Macgregor Case

This essay aims to portray each individual party’s viewpoint on the incident that occurred regarding The Macgregor Hotel and the claimants Peter and Beatrice, in addition the Crown Prosecution Court will also be scrutinising the events which took place that evening. The crown prosecution court will be the first party to put their argument forward. In order to achieve this, the consecutive order of events need to be stated: •Peter booked a room for a week at Macgregor Hotel.

At the reception desk, where he made the booking, was a notice limiting the hotel’s liability for loss of, damage to guest’s property. •Peter asked the receptionist to look after his camera but she refused saying that there was no room in the hotel safe. He stayed at the hotel any way and on the second night his camera went missing. • On the second night Peter invited his friend Beatrice to dinner in the hotel’s restaurant. At the dinner Peter ordered Helford oysters for both of them, without consulting Beatrice. During their meal it has been found that the origin of oysters was wrong, in fact the oysters served came from Whitstable and several of them were bad. •Beatrice got up and head to the toilets because I felt sick, when making my way there I started to feel dizzy and tripped over a ripped carpet on the stairs, falling hard and breaking her arm. The Trade Description Act 1968 provides statutory authority for a possible claim in breach as Section 1. article (1) states: Any person who, in the course of a trade or business- a) applies a false trade description to any goods; or (b) supplies or o description is applied, offer to supply any goods to which a false trade description is applied, shall, subject to the provisions of this Act, be guilty of an offence. Section 2 (1) states, that a trade description is an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say- place or date of production.

The oysters could be said to have been misrepresented from the menu’s description as they were not what they were meant to be. Authority which supports this view comes from the case Jarvis v Swan Tours [1972] QB 223, Swan Tours produced a brochure for a winter holiday. Mr Jarvis booked this holiday on the basis of the description in the brochure. However the description in the brochure was false as many activities described in the brochure did not take place. Swan Tours were found guilty of the offence.

Therefore on these grounds Macgregor hotel should face liability as they also made a similar misrepresentation to what the plaintiffs thought they would receive. In reference to Beatrice’s food poisoning, The Food Safety Act 1990 can be referenced, as it states in section 3, article (2): Presumptions that food intended for human consumption: Any food commonly used for human consumption shall, if sold or offered, exposed or kept for sale, be presumed, until the contrary is proved, to have been sold or, as the case may be, to have been or to be intended for sale for human consumption.

The defendant is therefore responsible for the food prepared by its restaurant, including its production and the way it is served. The restaurant owe a duty of care to its costumers by serving well prepared food at their own risk, the plaintiffs did not consent to eat the faulty oysters by entering the restaurant. According to The Food Safety Act 1990, section 14 (1) states, any person who sells to the purchaser’s prejudice any food which is not of the nature or substance or quality demanded by the purchaser shall be guilty of an offence.

In addition to the above the Food Safety Act 1990 section 15 (1b) states, any person who gives with any food sold by him, or displays with any food offered or exposed by him for sale or in his possession for the purpose of sale, a label, whether or not attached to or printed on the wrapper or container, which is likely to mislead as to the nature or substance or quality of the food. Both the above points are valid in terms of fulfilling the requirements of a breach concerning the food safety act.

The authority supporting this view can be derived for the case of Hobbs v Winchester Corporation [1910] where the butcher was guilty because the meat he tried to sell was unfit for human consumptions. The second argument will be delivered by Beatrice where her account of the occurrences will be reviewed, along with possible claims and remedies available to her. Crucial acts which may be of great use to Beatrice will also be referenced, in order to strengthen her case against the defendant Macgregor hotel.

After having consumed the faulty oysters Beatrice felt sick, whilst making her way to the toilets she tripped over ripped carpet falling hard and breaking her arm. Prior to this incident Beatrice was working as a team assistant/PA investment banker employed by HSBC on a full time contract of 40 hours per week. In regards to the injury Beatrice was unable to work for a period of two months therefore she suffered financial loss as well as sustaining personal injuries which are certified by medical reports.

The first statute which can be referred to is the occupiers liability act 1957 s. 2 (1), which states: ‘“Occupier of the premises (defendant) owes the same duty of care, the common duty of care to all visitors” The Macgregor hotel therefore owed a duty of care towards Beatrice, ensuring all necessary precautions are taken to ensure a safe stay at the hotel avoiding any potential dangers which may cause harm to a visitor.

This duty was breached as there was ripped carpet which could have been foreseen by a staff member and rectified before an accident like the present one occurred. In reference to causation the ‘but for test’ can be used, as if the carpet was not ripped and was not a potential hazard, Beatrice would not have fallen. The carpet was a direct cause of her fall which resulted in personal injury. Section 2(2) of the Occupiers Liability Act 1957 states that: “A duty to take such care as in all the circumstances is reasonable to see that the visitor will be safe…. or which he is invited or permitted by the occupier”. On this statement the permission to enter into the premises was given, the claimant was not a trespasser who was not permitted. Therefore due to this reason the Macgregor hotel should have taken greater care with the food served and also with faulty parts to the foundation of the hotel. Another key part of the act which can be referred to is Subsection 4 (a) which states “where damage is caused to the visitor by danger which he had been warned”.

However this wasn’t the case as there was no caution signs or staff oral awareness of the defect within the stairs signalling visitors to be careful. Also no defence is available under Subsection 4b and 5 of the act as the ripped carpet occurred from normal wear and tear as opposed to bad workmanship and my client accepted no risk willingly to the ripped carpet regardless of how it formed In addition to claiming a breach in the above statute, Beatrice may also have a claim in negligence, which again is relevant to the reasonable duty of care which is owed to visitors.

The leading case which provides authority for this claim is that of Donongue and Stevenson (1933), the facts of this case will be reviewed in depth further on. The famous speech of Lord Atkin goes as follows: “….. in English Law there must be and is some general conceptions of relations giving rise to a duty of care, of which the particular cases found it, the books are but instances the rule that you are to love your neighbour becomes in law: you must not injure your neighbour and the lawyer’s question: who is my neighbour?

Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omission which are called in question”.

On the basis of this speech Beatrice could be entitled to claim a remedy of damages as the negligent actions of the hotel have a close and direct effect on the visitors staying therefore Macgregor hotel had a specific duty owed which was breached resulting in personal injury. The third argument is that of peter who is the second plaintiff, he shares as similar argument to Beatrice in addition peter can refer to a breach of further statutory law.

The first one is the Sale and Supply of Goods Act 1979 which states ‘Where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description. The second one is the Supply of goods and Services Act 19982- section 13 which states In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

Based on the above acts there is a breach in contract as the goods delivered differed from the goods anticipated by the plaintiff who entered into this contract, hence peter has the right to claim for damages. Further authority for this claim is Jackson v Horizon Holidays (1975) 1 WLR 1468 Where Mr. Jackson arranged s four week holiday, what he contracted for differed substantially from the reality, as the facilities were out of use and he specifically asked for communicating doors between two rooms, this was also unavailable.

Therefore he sued and was awarded damages; hence peter could also succeed in a claim. Lastly having the above disputes in mind, the defendant Macgregor hotel will be putting forward a validated argument. The first reference shall review the trades description act which states, The commission of the offence was due to a mistake or to reliance on information supplied to him or to act or default another person, an accident or some other cause beyond his control’. This relates to the case, as the oysters manufactured were not in the defendants control.

The oysters were supplied to them by their manufacturers who have a good reputation and are trustworthy. They have been working with their manufacturers for the past eight years and never had such an incident occur. This offence or default was beyond their control and they were not the direct cause for the accident, as it rooted from the manufacturers. Furthermore The Trade description also states that: ‘That he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control’.

This also relates to the case as the defendants claim to take reasonable precautions to certify that the food is suitable for serving. They continuously check their products on their delivery for their sell by dates and if anything seems incorrect they re-order, however this was not the case with the oysters. The oysters were known to be suitable for serving and the offence was not committed by the defendants directly or anyone under their immediate control. The oysters cannot be manually checked before serving, therefore once served the consumer is the only person who can verify their validity.

Secondly, in their defense reference can be made to the Food safety act 1990 which states that: ‘Any food commonly used for human consumption which is found on premises used for the preparation, storage, or sale of that food shall be presumed until the contrary is proved to be intended for sale, or for manufacturing food for sale of that food’. This relates to the case as the food (oysters) served to Peter and Beatrice was for human consumption and was on the premises of the hotel, therefore they were intended for sale and served no other purpose.

The leading authority which may assist the defence is that of Tesco v Natrass 1976, this is a leading case on The Trades Description Act 1968 s. 24 (1) where Tesco relied upon the defence of the ‘act or omission of another person’ for example, their store manager to show that they had taken all reasonable precautions and all due diligence . Tesco was charged under the Trade Descriptions Act 1968 for falsely advertising the price of washing powder.

In its defense Tesco argued that the manager had taken all reasonable precautions and all due diligence, and that the conduct of the manager could not attach liability to the corporation. The current case which we are dealing with also revolves around the issue of false advertising, as peter ordered Helford oysters and received whitstable oysters. It could be the case that they were labeled wrong or possibly that they were out of stock at the time and replaced it with different type of oysters.

Lastly the defence may exclude their liability in reference to peters stolen camera through the application of an exclusion clause which stated that the hotel is not responsible for stolen goods. Peter accepted this statement by pursuing his stay at the hotel, agreeing to the offer the defence had proposed. Four clear concise arguments from four individual parties are approached above; it would now depend on the judge and jury to govern this case in respect of the statutes and authorities stated. Lastly in reference to peters stolen camera, liability to the defendants can be excluded due to the use of an exclusion clause which stated