10 - Product Liability Flashcards
What are the possible causes of action for damage caused by defective products?
A cause of action for defective products may lie in one of three areas of law:
- Tort of negligence
- Consumer Protection Act (CPA) 1987 – Covers strict liability for defective products.
- Contract law – Contract law might be relevant if the claimant suffered injury or loss as a buyer.
However, suing in contract is often not an option in cases where:
- The claimant was not the buyer of the product and does not come within the Contracts (Rights of Third Parties) Act 1999.
- The supplier has gone out of business.
In these situations, the only causes of action open to the claimant are in tort.
What does a claimant need to prove to succeed in a negligence claim regarding defective products?
In a negligence claim involving defective products, the claimant must show:
- Duty of care owed by the defendant.
- Breach of that duty by the defendant.
- Causation of damage to the claimant.
- Non-remote damage sustained by the claimant.
These elements are consistent with general negligence claims, but case law has established some special rules that specifically apply to defective products.
What is the narrow rule from Donoghue v Stevenson regarding duty of care in defective product cases?
In Donoghue v Stevenson, the narrow rule established that a manufacturer owes a duty of care to a consumer if:
- The defendant is a ‘manufacturer’.
- The item causing damage is a ‘product’.
- The claimant is a ‘consumer’.
- The product reached the consumer in the form in which it left the manufacturer, with no reasonable possibility of intermediate examination.
This rule was formulated within the context of a defective product case involving a bottle of ginger beer containing the remnants of a dead snail. The narrow rule specifies when a manufacturer owes a duty of care to the consumer in cases concerning defective products.
Note that there is not an absolute duty to inspect and test every product; what is reasonable will depend on the circumstances.
When determining duty of care the key question is - Whether the manufacturer failed to produce a product which meets the expectations of a reasonable man.
Who is considered a ‘manufacturer’ under the narrow rule in Donoghue v Stevenson?
The term ‘manufacturer’ is interpreted broadly in the narrow rule, extending to any person who works on a product before it reaches the consumer, which includes:
- Repairers (e.g., in Haseldine v Daw & Son Ltd), who work on products to ensure they are safe for use.
- Installers (e.g., in Stennett v Hancock), responsible for the proper installation of products.
- Suppliers, when they have a duty to inspect due to a product’s age, known defects, or potential serious consequences if used in a defective state (e.g., Andrews v Hopkinson).
A supplier may also owe a duty if:
- The manufacturer requests an inspection or testing, or
- They have actual knowledge of a defect or danger.
Example: When a car is serviced or a boiler installed, both the local garage and heating engineers are considered ‘manufacturers’ and owe a duty of care to the consumer for negligence.
What items fall under the definition of a ‘product’ for the purposes of the narrow rule in defective product liability?
A ‘product’ includes almost any item capable of causing damage, beyond the actual item itself.
This covers:
- Items supplied with the product, such as packaging, containers, labels, and instructions for use.
Example: The duty to ensure safety applies not only to the drink in Donoghue v Stevenson but also to its bottle, as packaging that reaches the consumer.
Who qualifies as a ‘consumer’ under the narrow rule in Donoghue v Stevenson for defective product cases?
A ‘consumer’ includes:
- The ultimate user of the product.
- Anyone the defendant should reasonably foresee as likely to be injured by the defendant’s negligence, fitting the definition of ‘neighbours’ from the Donoghue v Stevenson case.
Example: If a defective car brake causes an accident, the ‘consumer’ would encompass:
- The driver and passengers (e.g., Mrs Smith, her daughter Pamela, and Pamela’s friend Sandra).
- Pedestrians or bystanders (e.g., William).
- Property owners whose premises might be damaged (e.g., Jennifer, whose house was damaged in the incident).
All of these individuals are foreseeable persons likely to be affected by the manufacturer’s lack of care, given cars operate near roads, buildings, and pavements.
How does the possibility of intermediate examination impact the manufacturer’s duty of care under the narrow rule in Donoghue v Stevenson?
The manufacturer may not owe a duty if there is a reasonable possibility of an intermediate examination before the product reaches the consumer.
This principle means:
- If an intermediate party has an opportunity to examine the product, the manufacturer may not be liable under the narrow rule.
- However, this does not necessarily leave the injured party without recourse, as the duty may fall to the party who could have conducted the examination.
- A mere opportunity for examination does not suffice to release the manufacturer from duty; the manufacturer must reasonably expect an examination.
- If a defect is hidden and would not have been revealed by an intermediate or consumer examination, the manufacturer retains duty.
Example: In Kubach v Hollands, a chemical explosion injured a schoolgirl during an experiment. The chemical’s manufacturer avoided liability because the chemical was supplied with a warning that it should be tested before use, indicating a reasonable expectation of examination.
However, the intermediate supplier (second defendant) was held liable due to its knowledge of the chemical’s potential danger and the need for testing before school experiments.
Which types of losses are covered under the narrow rule in product liability, according to Donoghue v Stevenson?
The duty under the narrow rule covers:
- Personal injury resulting from the defect in the product.
- Property damage caused by the defective product.
Example: In the case of Amanda’s defective toaster:
- Damages from her burns and the fire damage to the kitchen curtains are recoverable, as they constitute injury and property damage due to the product defect.
- The cost of redecorating the kitchen is also recoverable, as it results from damage to property other than the toaster itself.
However:
Pure economic losses, such as the cost of replacing the faulty toaster or repairing the defect in the toaster, are not recoverable in negligence, as they stem solely from the defective quality of the product.
What is the standard of care required of manufacturers under a duty of care in negligence, and how is it determined?
The duty of care in negligence requires a manufacturer to exercise reasonable care.
The standard of care expected is determined by:
- The standard of the “reasonable” person in that specific role (e.g., reasonable ginger beer manufacturer, reasonable garage, or reasonable hydraulic engineer).
The specific circumstances of each case, which include:
- The magnitude of the foreseeable risk,
- The gravity of potential injury, and
- The costs and practicalities of precautions.
A manufacturer may fulfil its duty by providing adequate warnings of any dangers associated with the product. Warnings are particularly relevant where there is an opportunity for intermediate examination, as in Kubach v Hollands.
How must a claimant prove a breach of duty in negligence, and what is the role of ‘res ipsa loquitur’ in product liability cases?
In negligence claims, the burden of proving breach of duty rests with the claimant.
- The claimant must present evidence of what went wrong in the manufacturing process, even without direct knowledge or presence during manufacturing.
- The principle of res ipsa loquitur, often used to assist in proving breach where facts are outside the claimant’s knowledge, does not typically apply in product liability cases as per Lord Macmillan in Donoghue v Stevenson.
In what circumstances may a court infer breach of duty in product liability cases, even without direct evidence?
Courts may infer a breach of duty in product liability cases if the claimant proves certain facts, even if direct evidence is lacking.
This approach:
- Allows courts to infer a breach based on available evidence rather than relying on res ipsa loquitur, which requires no specific facts.
- Requires the claimant to demonstrate facts from which the court can make an inference.
Example: In Grant v Australian Knitting Mills, the Privy Council inferred a breach when the claimant proved the presence of sulphur in underwear but could not show a specific manufacturing fault. The inference was that reasonable care would have prevented the presence of the chemical.
Similar inference was made in Carroll v Fearon, but once the inference arises, the court will find breach unless the defendant rebuts by proving an alternative cause, such as claimant misuse of the product.
How must a claimant prove causation and remoteness in product liability cases, and what are the relevant principles?
In product liability cases, the claimant must establish causation and remoteness by:
- Proving the defendant’s breach caused their loss, applying the ‘but for’ test.
- Example: In Evans v Triplex Safety Glass Co Ltd, the claimant’s car windscreen shattered 12 months after being fitted by the defendants, injuring the claimant. The court found that due to this time lapse, the claimant failed to establish a causal link between the defendant’s alleged negligence and the disintegration of the windscreen.
If factual causation is established, the court then examines:
- Any intervening acts that may have occurred, and
- The remoteness of the claimant’s loss, determining if it was of a reasonably foreseeable type using the Wagon Mound test.
Under what circumstances can the defence of consent (voluntary assumption of risk) be used in product liability negligence claims?
The defence of consent, also known as volenti non fit injuria, can apply if:
- The claimant is aware of a defect in a product but continues to use it despite this knowledge.
- However, mere knowledge of the risk is not enough to amount to consent. For this defence to succeed, the claimant’s conduct must indicate a willing acceptance of the risk associated with using the product.
- This requirement makes the defence challenging to establish, as it requires proof that the claimant voluntarily accepted the specific risk posed by the product defect.
What are the legal restrictions on excluding liability for negligence in cases involving death, personal injury, or other losses under UK law?
Exclusion of liability for negligence is regulated by:
The Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA 2015), which specify that:
- Liability for death or personal injury due to negligence cannot be excluded where liability arises in the course of business or trade.
- For non-consumer claims in negligence that involve other types of loss or damage, exclusion may be permitted if the reasonableness test (under UCTA) is satisfied.
- In cases where the claimant is a consumer, the exclusion of liability for negligence resulting in other types of loss or damage is permissible only if it passes the fairness test (CRA 2015)
When can contributory negligence be used as a partial defence in product liability negligence claims?
Contributory negligence may serve as a partial defence when:
- The claimant’s actions are insufficient to show consent to the risk but still contributed to the injury by disregarding a known defect or danger.
Example: If a claimant, like Mike, notices a potential danger—such as a loose hammer head—but continues using the hammer without taking action, any damages awarded in a negligence claim against the manufacturer may be reduced to reflect the claimant’s contributory negligence in continuing to use the product despite being aware of the risk.
