Chapter 8 - Liability for Defective Products

Question 1

What are the three areas of law where a cause of action for defective products may lie?

Answer 1

1. Tort of negligence
2. Consumer Protection Act (CPA) 1987
3. Contract law

Question 2

What is the “narrow rule” in Donoghue v Stevenson?

Answer 2

The circumstances in which a manufacturer of a product would owe a duty of care to the consumer.

Question 3

What must a claimant establish to show a duty of care under the narrow rule in Donoghue v Stevenson?

Answer 3

• 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.

Question 4

How is the term “manufacturer” interpreted in the context of the narrow rule?

Answer 4

Broadly. It includes anyone working on a product before it reaches the customer. This includes repairers, installers, and sometimes suppliers.

Question 5

What are some examples of cases where repairers and installers were considered “manufacturers” under the narrow rule?

Answer 5

• Repairers: Haseldine v Daw & Son Ltd
• Installers: Stennett v Hancock

Question 6

When can a supplier be considered a “manufacturer” under the narrow rule?

Answer 6

• When the circumstances suggest they should have inspected or tested the products.
• If they have actual knowledge of a defect or danger.

Question 7

What is a relevant case where a supplier was found liable under the narrow rule?

Answer 7

Andrews v Hopkinson: The supplier was liable for a car with defective steering because they should have checked it given the car’s age and the potential consequences of the defect.

Question 8

What does the term “product” encompass in product liability cases?

Answer 8

Almost any item capable of causing damage, including packaging, containers, labels, and instructions

Question 9

Who is considered a “consumer” under the narrow rule?

Answer 9

• The ultimate user of the product
• Anyone the defendant should reasonably foresee as likely to be injured by their negligence (“neighbours” in Donoghue v Stevenson).

Question 10

What is the “intermediate examination” principle in product liability?

Answer 10

If there is a reasonable possibility of someone examining the product before it reaches the consumer and detecting the defect, the manufacturer might not be liable under the narrow rule.

Question 11

What is the key case concerning “intermediate examination?” Explain the outcome.

Answer 11

Kubach v Hollands:
* A schoolgirl was injured in a chemical experiment. The chemical was wrongly labelled, but came with a warning to test before use. The manufacturer was not liable because they expected the test to be conducted, creating a “reasonable possibility” of intermediate examination.

Question 12

What is the significance of an “express warning” in relation to intermediate examination?

Answer 12

An express warning to test a product before use, which would reveal a defect, can absolve the manufacturer of liability under the narrow rule, as seen in Kubach v Hollands.

Question 13

What types of loss are covered under the narrow rule in Donoghue v Stevenson?

Answer 13

Injury to persons or damage to property caused by the defective product. Pure economic loss (e.g., reduced value of the product, repair costs) is generally not covered.

Question 14

What is a case that illustrates the scope of the duty owed under the narrow rule, particularly regarding pure economic loss?

Answer 14

Murphy v Brentwood District Council: This case established that losses stemming solely from the defective quality of the product itself are considered pure economic loss and are not recoverable under the narrow rule.

Question 15

What is the standard of care expected of manufacturers in product liability cases?

Answer 15

Reasonable care, considering factors like the magnitude of the risk, gravity of potential injury, and practicality of precautions.

Question 16

How can warnings affect a manufacturer’s duty of care in product liability cases?

Answer 16

Adequate warnings about potential dangers can help satisfy the duty of care. They can also be relevant to the “intermediate examination” principle, potentially shifting the duty to the party who had the opportunity to examine the product.

Question 17

What is the significance of Grant v Australian Knitting Mills in proving breach of duty in product liability?

Answer 17

The court inferred breach of duty even though the claimant couldn’t pinpoint a specific flaw in the manufacturing process. The presence of a harmful chemical in the underwear was enough to infer negligence.

Question 18

Explain the concept of “inference of breach” in product liability cases.

Answer 18

• Courts can infer a breach of duty if the claimant proves some facts suggesting the defect wouldn’t have existed had the defendant taken reasonable care.
• The defendant must then rebut this inference. This differs from res ipsa loquitur, which requires less evidence from the claimant.

Question 19

What is a case that exemplifies the “but for” test in causation for product liability?

Answer 19

Evans v Triplex Safety Glass Co Ltd: The claimant’s car windscreen shattered, but they couldn’t establish a causal link between the defendant’s alleged negligence and the incident due to the time lapse.

Question 20

What is the relevance of The Wagon Mound test in product liability cases?

Answer 20

It determines remoteness, meaning whether the claimant’s loss is a reasonably foreseeable consequence of the defendant’s negligence.

Question 21

When might the defense of voluntary assumption of risk (volenti non fit injuria) apply in product liability?

Answer 21

If the claimant knowingly uses a defective product and is injured, the defendant might argue volenti. However, knowledge of risk alone isn’t enough; the claimant’s conduct must demonstrate a willing acceptance of that risk.

Question 22

Explain the defense of contributory negligence in product liability.

Answer 22

This partial defense applies if the claimant’s own negligence contributed to their injury. Their damages might be reduced.

Question 23

Can liability in negligence for death or personal injury be excluded in product liability cases?

Answer 23

No, not if the liability arises in the course of business or trade, according to the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015.

Question 24

Can liability for other types of loss or damage be excluded in product liability cases?

Answer 24

Yes, but only if the exclusion meets the reasonableness test (Unfair Contract Terms Act 1977) or the fairness test (Consumer Rights Act 2015).

Question 25

What are the key elements a claimant must establish in a claim under the Consumer Protection Act 1987 (CPA 1987)?

Answer 25

1. They suffered damage
2. Caused by a defect
3. In a product

Question 26

Who can sue under the CPA 1987?

Answer 26

Anyone who can establish the elements of a claim. The class of claimants is broad and is not limited to buyers or direct users.

Question 27

What types of “damage” are covered under the CPA 1987?

Answer 27

• Death and personal injury (unlimited)
• Damage to private property exceeding £275
• Not damage to business property or the cost of repairing/replacing the defective product itself (pure economic loss)

Question 28

What is the causation standard in claims under the CPA 1987?

Answer 28

The claimant must prove the defect caused the damage using the usual “but for” test.

Question 29

How is “defect” defined under the CPA 1987?

Answer 29

A product is defective if its safety is not what persons generally are entitled to expect. It focuses on unsafe products.

Question 30

What factors are considered when determining the level of safety persons are entitled to expect under the CPA 1987?

Answer 30

• Product presentation (packaging, instructions, warnings)
• Expected use of the product
• Age of the product

Question 31

What is the significance of A v National Blood Authority in relation to “defect” under the CPA 1987?

Answer 31

The court decided that blood infected with hepatitis C was defective even though the risk was unavoidable with the technology available at the time. This highlights the strict liability nature of the CPA 1987.

Question 32

What does the term “product” mean under the CPA 1987?

Answer 32

Any goods or electricity. It includes component parts and raw materials.

Question 33

Who can be held liable under the CPA 1987?

Answer 33

• The producer (manufacturer)
• An “own-brander” (someone presenting the product as their own)
• An importer
• A supplier (only if they cannot identify others in the supply chain)

Question 34

Explain the concept of strict liability under the CPA 1987.

Answer 34

The claimant does not need to prove fault (negligence) on the part of the defendant. Liability arises simply from the existence of a defect that caused damage.

Question 35

What are the key defenses available under the CPA 1987?

Answer 35

• The defect was due to compliance with legal requirements.
• The defendant did not supply the product.
• The supply was not in the course of business.
• The defect did not exist when the defendant supplied the product.
• The defect is attributable to the design of the finished product (for component part manufacturers).
• “Development risks” defense (state of the art)
• Contributory negligence

Question 36

Explain the “development risks” defense under the CPA 1987

Answer 36

A manufacturer might not be liable if the defect was undiscoverable given the state of scientific and technical knowledge at the time the product was supplied. This defense is controversial, especially with pharmaceuticals.

Question 37

What is the limitation on the “development risks” defense?

Answer 37

The knowledge considered is not limited to what the specific producer knew but includes the highest standard of knowledge accessible globally. The defense only applies to risks that were not foreseeable.

Question 38

Explain the defense of contributory negligence under the CPA 1987.

Answer 38

It operates as a partial defense if the claimant’s actions contributed to their damage.

Question 39

Can liability be excluded under the CPA 1987?

Answer 39

No, defendants cannot exclude, limit, or restrict their liability under the CPA 1987.

Question 40

Contrast the CPA 1987 with the narrow rule in Donoghue v Stevenson regarding strictness of liability.

Answer 40

Liability under the CPA 1987 is strict, while negligence under the narrow rule requires proof of fault (breach of duty).

Question 42

How do the CPA 1987 and the narrow rule compare regarding the recoverability of damages for personal injury and damage to property?

Answer 42

Both allow recovery for personal injury and damage to property. However:
* The CPA 1987 excludes damage to business property.
* The CPA 1987 has a minimum threshold of £275 for damage to private property.

Question 43

Compare the class of potential claimants under the CPA 1987 and the narrow rule.

Answer 43

The class of potential claimants is broader under the CPA 1987, as it does not require the claimant to be a foreseeable victim

Question 44

Compare the class of potential defendants under the CPA 1987 and the narrow rule

Answer 44

• The narrow rule is broader in that it covers repairers and installers, who might not be considered “producers” under the CPA 1987.
• The CPA 1987 covers importers and “own-branders,” who might not fall within the scope of a negligence claim