouraged by the amount of time it takes to see a matter
determined in a court of law. The lawyers fee for services may also be
prohibitive. The law of contract has ingrained in its principles that do not
generally favour all consumers for example the doctrine of the privity of
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contract prohibits a person to seek redress when he has no contractual
relationship with the supplier.

The Sale of Goods Act and the Hire Purchase Act are special types of contract.
The Sale of Goods Act gives certain rights to the buyer of goods and it implies
certain terms in each and every contract for sale of goods though the parties to
the contract of sale may opt out of this implied terms by means of expressed
agreements. These implied terms include that the seller should have the right
to sell, the buyer should have quiet possession of the goods and the goods
supplied must be free from any charge or encumbrance. It also covers sale by
restrictions, the term as to merchantability and fitness for purpose and the sale
by sample as relates the sale by description and sample.

The Hire Purchase Act also gives certain rights to the hirer. This includes
terms similar to those implied under the Sale of Goods Act. The Hire Purchase
Act also protects a hirer by means of several rights which are protected under
the Act such as where the hirer has paid two thirds or more of his instalments
the owner of the goods cannot take repossession of the goods without an order
from the court.

Law of Tort
Under the law of tort the consumer can seek redress from the provider of goods
or services if he can prove negligence on the part of such provider that leads to
harm befalling him. The remedies in tort law are wider in the sense that
although there is no privity of contract between the ultimate consumer and the
manufacturer, the manufacturer of supplier maybe held liable for negligence.

A consumer can also fall to the law of tort in instances where he is dissatisfied
with the quality of services he obtains from a professional person such as a
doctor or a lawyer. In certain cases the law of tort can also provide remedies
for negligent misstatement causing economic loss. However the law of tort has
its own weaknesses. The main weaknesses that it is a part of private law and
therefore it is for the consumer himself to take an action. Sometimes the
consumer may not be aware of his rights or he may be reluctant to go for time
consuming litigation.

PUBLIC LAW MEASURES

In Kenya certain statutes have been enacted which indirectly protects
consumers or they regulate consumers products of services. These laws are
prescriptive, prohibitive and protective. They carry sanctions which are
restrictive, prohibitive and protective. They carry sanctions which are to be
enforced as penalties against non-conformers. The state places positive duties
on providers or sellers of certain services and goods. It uses its machinery to
detect non-conformers and proceeds to prosecute the culprits. The complexity
of the market has dictated this developments. Measures cannot be left to the
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consumer and provider to negotiate as this may occasion a lot of inconvenience
on the ignorant consumer who may not be able for instance to tell that the pre-
packed food is unwholesome or of less weight than indicated on the package.
Public law takes the form of statutes enacted empowering certain government
sponsored bodies or departments to ensure the adherence of such standards of
products or services. The full range of public law measures is very extensive.
The following examples show some of their ambit.

THE TRADE DESCRIPTIONS ACT

The Trade Descriptions Act controls business activities at large in so far as they
involve descriptions of goods or services. Criminal sanctions are provided for
non-compliance.

STANDARDS ACT
Under the Standards Act the Kenya Bureau of Standards is set up to promote
standardization in industrial area to provide facilities for testing instruments
and commodities. The Act provides for the inspection of goods to comply withy
certain specifications to ensure that they conform with the standards specified
by the bureau. The Act makes its an offence to resist the visit of the inspectors
in the discharge of their duties for which sentences or fines or imprisonment
are imposed. The court is given powers to order confiscation of all substandard
goods that often again the provisions of the Act the Bureau investigates
complaints from consumers who purchase unsatisfactory goods and offers
suggestions on improvement of future production.

THE WEIGHT AND MEASURES ACT
The Weight and Measures Act is concerned with the accuracy of weighing and
measuring at the time of sale to the consumer. All weighing and measuring
machines are required to bear a stamp of verification showing that they are
accurate instruments. Inspectors are empowered by the Act to inspect and test
all such machines and ensure they are in correct mechanical condition.
Breaches of prohibition imposed by the Act are punishable as offences. Such
prohibitions are against selling goods that are less than the indicated quantity.
The Act creates an agency in the form of the Weights and Measures
Department in the Ministry of Commerce who9se inspectors are trained all over
the country in the lacuna of legislation is with respect to imported goods. The
Act makes no provisions in relation to import goods and the limited protection
it offers is diluted by this fact.

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THE FOOD DRUGS AND CHEMICAL SUBSTANCES ACT
The Food Drugs and Chemical Substances Act makes provision for the
prevention of adulteration of food, drugs and chemical substances. It is an
offence to sell any food that contains poisonous substances or that is
unwholesome or unfit for human consumption or that is adulterated or that
consists in whole or in part of any filthy, putrid, disgusting, rotten,
decomposed or deceased substances or foreign matter. It also makes it an
offence for any person to sell, prepare, package, convey, store or display for
sale any food under unsanitary conditions. Similar rules apply to drugs and
cosmetics. With respect to cosmetics the Act provides that any person who
sells any cosmetics that contains any substance that may cause injury to the
health of the user is guilty of an offence. Cosmetics and drugs should also not
be prepared, preserved, packed or stored under unsanitary conditions.
Provisions are also made for supervision, entry and inspection to ensure that
the Act is complied with. Penalties are prescribed for those breaching the
provisions.

THE FERTILIZERS AND ANIMAL FOODSTUFFS ACT
The fertilizers and animal foodstuffs Act regulates the importation,
manufacture and sale of agricultural fertilizers and animal foodstuffs and
substances of animal origin intended for the manufacture of such fertilizers
and foodstuffs. It provides among other things that no person shall import any
fertilizer or any foodstuff which contain bone or any other substance derived
from animal carcass unless he furnishes a certificate from the country of the
origin showing that the bone or substance has been completely sterilized and is
free from pathogenic or disease causing organism. All the breaches of the
provisions of the Act are punishable as offences. It makes provisions for
inspection of all relevant stuff and of plants producing such stuff to ensure
that they are wholesome.

THE PUBLIC HEALTH ACT
The Public Health Act makes provisions for securing and maintaining health. It
requires the notification of infectious diseases and enjoins occupants of
buildings to report the existence of such a disease to the health authorities.
The Act makes it an offence for any person to willfully expose himself in a
public place while suffering from such a disease. Persons infected with
venereal diseases are enjoined by the Act to seek medical treatment and not to
take up employment in places selling food or involving the care of young
persons. The Act also requires warnings of risk to be printed in cigarette
packets. Penalties in the form of fines and imprisonment are prescribed. The
Act also makes detailed provisions with regard to leprosy, smallpox, sanitation
of housing, water supplies, meat, milk, mosquitoes and cemeteries etc
prescribing penalties for all such offences.

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THE RESTRICTIVE TRADE PRACTICES, MONOPOLIES AND PRICE
CONTROL ACT

This Act attempts to encourage competition in the market and for that purpose
it controls concentration of government power and mergers and takeovers. It
also controls restrictive trade practices such as price fixing, discriminatory
trade practices, control of output of goods or services, withholding of supply,
market division, territorial restrictions, resale price maintenance, tying
practices for collusive binding, collusive tendering and refusal to deal. The Act
also makes provisions for price control although at the moment there is no
item under the price control provisions of the Act but these provisions have not
been repealed and can be used to buy the government if it desires so.

THE MEDICAL PRACTITIONERS AND DENTISTS ACT
This Act prohibits unqualified persons from practicing medicine by implication
therefore any person who holds himself out as a practitioner may be relied
upon by the consumer as being qualified. If there is any misfeasance by a
medical practitioner the consumer of services received from such a practitioner
can be reported to the Medical Practitioner and the Dentist Board who may
investigate the matter and can take disciplinary action against the
practitioners.

Consumer Protection Law-Lecture 3

Implied terms:
Merchantable quality
Fitness for purpose

Conditions: the seller sells in the course of business.

The seller must sale or supply in the course of business. But other conditions
will apply even in private sales, such as description, sample.

The Trade Descriptions Act requires that the buyer must acquire the goods in a
non-business capacity.
Case of a car hire firms. Used to buy new cars and after two years they used to
sell those cars. Are they selling the course of business? What the House of
Lords said is that you have to consider how often they sell. If they do it
regularly then they are doing it in the course of business.

The Trade Descriptions Act

Sale or supply must be in the course of business or the buyer must acquire the
goods or business in a non-business capacity. Several consumer protection
statutes require that the seller or supplier must sale or supply in the course of
business. For examples the Sales of goods Act provides that the implied
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condition of merchantable quality and fitness for purpose shall be implied in a
context of sale only if the seller sales in the course of his business. Similarly
section of the Trade Descriptions Act provides that the false trade description
applies only where any person applies a false trade description or supplies or
offers to supply any foods in the course of any trade.

Similarly in Britain section 12 of the Unfair Contracts Act 1977 provides a
provision that a party makes the contract in the course of business. [This Act
deals mainly with exclusion clauses. In Kenya there is no statutory law to the
effect and common law is what applies.] It seems plain that they cover not only
a seller making a regular sale of goods in which he deals but a seller who buy
by way of business, manufactures or obtains or sells a commodity for the first
time. This is supported by authority on Sale of Goods Act (deals in goods of
that description). It could then be argued that the purpose of the wording in
this context is to exclude only sales by purely private sellers. It appears that a
farmer who sells off a surplus tractor or a medical practitioner or advocate or
local government department disposing of surplus equipment for example sells
a used typewriter used in the course of business and so attracts the operation
of the statutory term.

In Havering LBC v Stevenson, a car hire firm had a false trade description as to
mileage. Though not car dealers the firm regularly sold its cars after a period of
use, it was held by the divisional court that the sale was in the course of its
trade or business as a car hire firm.

And in Fletcher v Stedmore the defendant was a panel beater who bought,
repaired and sold old cars. A dealer and his prospective customer visited him
and he falsely stated that the car had a little good engine. The panel beater sold
the repaired car to the dealer and he resold it to the customer who was
impressed the panel beaters remarks despite the lack of any contextual
relationship between the eventual buyer and the panel beater, the latter was
directed to be convicted of applying a false trade description in the course of
his trade or business contrary to 11(a) of UK law (section 3(a) of Kenya law).

Also in Davis v Sumner the activities of a self-employed courier whose cars
odometer had gone right round the clock, thus presenting a false reading when
reviewed on his sale of the car. Here he owned the car but in the past he had
hired his vehicles. The House of Lords held that a normal business practice of
buying and disposing of cars had not been established and therefore the
relevant sale was therefore not caught by the provisions in section 11(a)
(section 3 (a) of Kenya Trade Descriptions Act). This decision of the House of
Lords suggests that there must be at least some degree of regularity. Sporadic
sales would not be covered.

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Individual not acting in a business capacity
The standard perception of a consumer is often individual purchaser or
acquirer of goods or services. Generally a consumer is regarded as a non-
business purchaser of goods or services but sometimes it is difficult to decide
when a person acts in a business capacity. In a broad sense, every time a
company enters into a contract it does so in the service of its business because
if it was not the case the transaction would be ultra vires. Thus it could be
argued that where a company, which runs a grocers shop, buys a new delivery
van, it acts in the course of the business. And alternative view is that a
company can be a consumer purchaser where the purchase is not for some
definite business purpose and is one which is not regularly made by that
company.

In a civil case, R & B Customs Brokers Company Ltd United Dominion Trust Ltd,
the plaintiff company was carrying on the business of freight forwarding agency
purchased a car bought for business use and for private use of its director. It
was alleged that the defendant finance company was in the breach of the
implied terms in the Sale of Goods Act that the car would be fit for the purpose
for which it was intended, namely, driving it in English weather conditions
since the roof had leaked.

However, the defendant finance company sought to rely on an exclusion clause
in the contract. Liability for implied terms under the UK Unfair Contract Act
cannot be excluded where the buyer deals as a consumer. The court of appeal
held that since the purchase of the case was only incidental to the business of
a freight forwarding agent the transaction would not be seen as an integral part
of business carried on by the plaintiff as there as no degree of regularity in the
type of purchase concerned.

It therefore follows that the company had purchased as a consumer and the
provisions of the Unfair Contracts Act prevented the exclusion clause from
taking effect. It may be noted that the Unfair Contracts Act is not applicable in
Kenya and the exclusion clauses are still governed in Kenya by the common
law and such exclusion clauses shall be valid unless they are reasonable. Also
under the Sale of Goods Act the parties whose contract of sale of goods can
exclude implied terms under the Act by means of an express contract.
The decision of the court of appeal in R& B Customs Broker Ltd may be
criticized on a number of grounds:

First the interpretation put by the court of appeal of Unfair Contracts Act may
not give effect to the intention of Parliament. The Act distinguishes between a
business purchaser and a consumer and does not require the court to consider
the purpose for which the goods are required.

Second the decision for the ban on the use of exclusion clauses on consumer
protection is that the consumer is weak in terms of bargaining power but the
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same cannot be said of a business consumer particularly a company. Dillan LJ
in R&B Customs Brokers considered obiter that had the purchaser been in the
cause of business the exclusion clause would have satisfied the reasonableness
test because the company was dealing in the course of business. It appears
that this is the true position of law with regard to Kenya.

Third, even if the plaintiff did not contract in the course of the business, there
is a strong argument to the effect that company held itself out as acting in the
course of business since the company made the contract in its corporate name.
When these matters taken together put to a purchase in the course of business
and not one made by a consumer devoid of commercial experience.

The Trade Descriptions Act: The Trade Descriptions Act in Kenya follows
exactly the same The Trade Descriptions Act of UK.

Section 3 of Kenya The Trade Descriptions Act equivalent to section 11 of UK.

Section 4 of Kenya The Trade Descriptions Act equivalent to section 14 (2) of
UK. This is with regard to services.

Section 6 of Kenya The Trade Descriptions Act equivalent to section 14 of UK
(This is in regard to services).

Section 8 of Kenya The Trade Descriptions Act equivalent to section 2 (a) of UK.

Section 9 of Kenya The Trade Descriptions Act equivalent to section 2 of UK.

Section 10 of Kenya The Trade Descriptions Act equivalent to section 4 of UK

Section 11 of Kenya The Trade Descriptions Act equivalent to section 5 of UK.

Section 19 of Kenya The Trade Descriptions Act equivalent to section 24 of UK.
This section is very important: it provides the defenses.


Prohibition of false trade descriptions in relations to goods
It has been recognized that there is a need to protect consumers and honest
traders alike against the misleading practice of falsely describing goods in the
course of trade. The Trade Descriptions Act has created two major offences of
strict liability in relation to goods, namely that of applying false trade
descriptions to goods in the course of trade and supplying or offering to supply
in the course of trade any goods to which a false trade description is applied.
Goods have been defined under section 2 (1) of the Act to include ships and
aircraft, things attached to land and growing crops. Ship has again been
defined to include any boat and any other description of vessel used in
navigation.
Page 16 of 45


Section 3 of the Act creates two offences by providing:

Section 3 any person who in the course of any trade (a) applies a false trade
description to any goods or (b) supplies or offers to supply any goods to which a
false trade description is applied--

shall be guilty of an offence.

First type of offence
This definition has several elements and to understand the provisions in
section 3 it is necessary to analyze a number of points in order:

1. Any person. This includes a limited company. Section 16 special contains
provisions dealing withy offences by corporations making any director,
manager, secretary or other similar officers jointly liable if the offence is proved
to have been committed with their consent or connivance or is attributable to
negligence on their part. Any person may also include a manufacturer, a
wholesaler, and a retailer. It is also possible for a buyer to apply a false
description. In Fletcher v Budgen, a car dealer told a private customer that his
car was irreparable and fit only for a scrap. The dealer then bought it for two
pounds, carried out repairs costing 56 pounds, obtained a test certificate and
advertised it for sale at 135 pounds. The divisional court held that an offence
would be committed by a buyer who applied a false trade description to goods,
for example, fit only for scrap when buying them in the course of his trade or
business.

2. Trade. Trade is defined by section 2 of the Act to include business and
profession.

3. In the course of a trade of business.

4. Applies. The word applies in section 3A is amplified by section 10 of the Act. A
person applies a trade description to goods if he (a) fixes or annexes it to or in
any manner makes it on or incorporate it with (i) the goods themselves or (ii)
anything in, on, or with which the goods are supplied; or (b) places the goods
in, on or with anything with the trade description has been affixed or annexed
to, marked on or incorporated with or places such any such thing with the
goods; or (c) uses the trade description in any manner likely to be taken as
offering to the goods.

In Donnelly v Rowlands a milk retailer sold milk bottles. The foil caps of which
read Untreated milk produced from TT Cows followed by his name and
address. The bottles themselves were marked with the names of various
suppliers to whom the actual bottles belonged. The prosecution appealed from
the magistrate dismissal of the information alleging that he had sold bottles of
Page 17 of 45

milk to which false trade description had been applied. The appeal was also
dismissed by the divisional court. On further appeal it was held that the words
on the cap of the milk bottles were inaccurate trade description and the words
on the milk bottles which could have been false trade description had the
public been misled into thinking that the names thereon had something to do
with the production of milk could only reasonably apply to the ownership of the
bottles. The defendant was therefore saved by the wording on the cap, which
was required by the regulations.


Consumer Protection- Lecture 4

In most cases the trader has quite clearly described the goods and thus applied
a trade description to them. However, the terms applied was given a wider
meaning by the divisional court. In Tarleton Engineering Company v Naffrass a
dealer sold a car with a false odometer reading. He had not altered the
odometer himself. He did not know it was false, nor did he repeat the reading.
It was held he had applied a false trade description to the car.

It is difficult to justify such a wide interpretation of any of the expressions used
in section 10. However, it was possible to bring the prosecution under section 3
(b) on the grounds that the trader had supplied the car with a false trade
description.

Nevertheless, it now seems to be settled beyond doubt that a person applies a
description to goods even in the absence of a written or oral statement if he
fails to take steps to correct a misunderstanding which is induced by a
description borne by the goods themselves. Thus in Davies v Sumner the
defendant applied a false trade description to the car in that he represented
that it had travelled 18,100 miles while the true mileage was 118,100 by
merely standing by and not disclosing the truth.

Supplying goods with a false trade description: Section 3 (b)
The second of the offences contained in section 3 is committed when a person
supplies or offers to supply any goods to which a false trade description is
applied. By virtue of section 2(2) (a) a person exposing goods for supply or
having goods in his possession for supply shall be deemed to offer to supply
them. This section is deliberately widely drafted. It avoids the type of difficulties
found in such cases as Fisher v Bell, where flick knives were displayed in a
shop window. This was held to be an invitation to treat rather than an offer for
sale. Such goods would have been exposed for sale even if the goods to which a
false trade description is applied belong to someone else so that it could not be
said that the seller has in his possession for supply. He still exposes them for
supply. The trade Descriptions Act provides that the position for supply is
proved whether or not the supplier is selling to the public. It may be noted that
the word supply is wider than sale and would seem to cover free gifts, if the
Page 18 of 45

supply is made in the course of trade or business as well as hire and hire
purchase transactions, goods for gift token, and the like.

Knowledge
It appears from Cottee v Douglas Seaton Ltd that a supplier does not commit
this offence if he neither applies the description to the goods himself nor knew
or had means of knowing that this has been done by another. However, where
a supplier knows that a description has been applied even though he does not
know that it is false he is liable; for example, selling a car within inaccurate
odometer. In the above case, dealer A patched up the bodywork of the car,
which he sold to dealer B. The repair was so skillfully done that B did not
discover it. B sold it to C. It was held that B had not committed an offence
under section 1(1)(b) [Section 3(b) of Kenya Act] as he was unaware of the
defect.

Knowledge that a trade description was applied was essential. In short,
knowledge of the existence of the description is a pre-requisite but not the
knowledge of its falsity.

Time of application
No offences are committed under section 3 where the description is applied to
goods after they have been supplied. In Hall v Wickens the division court
upheld the acquittal of a motor dealer who had falsely described a car as not
being in need of repair 40 days after supplying it to a customer. Hence the
description must precede or be contemporaneous with the supply of goods.

Trade descriptions in advertisements
Advertisements tend to generalize so it is necessary to provide a fair test to
enable the court to identify whether a particular advertisement applicable to a
class of goods had applied a false description to particular goods. The Act
provides that the trade description shall be taken as referring to all goods of
the class whether or not in existence at the time the advertisement is published
for the purpose of determining whether an offence under section 3 has been
committed.

Advertisement has been widely defined by section 2 (1) to include a catalogue,
a circular and a price list. But a printed, filmed or broadcast trade description
is not deemed to be made in the course of trade or business unless it forms
part of the advertisement [Section 2(2)(b)]. This provision is designed to prevent
prosecutions founded on descriptions contained in genuine news items.
Page 19 of 45


A false trade description to any goods: sections 8 and 9
The definition of a false trade description is contained in sections 8 and 9 of the
Act. Section 9 says that a false trade description is a trade description, which is
false to a material degree and also includes within the expression clause,
descriptions which though not false are misleading.

Anything likely to be taken for an indication of the methods specified in section
8 though not a trade description which if false is deemed a false trade
description under section 9 (3).

The term trade description is defined comprehensively in section 8 as an
indication direct or indirect and by whatever means given of any of the
following matters:

Section 8 (1) (a): identity, quantity, size or gauge
For the purpose of the Act quantity includes matters such as length, height,
width, area, volume and capacity

Section 8(1) (b): method of manufacture, production, processing or
reconditioning
This clause covers statements to the effect that the consumer goods had been
made or processed in a particular manner such as homegrown or handmade
but whether this provision would apply to a claim that eggs are free range is
possibly doubtful although the word production is broad enough to cover the
matter and in any case either section 8 (1) (e) or (g) might apply .

Section 8(1) (c): Composition
This provision covers statements concerning the material from which an article
is made, for example a statement to the effect that bread is made from whole
meal grain. Similarly a knife is made from Sheffield steel or that the content of
a specified package contains sardines would fall under section 8 (1) ( c).
Similarly a manufacturer who claims to produce vegetable lard (pig fat) also
represents the composition of this product since the word lard without further
qualification denotes the use of pig fat but in Wolkind v Pura Foods Ltd the
description vegetable lard was considered to be the correct description
because the qualification vegetable with the word lard indicates that the
product is made of vegetables and not of pig fat.

Similarly the term composition would include misdescriptions such as
natural mineral water; or a mixture of cotton and linen described as linen, or
artificial silk stockings described as silk.

Page 20 of 45

A more modern case illustrates that composition includes component parts. In
British Gas Corporation v Lubock, a Gas Board brochure stated with regard to
gas cookers for sale that ignition is by hand-held battery torch. This was held
to be a trade description relating to composition of goods and an offence was
committed when a cooker in a modified form was sold without a torch despite a
notice that the specification might be changed without notice. This description
would also be regarded as coming within clause (e) of section 8 (2), any
physical characteristics not included in clauses from (a) to (d) of section 8 (1)

Clause 8 (1) also appears to go further than the ingredients from which the
thing is made and may also include parts missing from the goods intended to
be supplied as a package.

Section (8) (1) (d): Fitness for purpose, strength, performance, behaviour or
accuracy
A description of a commodity such as the methods listed here are all of
qualitative nature which is inevitably likely to produce problems because the
required quality of goods will depend on a range of factors including the price
of the goods. Where a car dealer makes an extravagant statement about the
physical performance of a second hand car section 8(1) (d) may apply.

Also to describe an unroadworthy vehicle as a beautiful, a good little runner or
as having a good engine would appear to amount to the application of the
trade description relating to the quality of its performance. See Robertson v
Dicicco where it was held that the question to consider is what the ordinary
man would place in the words used in the description. This statement appears
remarkably similar to trade puffs, which do not attract liability for
misrepresentation under the law of contract.

Less difficulty has been encountered in respect of objectively quantifiable
statement about the performance. For example a divers watch described as
waterproof is not which fills with water being immersed in a body of water for
an hour, or to describe such a watch when it leaks (See Sherrat v Geralds). Or
to state that a microscope is capable of magnifying up to 455 times when its
maximum useful magnification is 120 times (See Dixons Ltd v Barnett) is to
represent the performance capabilities of the articles to which the description
is applied.

Section 8 (1) (e): Any physical characteristics no included in the preceding
paragraph
In this if anything is omitted from the list of characteristics in section 8 (1) (a)
to 8(1) (d), section 8 (1) (e) provide a safety net in relation to such physical
characteristics. It would appear that the statement relating to component parts
applied to goods supplied such as free gifts or a car to which additional
accessories such as a tool kit or a sun proof is fitted are best explained as
Page 21 of 45

relating to physical characteristics not covered by earlier paragraphs of section
8 (1).

Section 8 (1) (h)
A description of a commodity such as Norfolk King turkey or Havana cigars or
Kitui honey would appear to fall under section 8 (1) (d), but conventional
description arising out of trade uses properly does not. Yorkshire pudding or
Cheddah cheese are not required to be produced only in the area the name
suggests.

This paragraph also covers false statements about the date of manufacture,
e.g. in Ront Ledge v Ariza Motors Ltd, it was held that an offence was committed
under section (1) (section 3 of the Kenya Act). A car registered in 1972 was sold
as a new 1975 model.

Even qualified statement of the age of the vehicle may not be sufficient to
escape liability. Thus it would be unwise for a car dealer to state the
approximate year of manufacture of the car as 1987 when he is not sure how
old the care is (See R v Coventry City Justices ex parte Farrand)


Consumer Law-Lecture 5

Section 8 (1) (e): any physical characteristics not included in the preceding
paragraphs
This is the most frequently involved category of misdescription. The vast
category of cases under this paragraph have been those involving the altering
of car odometers in Macnab v Alexanders of Greenock Ltd it was stated that the
distance which a car has traveled is just as much a part of its history as the
places where it has been and the persons who owned it. The odometer figures
is if accurate a silent historical record previous use.
Section 8 (1) (f): testing by any person and the result thereof
The wording of this paragraph seems to require a statement to the effect that
goods have been tested and that they have passed this test. This paragraph
may not cover that a car has been to an AA test without further indication that
the test has been passed with would probably not be suffiicent. This is
considered to be a defect in the Act and it has been proposed that where there
is a reference to testing it should be presumed in absence of a statement to the
contrary that there is an indication that the test has been passed.
A statement to the effect that a car has a Ministry of Transport certificate
would fall within this paragraph since the granting of certificate is conditional
of the goods satisfying the MOT requirements. In this later event the seller of
the car would be guilty of an offence but the content of the certificate is not to
be taken as trade description applied by the garage providing the certificate
Page 22 of 45

since it clearly states it is not to be relied on (see Corfield v Sevenways Garage
Ltd). In any event the statement is not associated with the supply of the goods.
Section 8 (1) (g): approval by any person or conformity with a type
approved by any person
A statement to the effect that the goods confirms to Kenya Bureau of Standards
specifications or merely display a kite mark, or Ag mark would fall under this
provision. Similarly a claim to the effect that the goods are approved by a
particular body, for example AA or a trade association or trade union could
also suffice . It may also be the case that the use of trade mark of a
manufacturer with national reputation can be said to imply conformity with a
type approved by another person.

False representations of government approval or claims that goods have been
supplied to another person constitute the formation of the offences in their own
right. This paragraph was introduced to get false claims such as that certain
encyclopedia were approved by a well-known educational institution.

Section 8 (1) (h): place or date of manufacture, production, processing or
reconditioning
Section 8 (1) (h)
A description of a commodity such as Norfolk King turkey or Havana cigars or
Kitui honey would appear to fall under section 8 (1) (d), but conventional
description arising out of trade uses properly does not. Yorkshire pudding or
Cheddah cheese are not required to be produced only in the area the name
suggests.

This paragraph also covers false statements about the date of manufacture,
e.g. in Ront Ledge v Ariza Motors Ltd, it was held that an offence was committed
under section (1) (section 3 of the Kenya Act). A car registered in 1972 was sold
as a new 1975 model.

Even qualified statement of the age of the vehicle may not be sufficient to
escape liability. Thus it would be unwise for a car dealer to state the
approximate year of manufacture of the car as 1987 when he is not sure how
old the care is (See R v Coventry City Justices ex parte Farrand).

Section 8 (1) (i): person by whom manufactured, produced, processed or
reconditioned
This covers goods which have been manufactured in the country in which last
underwent a treatment or processing resulting in substantial change. Thus a
Page 23 of 45

trade description is applied where a petrol filling station advertises its products
as Esso petroleum when it is trading in another product. See case of Roberts v
Seven Petroleum Trading Co. In such cases the inference was that the
advertised brand was being supplied. It follows from that where a name is
printed on the goods it indicates that they have been manufactured by the
persons named. It is because of this many suppliers of own brand products
would be in serious difficulties.

Section 8 (1) (j): other history, including previous ownership or use
This covers such descriptions as railway lost property, unclaimed goods at the
port, army surplus goods, one lay-owner and the like. And an indication of a
vehicles age by reference to its date of registration or its suffix letter on a
number plate is covered by this provision.

The majority of cases which have fallen within this paragraph have included
inaccurate odometer reading on motor vehicles. But other matters relate to
past history of the goods made available for supply will also be relevant. For
example, a statement to the effect that the goods are shop-soiled, fire-damaged
or salvaged stock would appear to relate to past history of the goods in
question.

Matters not covered by the section 8 (1)
One of the major problems of the list of prohibited statements is that there
could be circumstances in which a statement may mislead but they do not fall
within any of the stated categories of trade description. For example, a
statement to the effect worth a particular amount or represent extra value
cannot amount to a trade description. In Cadbury Ltd v Halliday it was held
that Cadbury chocolate supplied represent extra value could amount to a
description as the assertion was not factual and therefore incapable of precise
ascertainment.

However, it is arguable that a reasonable person might regard a statement
such as extra value as implying extra chocolate for the same price and might
therefore fall within section 8 (1) (a) because it is a statement relating to
quantity. Others that might not be covered under section 8 (1) which may give
a misleading impression include indications of the identity of the supplier or
distributor of goods. A statement concerning the commercial standing of the
manufacturer, supplier or distributor of goods such as ability to provide and
after-sales service and a false statement about the content printed and
recorded material.

Implied trade description
Page 24 of 45

The Trade Descriptions Act provides that a statement in respect of one of the
listed matters may be made directly or indirectly but this still requires an
express written or oral statement to how they made the goods to which the
description applies. It would appear that in addition to express statement a
trade description may also be implied from the conduct of the defendant.
Support for this view can be gleaned from the Act itself which extends the
definition of a trade description to include anything likely to be taken at
indication of a matter listed in section 8(1). The fact that there may be liability
for an implied trade description is gathered from a number of falsified
odometer reading cases. In a number of these cases there was a strictly no
express statement but the court had no difficulty in applying he provisions of
the Act to them. Similarly cars may be repaired in such a way that they tell a
lie about themselves. However this principle cannot be taken too far. It follows
from this that there must be a positive statement on the part of the defendant
in order to give rise to a liability under the Act. However, it will appear to be the
case that a person can give an indirect indication of a matter listed in section
8(1)(a).

Falsity
By virtue of section 9 of the Trade Descriptions Act a false trade description is
one which is false to a material degree. This definition is based on the
requirement that the description must be of such substance that it is capable
of inducing a purchaser. Thus a statement which amounts to nothing more
than a trade puff will not be treated as a false trade description on the basis
that such a statement is not capable of inducing a purchaser (See Cadbury Ltd
v Halliday). Where a statement is capable of verification it will attract liability
only if it is false to a material degree. This suggests that a statement can be
technically false; it is not likely to mislead anyone hence no offence is
committed (See Donnelly v Rowlands).

A statement may also be false to a material degree not by virtue of what it says
but by virtue of what it leaves out. For example to describe a motor vehicle
manufactured in 1972 but registered in 1975 as new 1975 model is materially
false since an average person would take the description to mean that the
vehicle was manufactured in 1975 (Routledge v Anza Motors Ltd). However to
call a car new when it suffered superficial damage which have been repaired
using new part does not amount to commission of an offence (R v Ford Motors
Ltd).

It is clear from these cases that whether or not a description will be held to be
false to a material degree will depend on the context in which the words are
used. For example, if what has been done to a new car is likely to diminish it
value the description new may be regarded as false. Similarly the language
used by the defendant will also matter. For example, one word taken on its own
Page 25 of 45

may be materially false but if it is qualified by other words it may become
accurate. For example, the word lard implies the presence of pig fat but the
words vegetable lard implies a different commodity when the statement on
the packaging is that 100 percent vegetable oil is used (See Wolkind v Pura
Foods Ltd).

False descriptions relating to services
Section 6 of the Trade Descriptions Act lays down provisions to control
statements about services, accommodation, or facilities provided by any
person in the course of any trade. It may be noted that a consumer is just as
much concerned with the quality of the services as with the quality and safety
of the goods which he acquires. In some cases the purchaser of many
consumer goods will also involve making arrangements for services in the form
of maintenance agreements. The term services, accommodation or facilities are
not defined under the Act. However, section 6 (3) states that in relation to any
services consisting of or including the application of any treatment or process
or the carrying out of any pairs the matters specified in section 6(1) shall be
taken to include the effect of the treatment, process or repair. There has been
some doubt in the UK whether professional services are included under the Act
but in R v Breeze it was held that professional services are covered by the Act.
However, this problem does not arise in relation to Kenya because section 2 (1)
defines trade to include any business and profession. Here again the oral as
well as written statements are included.

However, although a statement made after the supply of goods have been
complete is not an offence under section 3. Section 6 has a wide application. In
Breed v Cluett a builder built a bungalow, sold it and afterwards falsely stated
that it was covered by 10 years guarantee by a particular organization. The
divisional court held that this was a statement as to the provision of services
within section 14 of UK Act (section 6 of the Kenya Act).

The distinction between this case and Hall v Wickens under section 3 is that
the provision of services may involve continuing obligation and had there been
a guarantee that builder could have been called upon to provide the services
during the guarantee period. This connection between the supply of services
and the defendants statement was emphasized by the court of appeal in R v
Bevelectric Ltd, etc. The three defendants were a company carrying on a
washing machine repair business, a director and an employer. The statement
that motors needed to be replaced implied that a genuine assessment had been
made on the extent of any necessary repairs. They argued that the word
provided in section 40 (1) (b) (iii) (Section 6. They argued that the word
provided in section 40 (1) (b) (iii) (Section 6 (1) (b) (ii) of Kenya) covered
statement as to services which traders were offering to supply or when on the
course of supply but not those which had been provided in the past. The court
Page 26 of 45

of appeal disagreed with their argument and upheld their conviction on the
ground that a false statement about services already provided is within the
section if it was connected or associated with the supply of the services in
question.

Conditions of application of section 6
Not all misdescriptions of services are covered by the provisions of the Trade
Descriptions Act since there is a detailed list of matters in respect of which an
offence may be committed. Furthermore there is a mens rea requirement as to
the facts of the offence created. This matter apart, section 6 provide that it is
an offence for any person acting in the course of a trade of business to make a
prohibited statement. It follows that as in the case of section 3 an offence may
be committed by any person whether he be the supplier of services or not
provided he acts in the course of trade. Thus an offence may be committed buy
someone who is not the supplier but has an interest in the outcome of the
transaction entered by the customer. In Britain, a question arose whether a
trade includes he activities of the profession for the purpose of section 14 of
the UK Act.

In R v Breeze it has been held that section 14 (section 6 of Kenya) was capable
of applying to false statements concerning qualifications since such indication
is likely to be taken to refer to the quality of services provided.

For the purposes of section 6 a statement must have been made . One obvious
example of making a statement arises when a statement is made by another
person. It is possible for a statement to be made without it being
communicated to another. For example a statement is made when it is
published in brochures which are posted in bulk to travel agents, when the
message is passed by telephone, when the information is pushed to clients,
and when the information is relayed by the persons to whom it is
communicated.

Section 6 is not concerned with the statement that induces a contract; it does
not matter that an offending statement is made after the conclusion of he
relevant contract. Thus a mechanic who makes a false statement about the
work he has carried out on his clients car may still be treated as an offence
under section 6 where he has already paid for the work done.


Consumer Protection- Lecture 6
It is clear from section 6(1) of the Act that the knowledge of the falsity of a
statement or recklessness in making the statement are alternative
requirements. Section 6 (1) provides that it shall be an offence for any person
in any course of trade
Page 27 of 45

(a) to make a statement which he knows to be false or
(b) recklessly to make a statement which is false.

Knowledge of the falsity of a statement
At first sight the wording used in section 6(1) (a) would appear to suggest that
it is a mens rea offence. However, the House of Lords in Wings Ltd v Ellis have
analyzed section 14 of the UK Act for Lord Scarman the basic issues between
the parties was whether proper construction of section 14 (a) where the
defendant had no knowledge of the falsity of the statement at the time of its
publication but knew of the falsity and at the time when the statement was
made by the complainant. The facts of this case were as follows: for 1981-82
winter season the appellant tour operator had distributed to travel agent a
brochure giving details of accommodation provided for customers. Shortly
after, the brochure was distributed . The tour operator discovered that the
brochure contained a statement which was false to a material degree, namely
that the accommodation provided in a hotel in Sri Lanka was with air
conditioning. In May 1981 the mistake was discovered and steps were taken to
mitigate its effects but W had booked a holiday in January 1982 depending on
an amended brochure. At that time he read the brochure that tour operators
were aware that the statement was false. The House of Lords unanimously
upheld the prosecutors appeal against the divisional court which had
quashed the original conviction of the tour operators. The brochure was
inaccurate and the respondent knew that it was inaccurate and therefore W
was misled. The ingredient for an offence under section 14 of the Act were thus
compounded in view of the House of Lords to hold otherwise would be to
emasculate section 14 and to placed a premium on carelessness by the
respondent. It was pointed out that although the tour operators never
intended to make a false statement to W an offence has been committed under
section 14.
The tour operator had not attempted to put forward a defence under section 24
(section 19 of the Kenya Act) which might otherwise would have been available
that the commission of the offence was due to a mistake and all reasonable
precautions and due diligence had been exercised to prevent the commission
of the offence.
Lord Branden in a concurring speech added that he would have regarded the
false statement about air conditioning contained in the respondent brochure as
having been a continuing false statement, that is as false statement which
continue to be made so long as such brochure was in circulation without
effective correction. Form this decision it appears that the House of Lords in
this case held that the offence created under section 14 (section 6 of the
Kenya Act) is in fact one of semi-strict liability.
Recklessly
Page 28 of 45

Another distinction between this offence and section 3 offences is that sections
6 also requires that the person makes the false statement recklessly. A reckless
statement is defined by section 6 (2) (b) as a statement made regardless of the
whether it is true or false and whether or not the person making it had reason
for believing that it might be false.

Lord Parker CJ in Sunair Holidays Ltd v Dodd stated obiter that the Act
imported the common law definition of reckless. In this case travel agents in
their brochure described accommodation at a hotel as twin-bedded rooms with
private bath, shower, WC, and terrace.. They had a contract with the hotel to
provide such accommodation. Two persons booked a holiday with them on this
basis but on arrival were given rooms without terraces. It was held by the
divisional court that no offence had been committed. At the time the statement
was made the accommodation existed and the statement was perfectly true.
Nothing which happen afterwards would alter the accuracy of the description
when it was made. Further the definition of reckless does not include
negligence.

However a different view was taken by the divisional court in MFI Warehouses v
Nattrass. Here a mail order company advertised goods for 14 days free approval
and carriage free. These offers were intended to cover only some of the goods
in the advertisement but appeared to relate to all of them. The companys
conviction for recklessly making the false statement as to the provision of
facilities was upheld on appeal. The court considered that the chairman of the
company had given insufficient care to his perusal of the advertisement so
that the company had been reckless as to its content.
While this case to an extent throws doubt on the dictum of Lord Parker and
appears to give a wide meaning to the words recklessly and the point of Sunair
Holidays Ltd still stands. No offence is committed merely because the trader
fails to provide services with the description provided that the services or
accommodation existed when the statement was made and provided that he
then had intended on providing them.
When a statement is made
A question to be answered in Wings Ltd v Ellis was what was meant by the
word make statement. In section14 (1) [Section 6 (1) of the Kenya Act] the
question is particularly6 important in relation to brochures issued by tour
operators and others where many may be published and read by different
members of the public or a period of many months. Other statements in the
brochure made when the brochure is published or read by the members of the
public .In R v Thomson Holidays Ltd the court of appeal decided that a
statement is made only when communicated to someone. For example by
reading although approving the decision in Thomson as correct, the House of
Lords has not accepted the court of appeals reasoning. A statement may be
made although not communicated to anyone.
Page 29 of 45


Future Services
A decision showing that promises about provision of services in future are not
caught by section 6. In Beckett v Cohen a builder agreed to build for the
customer a garage like his neighbours within ten days and did not do so. The
divisional court upheld the magistrates court dismissal of information. This
was a statement made in regard to the future. The Act could not be used to
make a breach of contract into criminal offence.

As the law now stands careful analysis is required of the relevant statement to
a ascertain whether their promises in the nature of forecaster or whether the
statement although relating to services to be performed in future also
contained a statement of existing facts.

This interpretation of the section erodes very substantially the protection
afforded to consumers. Even so if the accommodation is advertised which at
the time of the publication of the holiday brochure does not exist then the
offence can be committed.

In R v Clarkson Holidays Ltd a brochure stated that Clarkson hotels were were
chosen for their cleanliness, good food, and efficiency of service ad included a
picture of a large modern hotel with swimming pool. This turned out to be an
artists impression. The hotel which was still in the course of construction was
not finished by the time the holiday makers arrived and was never intended to
be ready by then. According an offence had been committed under the Act.
Similarly in British Airways Board v Taylor a prospective passenger was
booked by BOAC on a flight to Bermuda and a letter confirming the
reservation had been received. BOAC in common with many other airlines
operated an overbooking policy usually on correct assumption that some
passengers will fail to arrive at the4 airport but not seat was available for the
prospective passenger when he arrived at the airport. The House of Lords held
that the statement in the letter was false within section 16 [section 6 (2) of the
Kenya Act] and in particular it was stated that the facts illustrated the
assumption of existing facts and a promise of future conduct may both be
found in one and the same statement. The factual statement here was that
booking would be confirmed when the booking policy made it impossible to do
this. However4, the appeal was allowed in the airlines favour on the technical
ground that the British Airways were not criminally liable for the act of the
former BOAC.

Facilities and prices
Page 30 of 45

Section 4 of the Trade Descriptions Act was concerned only with the price of
the goods. Under section 4 false or misleading indication as to price has been
made an offence. However, there is no provision under the Act in relation to
false or misleading indications as to price at which services are offered. In the
UK this gap has been filled by section 200 of the Consumer Protection Act 1987
which covers goods, services, accommodation or facilities. However, before that
attempts were made to increase the price of services into section 14 [section 6
(2) of the Kenya Act] by a broad interpretation of the word facilities in section 6.
A number of decisions of the divisional court show that the provision is to be
construed strictly. In Newell v Hicks, it was pointed out that although the word
facility is used widely in commercial circles to describe almost anything
available commercially. When the word appears in a criminal stature it was
wrong to stretch its meaning in that way.

In Newell, motor dealers advertised a video cassette recorder absolutely free
with every registration of Renault car ordered within a specified period. The
trade-in allowance of old vehicles however was reduced where customers
wished to take up the offer. The divisional court held that the statement fell
outside section 14 [section 6 of Kenya] because:
(i) the offer of a free recorder was a statement about the supply of goods; and
(ii) section 14 (1) did not cover a false statement about the price at which
services or facilities were provided.
Yet this case is not authority for the proposition that section 6 has no
application merely because the suppliers statement relates to an ancilliary to
goods. Thus in Bambury v Hounslow it has been held to cover a three-month
guarantee of a second-hand car; also a statement in Kinchin v Aston Park
Scooters that the purchaser of a moped would receive a years insurance.

Defences
Section 19 of the Act [equivalent to section 24 of the UK Act]:
i) a mistake: applies to the person charged
ii) reliance on information supplied by another person: useful for a retailer.
iii) act or default of another person
Tesco Supermarket Ltd v Natrass
There was a chain of supermarkets in the UK. In one branch there was a notice
that prices had been reduced placed outside the supermarket. But the prices
paid for items were higher than those advertised. The supermarket was
charged of false price indication. The offence was committed by the branch
manager but not the director. In criminal liability of corporations the company
could be held liable. The branch manager is not the company and the
company could not held liable. The defendant must have exercised the
necessary care and due diligence.
iv) Accident: defendant claim that offence occurred due to accident
v) Some other cause beyond. Unavoidable circumstances his control.
Page 31 of 45


The liability for offenses under section 3 is strict where the offence under
section under section 6 is committed if the trader knows the statement to be
false and makes it recklessly.

However, certain defences are available. Section 19 (1) applies to both types of
offenses and section 19 (3) assist only in cases of prosecution under section 3
(b). Section 20 is confined to innocent publication of advertisements.

The general defense
The defense provided by section 19 (1) may be used by the defendant when
charged with the offense under section 6 in relation to services or under
section 3 (a) for supplying goods with false trade description. However, the
court of appeal decided in R v Southwood that it is not available in respect of
charge under section 3 (a) where the defendant applied the description himself.
This case is concerned with false odometer. It was pointed out by Lord Lane
CJ: By his initial actions in falsifying the instrument he has not taken any
precautions let alone any reasonable precautions.

Section 19 (1) provides as follows: Any proceedings for an offence under this
Act save as here in the Act provided be a defense for a person charged to prove:
(a)that the commission of the offence was due to a mistake or reliance to
information supplied to him or to the act or default of another person or to an
accident or other cause beyond his control. It may be split into five defences.
The defendant must prove that the commission of the offence was due to any
one of the following causes:
i) a mistake
As far as mistake is concerned this is available only where the mistake is made
by the defendant himself. It cannot be used where someone elses mistake is
involved; for example an employer pleading the mistake of an employee. See
Birkenhead & District Cooperative Society v Roberts.

ii) Reliance on information supplied to him
This defence can be taken most of the time by the retailer who generally relies
on the information supplied to him by the manufacturers.

Assignment
1. Discuss how the Standards Act protects the consumer. Also examine the
Kenya Bureau of Standards in the protection of the consumer; or

2. Discuss the provisions of the Weights and Measures Act relating to the
protection of the consumer. Also examine the role the Weights and Measures
Act department.

Page 32 of 45

Due the week before exams.

Consumer Protection-Lecture 7

2. Reliance on information supplied to him

In case of odometer readings the seller may rely on the information supplied to
him by the previous owner.

3. Act or default of another person
The defence most frequently relied upon is that the offence was due to the act
or default of another person, for example, an odometer was run back by the
previous owner. When the employer is charged he may rely on the default of his
employee. When the Act first came into force it was thought that the defence
could only be used where the employee was in a junior position but it appears
to have been quickly settled that even where the person was a branch manager
the defense is still available. However, when the employer is a company it is
necessary to distinguish between those employees or officers who are the
directing mind and will of the company where their defaults are the defaults of
the company and those employees who are thus not identified with the
company then the company can claim their defaults as those of another
person. In Tesco Supermarkets Ltd v Nattrass, the House of Lords discussed the
difficulties in cases where a corporation is charged for criminal offences. In this
case the supermarket at one of their branches outside the supermarket
advertised for a particular type of soap powder at reduced price. However, the
supermarket had ran out of the reduced packs and when a customer bought a
pack he was charged the full price for the pack.

The House of Lords held that where a person charged is a limited liability
company the only person who can be identified with the controlling mind and
will of the company are the board of directors, the managing director and any
other superior officer to whom the board has delegated full discretion to act
independently from the board. Thus though the general manager may be the
companys directing mind and will but the supermarket branch manager was
not accordingly since the offence was caused by the failure on the part of the
branch manager to ensure that sufficient packs at reduced price were available
Tesco were able to rely on his default. In other words the House of Lords held
that a branch manager of a large company was another person it being not
possible to identify him as the directing mind and will of the company. Only
senior members of the company could be so regarded. It has been argued that
this decision has undermined the purpose of the Act. However in MacGuirre v
Sitting Bourne Cooperative Society it was pointed out that the defence was not
available unless all reasonable inquries had been made to try to establish that
actual person responsible for the offence and that it was not sufficient simply
to produce a list of all the staff who might have been responsible. Further, to
rely on this defence section 19(2) requires the defendant at least seven clear
Page 33 of 45

days before the hearing to serve on the prosecutor a written notice giving such
information identifying the person.

4. An accident
The defendant may rely o the defense of accident when he can prove that the
cause of the offence was an accident.

5. Some cause beyond his control
If the crime has been committed because of some cause or circumstances
beyond the control of the defendant he can rely on this defence.

These differences are available under section 19(1 (a). But he still has to prove
under section 19 (1) (b) that he took all the precautions and exercised all due
diligence.

Due diligence defence
It is not enough for the defendant to prove one of the five defences in section
19(1) (a). He must also prove that he falls within what is now popularly known
as due diligence defence, namely that he took all reasonable precautions and
exercised all due diligence to avoid the commission of such an offence by
himself or in any other person under his control. The case law would seem to
sup-port the preposition that to avail himself of this part of the defence the
accused must show that he had set up a system of designed to prevent the
errors and that the system was adequately operated. These factors have
generally been considered by the courts in relation to the default defence
particularly with regard to its application in the areas of vicarious liability,
odometers and sampling.

Vicarious liability
When an employer is charged with an offence because of the conduct of an
employee and endeavours to rid himself of this vicarious liability by showing
that the offence was due to the act or default of the employee broadly the
employer will be acquitted if he can show that he is personally blameless.
Obviously when this defense is used, somebody is to blame. The question is
whether the offence had occurred in spite of the precautions and diligence of
the employer. In Tesco Supermarkets the House of Lords rejected the argument
that the employer has to show that he and all other persons to whom he has
delegated responsibility are blameless. The company was held to have satisfied
the requirements of reasonable precautions and due diligence under section 19
(1) (b) by having a chain of command with a careful system of control and
supervision even though one of the cog in this machine , the branch manager
of the supermarket, had failed to carry out his responsibilities properly.
Page 34 of 45


Odometres
The second area where due diligence defence is of special significance relates to
false odometer readings. Sometimes a car dealer honestly supplies a vehicle
with an odometer which unknown to him had been tempered with by an earlier
owner. Assuming that he can prove that the offence was due to reliance on
information supplied or the default of another person, the question arises
whether he can also prove that he took precautions and was diligent. This
normally involves checking which the person from whom he bought the vehicle
and if he has the registration document with the previous owners to verify the
mileage. However, in Neish v Gore the divisional court said that it was
impossible to lay down as a general rule that a dealer selling a second-hand car
must have the log book and check with the previous owners. In that case the
defence was available to a dealer who bought from somebody with whom he
had been dong business for years and resold the car before receiving the log
book from the seller.

Sampling
Where the suppliers dealing with large quantities of goods and relying on
sampling to show that they had been taking reasonable precautions and with
due diligence. In Rotherham Metropolitan BC v Raysun(UK) Ltd, the defendants ,
large-scale importers of Far East products imported once a year 100,000
packets of childrens wax crayons from Hong Kong. Their agents in Hong Kong
had samples analysed and had to send back only adverse reports but none of
such reports were received. The defendants tested in England a single packet.
They sold crayons as poisonless. The black crayons contained excessive
amounts of toxic materials. The divisional court rejected their defense under
section 24 (1) [section 19(1) of Kenyan Act]. They had not checked that the
Hong Kong analysis were in fact taking place and their sample in England was
very moderate, thus they have not taken the reasonable precautions and there
was no diligency on their part.

Suppliers defence
In Naish v Gore the dealer also relied on the defence in section24 (3)[section 19
(3) of the Kenyan Act] this is confined to the offence of supplying goods with a
false trade description under section 3 (b). the defences in any proceedings
for an offence under this Act for supplying or failing to supply goods to which a
false trade description is applied it shall be a defence for the person charged to
prove that he did not know and could not with reasonable diligence have a
Page 35 of 45

ascertained that the goods did not conform to the description or that the
description had been applied to the goods.

The comment made earlier with regard to due diligence in section 19 (1) appear
relevant here as the use of the adjective reasonable rather than due is not
intended to affect or reduce the standard of diligence. For example in
Simmons v Ravenhill another odometer case the defence failed because in view
of low mileage of 19,000 km the dealer should have made inquiries with the
previous owner. The divisional court stated however generally it would be
unreasonable to expect a dealer to check with all the previous owners.

By-pass provision
Although the so-called by-pass provision in section 18 of the Kenyan Act is not
a defence, it is appropriate to deal with it at this point in view of its close
interaction with the defence in section 19 (1). Section 18 states where the
commission by any person of an offence under this Act is due to an act or
default of another person that other person shall be guilty of the offence and a
person may be charged and convicted of the offence by virtue of this section
whether or not proceedings are taken against the first person.

Thus this section enables a prosecution to be brought against a person whose
act of default has caused another person to commit an offence even if the other
person has not been prosecuted. Thus where A commits an offence but the
real culprit is B, B may be prosecuted for the offence committed by A , it is
irrelevant whether or not proceedings have been taken against A. The corollary
is that if no offence is committed by A, B cannot be prosecuted under this
section. In Coupe v Guyett it was suggested that section 23 (section 18)and
section 24 (section 19) could be fitted together where the first person referred
to in section 18 has a defence or merit and without reliance on section 19 it is
not possible to operate section 19 so as to render guilty the person whose act
or default gave rise to the matter in the compliant. It was argued in that case
that section 18 comes into play only where the first person escape prosecution
by taking advantage of the due diligence defence under section 19.

Innocent publication of advertisements
Section I (b) of the TDA upholds a special defence in case of advertisements.
In a proceedings for an offence relating to the publication of advertisement the
defendant is free from liability if he can prove that
a) the advertisement was received and published in the course of a business
involving such publication
b) he did not know and had no reason to know that the publication would
amount to an offence under the Act
Page 36 of 45


The defence protects not only the publishers themselves, for example of
newspapers and magazines but also those who arrange for the publication of
advertisements.

Consumer protection in relation to services under the private law
The role of private law in protecting the consumer in service sector
Services encompass a wide variety of activities. They are as diverse as laundry,
dry cleaning, furniture removal, home improvements, education services, car
maintenance and repairing, banking and insurance services and professional
services. The service sector of the economy has expanded enormously during
the 20
th
century and the range of services offered to the public is extremely
varied and it is sometimes said that the modern economy has become a service
economy and perhaps more than half of output is generated by the service
sector. The service sector is covered by the law of contract and the law of tort.

Terms implied in a service contract by the court where there is a contract in
place certain terms may be implied or inferred by the judges to reinforce the
language of the parties and realize their manifest intention. In Sameuls v
Davies the plaintiff was a dentist who agreed with the defendant to make a set
of false teeth for the defendants wife. The teeth were made and delivered but
the defendant refused to pay for them on the ground that they were so
unsatisfactory that his wife could not use them. There was a controversy as to
whether it was a contract for the sale of goods or for work and materials.

The controversy was as to whether the contract was for the sale of goods or for
supply of work and materials but the court of appeal held that in the
circumstances of the case the question was irrelevant if it was a contract for
the supply of materials and goods the provision of the Sales of Goods Act
applies and if it is a contract of provision of services then they would import
into the contract a term that the teeth would be reasonably fit for the
purposes. The courts have also imported into contractual transactions for a
lease of house that it shall be reasonably fit for habitation and the date fixed
for the beginning of tenancy in Smith v Marrable it was held that if the house
was invested with bugs or if the drainage was defective or a formal occupant
suffering from TB the tenant would be entitled to repudiate the contract and
recover damages.



Consumer Protection-Lecture 8 18
th
June
05

Page 37 of 45

Private Law measures to protect consumer in service sector

In Reed v Dean the Plaintiff hired the defendants motor launch for a holiday on
a river two hours after he had set out the launch caught fire, the fire fighter
was out of order and the Plaintiff suffered personal injuries and lost all his
belongings. The defendant was held liable for his failure to make the launch as
fit for purposes of hiring as reasonable care would make it.

Sometimes the court may impose on parties a term which is reasonable in the
circumstances. In Liverpool City Council v Irwin the defendants were tenants
on the 9
th
floor of a 15 floor tower block owned by the Plaintiffs. There was no
formal tenancy agreement. There was a list of tenants obligations prepared by
the landlord and signed by the tenants. There was no express undertaking of
any kind by the landlord. Owing to vandalism the amenities of the block were
seriously impaired so that the lifts were regularly out of action. The stairs were
unlit and the rubbish shutes did not work. The defendant withheld payment of
rent alleging that the plaintiffs were in breach of implied term of conflict of
tenancy. But the House of Lords rejected this argument. It was necessary to
consider what obligations the nature of contract itself implicitly requires and
since it was not possible to live in such buildings without access to the stairs
and the provisions of a lift service, it was necessary to imply some terms as to
these matters. On the other hand it was not proper to imply an absolute
obligation on the landlord to maintain these services.

Absolute obligation on the landlord to maintain these services, it was sufficient
to imply an obligation on the landlord to take reasonable care to maintain
common paths in a state of reasonable repairs. However in this particular case
it was not shown that the landlords were in breach of that implied term.
Similarly in McIntyre v Gallagher G was a plumber who had been employed to
carry out plumbing work in a row of tenements. This included the sealing off of
some pipes. One of the pipes was not properly sealed which after sometimes
leaked causing damage to the property on the lower floors for which the
landlord was liable. Evidence proved that the proper and workmanlike method
of sealing the pipe was to solder it. In this case G or one of his workmen had
only hammered the end of the lead pipe together which eventually leaked. He
was thus held liable for failing to carry out the job with requisite level of his
skill.

In Brett v Williamson a building contract was arranged on either a fixed price
basis or as in this case on time and lime basis. The problem resulting from the
unsatisfactory workmanship are particularly difficult to resolve in this case the
plaintiff had undertaken to lay terrazzo tiles and having done so in a manner
which the defendant regarded as unsatisfactory was obliged to bring an action
for payment. It was argued by the Plaintiff that since such tile laying was a
specialist job but had been entrusted by the defendant to him who did not
claim to be a specialist, he could not complain that the work was not up to the
Page 38 of 45

standard of a specialist. It was held that the standard of care required was
that of the type of practitioner which the client believed he was dealing with
but in Dickson v The Hygienic Institute it was said that a contractor need attain
only the skill he professes.

In Mackintosh v Nelson Brett v Williamson case was applied to slightly different
circumstances where P claimed damages for loss sustained when seriously
defective work was carried out at her house. The defendant had been an art
teacher for several years before going into business on his own account as an
industrial cleaning contractor who also undertook window cleaning, external
paint work and large scale gardening. The plaintiff had admired a sun lounge
which the defendant had built at his own home and inquired whether he could
build similar work at her house. It was clear from the evidence that the
defendant held himself out as capable both of drawing the necessary plans and
carrying out the building work in a workman like manner. The defendant
argued that in the circumstances he should be held to the standard of an
amateur builder. It was held that where one who was not a tradesman and
contracts to do work for another, he must be held to have professed the
requisite skill to do the job which he had undertaken.

A different aspect of the problem of the standard of the work arises where the
issue is not the competence which the tradesman professes but the advice or
warnings which he gives to his customers before carrying out the job. In Terret
v Murphy the owner of a furniture shop engaged the plaintiff to paint an
extension to his shop. He was eager to have the work completed and when the
painter reported that the supplies of the primer that he wished to use would
not be available for several days, he persuaded the painter to carry on with the
job. This was done despite warnings from the painter that the absence of the
primer could result in problems later on. Problems did arise and the owner of
the shop withheld payment. Finding in favour of the Plaintiff it was pointed
out by the court that if a house owner merely asks a job to be done then the
contractor would be liable if he did not draw attention to a particular risk but
despite an earlier warning from the painter that the work should be executed in
a particular manner and the house owner instructs to proceed in a different
manner, in that case the house owner is not entitled to say that the warning
was not loud enough or that he did not appreciate the full measure of the risk.

Consumer services may be provided pursuant to a contract or independently of
any such contract. For example no contract exists between a hospital which is
providing charitable medical services and the patient. However, in such cases
also the provider of the services nonetheless owes a duty to take reasonable
care of the consumer. This means that a person is responsible for exercising
his skill in trade or profession and the lack of such skill will be regarded as a
breach of implied term under the contract if a contract is in place or breach of
duty of care to take reasonable care under the law of Tort. Thus in
Page 39 of 45

professional services the professional person must do his job with reasonable
skill and care.

In Hunter v Hanley it was said by Lord Clyde that where the conduct of a
doctor or indeed of any professional man is concerned, the circumstances are
not so precise and clear-cut as in the normal case. In the realm of diagnosis
and treatment there is ample scope of genuine difference of opinion and one
man clearly is not negligent merely because his conclusions differ from that of
the other professional man nor because he has displayed less skill or
knowledge than others would have shown. The true test of establishing
negligence in diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no other doctor of ordinary skill
would be guilty of if acting with ordinary care.

This has been interpreted to mean that if any other professional can be found
to agree with actions of the doctor or other professional feel there is no
negligence under the law of tort. However a close reading of this case suggests
that this is going too far and the test propounded by McNair J. in Bolam v
Friern Hospital Management Committee correctly provided the test when he said
of the standard required of a doctor that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that particular art. The
test is of ordinary competent men in that profession.

This view certainly seems to be consistent with other professional negligence
cases. A professional person does not give an absolute undertaking to achieve
a particular result that would be inappropriate in most cases of professional
services a doctor in the nature of things cannot undertake to cure his patients
and a lawyer can give no guarantee to a client that he will win his case. In
Eyre v Measday Mr and Mrs Eyre decided that they did not wish to have any
more children and consulted the defendant a gynaecologist to discuss the
sterilisation of Mrs Eyre. The Defendant explained the nature of the operation
and emphasised that it was irreversible and must be regarded as a permanent
procedure. He did not explain that there was a small risk of failure. The Eyres
believed that the result of the operation would be to render Mrs Eyre incapable
of having further children. However, after the operation Mrs Eyre did become
pregnant and had another child. She sued the gynaecologist alleging amongst
other things that there was an implied term that she would be rendered sterile
by the operation. It was held that the Defendant had undertaken to carry out a
particular type of operation rather than to render Mrs Eyre completely sterile
and that his statement that the operation was irreversible was not an express
guarantee that the operation was bound to achieve its objectives.

A case involving professional services which does show that a standard higher
than that of due skill and care can be expected in certain circumstances is
Green & Co. (Contractors) Ltd v Bayhnam v Meikle & Partners the Plaintiffs who
were building contractors had agreed to design and build a warehouse for a
Page 40 of 45

customer. They employed the defendants who were Structural Engineers to
design the warehouse and advice them that it was essential that it should be
capable of permitting materials to be moved around on fork lift trucks. Shortly
after the warehouse was handed over to the customer the floor began to crack
as a result of vibrations caused by the forklift trucks. The Plaintiffs accepted
that they were liable to the customers and brought this action to recover by
way of indemnity from the Structural Engineers the cost of repairs to the
building. It was held that on the facts as proved in this case there was a term
to be implied into the contract that the engineers who designed the building
that would be fit for the purpose which the plaintiff had stipulated.

TIME FOR PERFORMANCE:

A major source of complaints from consumers is failure of contractor to
complete a job in good time or sometimes to complete it at all. There are those
cases where the days of commencement or completion of the work has been
agreed between the parties and subsequently ignored by the contractor. The
other is where no time has been agreed for the completion of the work but the
consumer thinks that the contractor has taken unreasonably long time to
complete the work. The contract may specify the time by which the service is
to be completed. This is subject to the provision that the contractor will not be
liable for failure to comply with the time limit if his failure to do so is the fault
of the client. In T & R Duncanson v The Scottish County Investment Co. where a
plasterer was unable to complete his agreed task because the client had failed
to ensure that the other tradesmen completion of whose work was necessary to
allow him to start had kept to the schedules. If there is no complication such
as that as in this case, the question is whether the time is of essence. There is
no problem where the contract explicitly says that the time is of the essence. It
should not be necessary to use the particular formula that time is to be of the
essence. Any verse that clearly indicates that this is the case should suffice.

The problem is more difficult where the contract does not have such a
provision, time will be assumed to be of the essence. In a commercial contract
it is probably not the case that the consumer contracts will fall into this
category. However if there is no express term about time, a consumer is
entitled to expect that a job will be completed within a reasonable time. In
Davidson v Guardian Royal Exchange Assurance a case involving delay in
repairing a car where it was held that repairs must be completed within a
reasonable time. Similarly in Charnock v Liverpool Corporation Cs car had
been damaged in an accident and he took it to the Defendants for repair. An
estimate for the work required was agreed but the job was not completed for
eight weeks since he used the repairs for the cost of hiring a car for 3 weeks,
the period in which in his opinion the time taken for the repair exceeded what
was reasonable. It was held that there was an implied term that the repairers
could carry out the repairs with reasonable expedition and on the facts, eight
weeks was not a reasonable time.
Page 41 of 45


In Charles Rickards Ltd v Oppenheim O had placed an order in August 1947
with the defendants for the construction of a body on the Chassis of his car.
The job was to be completed within 6 months or at the most 7 months. The job
was not completed within 7 months and the plaintiff kept pressing for delivery.
Eventually he wrote to the body builders on June 28
th
1948 that he shall be
unable to accept delivery after July 25
th
. When the car was not finished by the
end of July O cancelled his order and when the car was delivered to him in
October he refused to accept it. It was held that the original stipulation
making time of essence of the contract was waived but he was entitled to give
reasonable notice once again making time of the essence. On the facts of this
case it was decided that the notice of 28
th
June was reasonable and O was not
obliged to take delivery.


GENERAL BACKGROUND
GOODS
SERVICE
DEFENCES
SERVICES
PRODUCT LIABILITY

ASSIGNMENTS ON Weights and Measures and Standards

Product Liability
Product liability is basically a common law remedy and can be on contract-
based remedies and tort-basis remedies. In contract-based remedies only
parties to the contract can sue.

Wilson v Cockrell & Co. illustrate the merchantable quality; the goods were
defective. When she put the material into the fireplace they exploded and she

Aylesbury Dairy Co. In this case a person ordered some milk from a milk
supplier and that milk contained typhoid germs. The wife consumed the milk
and got typhoid and late died. Husband sued for breach of implied conditions
under the Sales of Goods (fit for he purpose) and he can either reject the goods
as well he can sue for damages.

In Australian Knitting Co v Grant. In that case a person bought some
underwear from a retail. Some underwears were shown to him and he bought
one piece which he wore without washing it and he got a skin disease,
dermatitis. And sued under merchantable quality under the Sale of Goods Act.

Manufacturer of product
Reach the ultimate consumer
Page 42 of 45

In the form which left them- intermediate examinationreasonable care in
preparation and putting up the product

Dalkon Shield

Product liability
The majority of consumer complaints concerning defective goods or by
purchasers whose expectations are disappointed liability for damage for a
defective product is an amalgam of liability in contract and the tort of
negligence. In earlier times contract tended to predominate in judicial pattern
which produced what came to be known as the privity of contract fallacy. The
Sale of Goods Act provided a statutory protection by implying terms into
contract for the sale of goods the breach of which gives rise to certain remedies
conditions implied into contract of sale that the goods should be merchantable
and if the purpose for which the goods were bought had been made known to
the supplier the goods must be fit for the purpose.

The liability under the Sales of Goods Act is strict. It is irrelevant that the
retailer is in no way to blame for the defect and may lack opportunity to
discover the defect nor is it limited to protection against injury to person or
property. That means in appropriate circumstances there can be a liability for
economic loss also.

Merchantable quality is defined as the goods must be fit for the purpose or for
purposes for which they are normally bought as it is reasonable to expect
having regard to the description, the price and or the surrounding
circumstances. So for example if a person buys an electric blanket he can sue
the retailer if it is unmerchantable because its faulty wired and the person
suffers electric shock and also if it is useless and fails to heat the bed at all.

Refer to the following cases:
Frust v Aylesbury Dairy Co.
Godley v Perry. In this case a child bought a catapult from a retailer by sample.
It was defective and he raptured his eyes when using the catapult. He sued the
retailer on the grounds that the catapult sold to him was not of merchantable
quality. It was not fit for the purpose of a toy and the retailor was liable for the
condition of the goods. The goods were bought according to sample shown.
Australian Knitting Co v Grant

In Daniels & Daniels v R. White & Sons Ltd & Tarbard, Mr. Daniels purchased a
bottle of lemonade from Mrs. Tarbard a retailer. It had been manufacture by R.
White & Sons and contained a quantity of carbolic acid. Mr. and Mrs Daniel
Page 43 of 45

both became ill as a result of drinking it and as between the buyers Mr.
Daniels and the seller and Mrs Tarbard the condition implied by the Sale of
Goods Act were capable of applying and it was found that while there was no
implied condition of fitness since the buyer had not relied on the sellers skill or
judgment. However, the implied condition of merchantable quality applied and
had been broken. Mr. Daniels was able to recover from Mrs Tarbard damages
for personal injuries without proving that she had been negligent (i.e. strict
liability under the Sale of Goods Act). Mrs Daniel could not sue Mrs Tarbard
but could successfully sue the manufacturers for the tort of negligence,
however on the fact she failed to prove breach of necessary duty of care. Mr.
Daniels could also have sued he manufacturers successfully in tort had
negligence been proved.

The limitation on effectiveness of contract as a means of general consumer
protection against defective goods arise from the rules of] privity of contract. A
person who is not a party to a contract cannot benefit from that contract. So
for example, if the mother of the person who had suffered electric shock
because of the faulty wiring of an electric blanket cannot sue the retailer in
contract even if suffers serious injury. Also the purpose who has no claim in
contract against the wholesaler or the manufacturer because in that situation
vertical privity denies him the benefit of the conditions of merchantable quality
or fitness for a purpose.

Sometimes the courts have devised certain measures to mitigate the
consequences of the rules of privity of contract. The courts have devised what
is known as the doctrine of agency. In Lockett v Charles a husband and wife
took a meal together in a restaurant. The husband ordered the food and paid
for the bill. The wife contracted food poisoning from contaminated food. It was
held that the husband acted as his wifes agent and contracted on her behalf
thus she could sue on contract for the injuries suffered because of
contaminated food. However, the circumstances which allows an inference of
agency will be strictly limited. For example, a mother who buys goods for her
child cannot be said to act as childs agent. She may be able to recover any loss
to her caused by the injury to the child. So if a small child is scalded by a
faulty hot water bottle purchased by mothers, the mother may sue on her
contract with the retailer but the child cannot. [This was the situation in Priest
v Last. In that case the mother had bought a hot water bottle but it was
defective and because of that the child was defected.] She will recover the cost
to her of caring for her injured child but the child will be unable to recover in
contract for the pain and suffering. Any action by the child must be in the tort
of negligence. This means that normally tort-based remedies will be pursued in
those circumstances where the consumer is debarred from using contractual
remedies in cases where the consumer having suffered damage to person or
property has a choice of suing in either contract of tort. He would normally
have chosen to sue in contract because the implied terms impose a strict
Page 44 of 45

liability.]In suing for damages has a choice of suing in either contract or tort.
He would normally have chosen to sue in contract because the liability is strict.

Liability and negligence
The development of liability in negligence for defective goods was for the first
time established in the case of Donoghue v Stevenson. Prior to this case the
ambit of liability was extremely narrow due to the operation of what has
become known as contract fallacy. According to this fallacy there was no duty
of care owed by the manufacturer to any person who was not a party to a
contract with him and who was injured or otherwise suffered loss as a result of
a defect in manufacturing of goods. This contract fallacy was exploded by the
decision of the House of Lords in Donoghue v Stevenson where Lord Atkin laid
down the following statement of principle:

A manufacturer of products which he says in such a form as to show that he
intends them to reach the consumer in the form in which they left him with no
reasonable possibility of intermediate examination and with the knowledge that
the absence of reasonable care in the preparation or putting up of the products
will result in an injury to the consumers life or property owes a duty to the
consumer to take that reasonable care.

Although this statement of principle constituted a major step forward in the
development of law it is the subject of a number of restrictions, Donoghue v
Stevenson has since been extended in its range of application to goods and the
principle of negligence derived from that judgment remains of utmost
importance even now.

Range of defendants
Lord Atkin imposed liability on manufacturers. The latter case law extended
liability inter alia assemblers, repairers, suppliers of drinking water, supplier of
goods whether retailers or wholesalers, builders and others. This category of
persons to whom the principle has been extended are characterized by the fact
that they created he danger or were responsible for the creation of the danger.
The difficulty then arises is whether the principle should also apply to the
vendor of the defective goods. Here the situation is different because the
vendor has not created the danger. He has simply sold the product to the
consumer. Of course such a vender could be liable in contract particularly
under the Sale of Goods Act where the subject matter of the contract between
he parties was goods but the question is: can the supplier also be liable in tort?
It seems that he may be liable in tort where he fails to inspect the goods and he
is under a duty to inspect the goods.

Page 45 of 45

In Andrews v Hopkinson it was held that a secondhand car dealer would be
expected to check the steering on used cars. Similarly in Watson v Buckley,
Osborne, Garrett & Co. wholesalers who failed to test for themselves a hair dye
of dubious province were held to be negligent. [they were selling a hair dye
which was harmful to customers; there was a duty for them to check] So the
implication imposed upon supplier does not arise in every case and even where
it does arise it can be discharged by selling the goods as seen and with all its
faults and without warranty.

Product
The second qualification in Lord Atkins judgment is that it only applies to
products. However the principle is not confined to items such as food and
drink but it applies to any product in any normal domestic use including
underwear, hair dye, motor car, houses and installation in houses and even
tombstones, nor is it confined to consumers. In the strict sense it applies to the
ultimate user of he product as well as to persons within the close proximity of
the product. Thus a child scolded by the faulty hot water bottle purchased by
her mother can sue in negligence but less obvious person at risk may also be
within the scope of the manufacturers duty. In Barnett v H.J. Parker & Co,
the proprietor of a sweet shop was injured by a piece of metal protruding from
a sweet. He was able to recover damages from the sweet manufacturer.
Similarly in Stennet v Hancock a by-stander was held to be within the rule in
Donoghue v Stevenson.