9. Liability in Tort for Defective Products

Question 1

What two conditions must be satisfied for a manufacturer to owe a duty of care in negligence?

Answer 1

1. Manufacturer puts the product into circulation in the form in which it is intended to reach the end consumer, and
2. No reasonable expectation of an intermediate examination of the product before reaching the consumer

Question 2

Who is the duty of care in negligence for a defective product owed by?

Answer 2

The person who manufactured the product, but the class of defendants can also extend to those who install/repair products

Question 3

Will a retailer who merely supplies a product generally owe a common law duty of care?

Answer 3

No, unless they reasonably ought to have inspected the product for defects before supplying it

Question 4

Does the duty of care in negligence extend to damage caused to property by a defective product?

Answer 4

Yes, but damage caused to the defective product is specifically excluded and cannot be claimed for.

Question 5

What is the strict liability regime under the Consumer Protection Act 1987 for damage caused by defective products?

Answer 5

Not necessary to prove that it arose because of fault on the part of the defendant, but it is still necessary to prove the defect

Question 6

Who can claim under the CPA product liability regime?

Answer 6

Anyone who suffers damage caused by a defect: not limited to people who purchased the product as would usually be the case in a contractual claim), nor even limited to people who used the product.
.

Question 7

What three categories of parties may be a defendant under the CPA regime?

Answer 7

1. Manufacturer/producer of the product
2. Any person who holds themselves out as a manufacturer/producer of the product by putting their own mark on it, and
3. Any person who imported the product to supply it in their course of business

And
4. Supplier of a defective product if within a reasonable time, when requested, details identifying producer/importer are not provided.

Question 8

Under the CPA regime, what is the liability of each defendant where there are two or more defendants?

Answer 8

Joint and several

Question 9

What three conditions must be satisfied for a supplier to be liable under the CPA regime?

Answer 9

1. Person who suffered damage requests identity of producer within a reasonable time
2. Not reasonably practicable for the claimant to identify the producer on their own, and
3. Supplier fails to identify the producer (or its own supplier) within a reasonable time

Question 10

In determining whether a product is defective, what factors will be taken into account?

Answer 10

1. The manner and purposes for which it was marketed.
2. What might reasonably expect to be done with/ in relation to the product.
3. Instructions and warnings provided.
4. The time when producer was supplied by its producer to another (i.e. expectation of safety may be different from what it used to be).

Question 11

What is the definition of damage under the CPA regime?

Answer 11

Death or personal injury, or loss or damage to personal property -

Question 12

Damage to what three things is excluded under the CPA regime?

Answer 12

1. Damage to the defective product itself (contract option still available)
2. Business property (naturally as it is the Consumer Protection Act)
3. Property damage which does not exceed £275

Question 13

What are the six defences available under the CPA regime?

Answer 13

1. Contributory negligece.
2. Product not supplied in the course of business.
3. Defect did not exist in product at time of supply (ie. misuse of product, best before date on goods).
4. State of the Art defence - not known or forseeable at date of circulation.
5. Manufacture of component is not liable if finished product is defective and defect is due to a flaw in design of finished product.
6. Limitation period

Question 14

What two conditions must be met to argue the defence that the product was not supplied in the course of business?

Answer 14

1. Defendant was not acting in the course of business when they supplied, and
2. Defendant either was not the producer of the product, or the defendant was not acting with a view to profit

Question 15

What must be shown for the state of the art defence?

Answer 15

Due to the state of scientific and technical knowledge at the time the product was supplied, the producer could not have been expected to discover the defect even if it existed

Question 16

In what situation is the state of the art defence not available?

Answer 16

Where a class of products carries a known risk of containing a defect and a defect arises, the defence will not be available

Question 17

Can liability be excluded under the CPA regime?

Answer 17

No

Question 18

What four elements are relevant in establishing a claim for product liability at common law?

Answer 18

governed by negligence principles
1) Defendant must be a manufacturer;
2) Product must have caused damage;
3) To its ultimate consumer - anyone; foreseeably affected by the product.
4) No likelihood of intermediate examination (ie. coca-cola can)

Question 19

Where a claimant is aware of the product’s defect/danger, will they be liable if they continue to use it?

Answer 19

yes

Question 20

What is the limitation period for a claim for product liability under the CPA 1987?

Answer 20

three years from the date of either (i) injury or damage; (ii) became aware or should reasonably become aware of the damage

or

Long-stop date of 10 years from the date the product was put in circulation.

Question 21

How are products defined under the CPA 1987?

Answer 21

any goods, electricity, product comprised in another product (i.e. raw material making up phone).

Question 22

What are two limitations on the damage that can be recovered for under the CPA?

Answer 22

*Claim over loss/damage to property must exceed £275.

*No claim can be brought for damage to property unless it was intended for private use/occupation/consumption.

Question 23

How is the limitation period under CPA compared to the tort of negligence?

Answer 23

CPA - 3 years from the date of damage or knowledge.

Tort of negligence - 6 years.

Question 24

How is a claim under the CPA comparable to a negligence claim?

Answer 24

1) CPA protect not only people who purchased the product, by anyone suffering as a result of the defect can sue.

2) CPA does not require that foreseeability of harm be necessary to establish a duty of care.

3) The causation requirement under the CPA is simpler than what is required for a negligence claim - simply requires that the damage be caused “wholly or partly” by the damage.

4) No need to show fault - CPA is a strict liability regime.
- common law negligence claim can be useful if long-stop limitation has come into effect.

Question 25

How can a claim for defective products be established at common law?

Answer 25

Need to establish breach and causation in the usual way.

For breach - the manufacturer fell beyond the standard of care.
For causation - the manufacturer could contemplate a reasonable probability that goods would not be subject to intermediate inspection.