11. Product Liability

Question 1

Duty of Care relevant to negligence claims relating to defective products

Answer 1

‘Narrow’ conception of the duty of care in Donoghue v Stevenson

Question 2

Duty of Care under the Narrow Rule in Donoghue v Stevenson

Answer 2

To show a duty of care, claimant must establish that
1. Defendant is a ‘manufacturer’
2. item causing damage is a ‘product’
3. claimant is a ‘consumer’
4. product reached consumer in the form which it left the manufacturer with no reasonable possibility of intermediate examination

Question 3

‘Defendant is a Manufacturer’ Meaning

Answer 3

Any person who works in some way on a product before it reached the consumer
1. repairers of products
2. installers of products
3. potentially suppliers of products

Question 4

When will a ‘supplier’ fall under the definition of ‘manufacturer’ (and potentially owe a duty of care)

Answer 4

If the supplier reasonable ought to have inspected or tested the product supplied by them
- could be due to the item’s age (old)
- and serious consequences of not inspecting

Question 5

‘Item causing damage is a product’ meaning

Answer 5

Almost any item which is capable of causing damage, extends to items supplied with the product (packaging, containers, instructions)

Question 6

‘Claimant is a consumer’ meaning

Answer 6

Anyone whom the defendant should reasonably have in mind as likely to be injured by their negligence (the ‘neighbours’ in Donoghue v Stevenson)
- not necessarily the actual user of the product

Question 7

No possibility of intermediate examination: what does this mean in practice

Answer 7

If there is a reasonable possibility that the item will be inspected, manufacturer will not be liable
- ie. if the item is supplied with the notice that it should be tested before use and it is not tested before use,
- but if testing cannot reveal the fault, the manufacturer remains liable

Question 8

What types of loss are within the scope of the narrow duty of care?

Answer 8

Any injury to persons or damage to property done by the defect of the product
- But pure economic loss is not covered (ie. loss of defective quality of produce, reduction in value of product or cost of repairing product / replacing it)

Question 9

Breach of Duty: how is this discerned

Answer 9

Looking at whether the manufacturer fell below the standard of care of the ‘reasonable manufacturer’ determined by looking at magnitude of foreseeable risk, gravity of injury, costs and practicalities of precautions etc.

Question 10

Manufacturer’s Warnings and their standard of care

Answer 10

If a manufacturer provides an adequate warning they may discharge their duty of care

Question 11

Is ‘res ipsa loquitor’ available in product liability cases?

Answer 11

No

Question 12

How can the claimant ‘prove’ breach of duty if they are unaware of the specifics of the manufacturing process

Answer 12

The court may be prepared to ‘infer’ breach based on the facts of the case (ie. there must have been something wrong in the process to produce this result)
- claimant must prove SOME facts on which the court can base its inference

Question 13

If the court infers that a breach has been committed based on facts provided by the claimant, what options does the defendant have?

Answer 13

The defendant will try to rebut this inference by proving that the defect was NOT due to a lack of care from the defendant, rather some later problem (ie. the claimant’s use of the product)

Question 14

Establishing Causation and Remoteness

Answer 14

Done in the usual way - must be causal link
- after causation is established, court considers any intervening acts, and remoteness

Question 15

Defences for a claim in negligence for a defective product

Answer 15

1. Consent
2. Exclusion of liability (liability to non-consumers can be excluded if reasonableness test is satisfied in UCTA or the fairness test for consumers in the CRA)
3. Contributory negligence

Question 16

Who can sue under the Consumer Protection Act 1987

Answer 16

Anyone who can establish that they have
1. suffered damage
2. caused by
3. a defect
4. in a product

Question 17

CPA Claims: Definition of ‘damage’ - what does it include and not include?

Answer 17

1. Death and personal injury of any amount
2. Damage to private property exceeding 275
3. NOT damage caused to business property
4. NOT cost of repairing or replacing defective product

Question 18

CPA Claim: Proving Causation

Answer 18

Claimant must show causal link between their damage and defect in product
- but for test applies
- must show DEFECT caused damage (as opposed to the breach of duty)
- Act is silent on remoteness, if they did apply, this is a tort of strict liability so direct consequences test would likely cover the issue

Question 19

CPA Claims: Defining Defect

Answer 19

1. Claimant must prove damage was caused wholly or partly due to the defect
2. ‘the safety of the produce is not such as persons are generally entitled to expect’ considering:
   - set up and presentation of product
   - age of product
   - expected use of product

Question 20

CPA Claims: Definition of ‘Product’

Answer 20

Widely defined as any goods or electricity and includes a product comprised in another product whether a component or raw material (eg. including an engine in a car or blood)

Question 21

Potential defendants under the CPA 1987

Answer 21

1. Producer of product (manufacturer)
2. An ‘own-brander’
3. An importer
4. A supplier (same limited circumstances as CPA 1987)

Question 22

CPA Claim: If a product’s part is faulty, who is liable, the manufacturer or the manufacturer of the specific part?

Answer 22

Both of them - as both fall under the definition of ‘product’

Question 23

Definition of ‘Own-Brander’

Answer 23

Person, who by putting their name or trademark on product, holds themself out as being its producer

Question 24

Definition of ‘importer’ (CPA Claim)

Answer 24

A person who imported the product into the UK from outside of the UK in order to supply it to another person

Question 25

When are suppliers potential defendants under the CPA 1987

Answer 25

If the supplier is unable to meet a victim’s request to identify any of the people involved in the chain of supply - then they will be liable themselves

Question 26

Defences to a CPA 1987 Claim

Answer 26

1. Defect attributable to compliance with legal requirements
2. Defendant dud not supply the product to another (ie. product was stolen from factory before sale)
3. Defendant supplied product otherwise than in the course of business (defective product sold from one friend to another)
4. defect did not exist when the defendant supplied the product (ie. caused by misuse etc.)
5. Component Parts Manufacturer Only: if there is a defect caused by design of the FINISHED product or compliance with instructions from manufacturer of FINISHED product
6. development risks
7. Contributory Negligence

Question 27

Defendant wanting to rely on ‘development risks’ defence under the CPA - what must they prove

Answer 27

The defendant must prove that the state of knowledge at the time the product was supplied, amongst producers, would not have allowed a producer to discover the defect
- will be judged against standard of highest standard of knowledge accessible anywhere in the world
- only applies to defects / risks which CANNOT be foreseen

Question 28

Can a defendant in a CPA claim rely on an exclusion of liability as a defence?

Answer 28

No, under the CPA 1987, a defendant cannot exclude, limit or restrict their liability in any way