Are consumers protected?

There is at this time no legislation in the island which directly in a single package protects consumers of products as a distinct set of persons. Of course, there is the Standards Act and other statutes which indirectly make it possible for the interests of those consuming goods to be safeguarded. But there is nothing, say, like the U.K's Consumer Protection Act, which guarantees and protects consumers' rights. A Bill with that in mind was drafted by the United Workers Party administration. And the incoming Labour/Freedom coalition Government had promised to pay serious attention to that draft. This was not done, either by that coalition administration or by the Labour Party Government which have followed. In these circumstances, consumers in the island depend for protection largely on the common law, that is to say, decisions handed down by the Courts from time to time.

Take, for example, the recent case of Limer. Limer is feeling thirsty and drops in at Boboy's. He slams his dollar fifty on the counter and calls for a "fresh". "Fresh" is the latest soft drink manufactured in a green bottle by Millennium Supplies Ltd., a firm duly registered under the island's Companies Act. Boboy buys the drinks wholesale and tries to make a little profit with them, retail. Miss Primrose chooses an ice-cold one, removes the cover and passes it to Limer, who immediately puts his head in the air, places the bottle to his mouth and drinks. Suddenly he stops, almost choking, water comes from his eyes and he coughs and coughs until something jumps out of his throat. That something is a small piece of the end of a lizard's tail. Does the law protect Limer and the general public from incidents such as this?

A consumer in Limer's situation enjoys two main forms of protection under the common law. One is available under the law of contract and, the other, under the law of negligence. As to the former, you will remember that an agreement becomes a contract under the law when (a) one party makes an offer, (b) the other party accepts that offer, (c) both parties give consideration, that is to say, each pays a price for the other's promise, (d) that consideration is given at the time the agreement is made, (e) the parties are, unlike a retarded or insane person or a minor, capable by law of entering into a binding agreement, and (f) both parties have made the agreement on the understanding that the Courts could step in if one or the other party fails to carry out his or her side of the bargain.

So long as an agreement is made in this way, it becomes binding on all the parties. And, whosoever fails to abide by his or her side of the bargain will be held to be in breach of contract, for which a Court will give relief to the party sticking to the agreement. Such relief includes (a) payment of damages in the form of money, or (b) specific performance, that is to say, ordering the party in breach to carry out his side of the bargain.

Further, in agreements involving buying and selling the law takes it for granted that the goods will be of satisfactory quality. This means that unless the purchaser specifically wishes to buy goods of quality that are not satisfactory, he or she expects them to be of satisfactory quality. Such a wish on the part of the purchaser may be written into the agreement or observed from his or her conduct as, for example, if the purchaser inspects the goods, finds them to be of less than satisfactory quality, but accepts them anyway.

Applying this law, it would seem that Boboy and Limer entered into a legal contract. Boboy offered to sell a "fresh" to Limer, Limer accepted the offer, gave consideration by parting with his dollar fifty, and he certainly expected that if things did not go right he was free to take Boboy to Court. It is also fairly obvious that Boboy breached the contract by serving Limer a drink of less than satisfactory quality when Limer, in fact, expected one of good quality. On the facts, then, Limer, has good cause for suing Boboy for damages for breach of contract.

While all Dominicans must have been aware of this, most probably do not know that Limer can also sue Millennium Supplies Ltd, the manufacturer of "fresh", for all the troubles he suffered after swallowing that bit of lizard tail. Such protection became available to consumers in 1932 following the House of Lords landmark decision in the English case, Donoghue v. Stevenson. The facts in that case were broadly similar to that of Limer except for three things. Firstly, the drink was a bottle of ginger beer, rather than "fresh". Secondly, the bottle contained a piece of snail rather than lizard's tail. Thirdly, the drink was bought by a friend and given gratis to the consumer, as a result of which the friend, but not the consumer, could sue the retailer for breach of contract.

The essence of the Court's ruling was this. A manufacturer of food or drink owes a "duty of care" to the consumer of those products. This is so because the consumer of a product is its manufacturer's neighbour, that is to say, a person who a manufacturer should reasonably foresee might be affected by the production and sale of the product. That duty of care must be exercised at a standard which satisfies the reasonable man, that is to say, the ordinary man on the street. If that standard is not reached, the duty of care would have been breached. In the event, a manufacturer would be held liable for negligence, meaning carelessness, as a result of which the consumer would be entitled to sue for physical injuries suffered as well as for damage done to any property other than the defective product.

In the Donoghue case, the manufacturer was held to have been negligent. The bottles of ginger beer were capped and sealed at the factory, thus making examination of their contents by the distributor impossible. Further, the bottle was not sufficiently transparent to enable him or, for that matter, the consumer to observe its contents. Hence, the manufacturer needed to exercise the greatest care in his factory operations. This had not been done. By the same logic, it is submitted that Millennium Supplies would certainly be found negligent and Limer would have a good case before the Courts. Since Donoghue v. Stevenson, the scope of the law of negligence has expanded enormously. While the decision was once thought to apply to food and drink only, as a general rule it now applies to products irrespective of type. Such products include vehicles, clothing, hair-dye, bottles, chemicals and even tombstones. In fact, not only products but also their labels and containers are covered under the law. It may be, too, that the list includes free samples or goods supplied other than in the course of business. Further, it is not only the manufacturer of defective products who may be sued for negligence. Now, the list includes designers of clothing, installers (say, of electrical products, erecters (say, of tombstones), assemblers, and repairers. Distributor may also be held liable for failing to take reasonable steps to ensure the safety of products. This occurred in an English case where hair-dye was distributed without any preliminary testing of the product, and a customer's scalp was injured as a result of its use. As well, public utilities such as DOWASCO, for example, owe consumers a duty of care in supplying them with water, for breach of which the company may be brought before the Courts. And the same holds for builders and architects.

In a nutshell, then, consumers here are protected by contract law and by the law of negligence. But there are shortcomings in both which adversely affect the consumer. Two aspects of the law of negligence will serve to make the point. One is that a consumer suing must prove that the defendant was at fault: very often, this is easier said than done. Another is that in our predominantly importing economy distributors of unsatisfactory products are hardly able, because of the manner of packaging, to check the safety of what is distributed. As a result of this the distributor can scarcely be held to be negligent. In that situation the consumer who does not have a claim for breach of contract is left with the choice of suing a manufacturer in some far-off country. Most consumers, considering the expense and delay, would hate to do so.

(Dr William Para Riviere is an Attorney at Law)

-© William Para Riviere, July 2014