- A breach of the duty of care: this is viewed according to a ‘reasonable
man’, so if the risk is very small, there is no liability – Bolton v Stone
(1951). A professional will be judged by accepted standards, for example
medical standard practice – Bolam v Friern Hospital (1957). - Damage caused by the breach: this must be a direct cause, not as in
Barnett v Chelsea and Kensington Hospital (1957) where a man died
because of the amount of poison already in his system and not because
of the negligent act of the doctor at the hospital.
The concept of contributory negligence must also be considered here, as a
person may have contributed towards the damage caused, even thought they
were not responsible for the initial problem. A common example is a claim
for personal injury in a motor accident, where the compensation is reduced
by a proportion representing the victim’s contributory negligence in not
wearing a seat-belt.
For more on the law of negligence see the companion book in this series
on the law of tort.
Criminal liability
Another area of law where liability may arise is criminal law. This does not
necessarily result in any compensation for the victim, but acts as a deterrent
to prevent further wrongs taking place. Criminal liability may arise
alongside civil claims. So, for example, if a seller of goods describes them
wrongly, liability may arise under Sale and Supply of Goods Act 1994, in
misrepresentation, directly through the contract as a breach, and also under
criminal law. This criminal liability derives from two main sources:
- The Trade Descriptions Act 1968 – this contains penalties for statements
which falsely describe goods or services, such as quantity, size, method
of manufacture, composition. Liability under this Act arose when a watch
was described as ‘waterproof ’ and a ‘diver’s watch’ in Sherratt v Geralds
(1970), but was found to leak after one hour in a bowl of water. The Act
also applies to description of services, an example being a description of
a hotel’s air conditioning – or the lack of it – in Wings v Ellis (1985). - The Consumer Protection Act 1987 – this contains penalties for
misleading statements about the price of goods and services. A statement
of price would be misleading if it was marked on the product as £15 but
£15.50 was charged by the cashier. A code of practice has been issued
with the Act, which does not incur liability if breached, but may be used
as evidence of a breach.
The current state of consumer protection
The general trend in protecting the consumer, then, can be seen as a still
growing area of law, particularly in light of our membership of the
248 Contract law