Claims in Negligence

Question 1

Why would C bring a claim in negligence rather than via statute?

Answer 1

There are no defences
AND
C may be restricted by the limitations in the statute e.g.:
the damage doesn’t exceed £275
The injury was sustained 10 years after the product was in circulation
They have not bought there claim within 3 years since the accident

Question 2

Why would someone not sue in contract law?

Answer 2

due to privity of contract, only the purchaser is able to sue the retailer because the contract is between those two parties.

Thus, if it is a gift, C cannot sue via contract. The purchaser cannot do it on their behalf because they did not suffer the injury

Question 3

What are the benefits of suing in contract?

Answer 3

This is the only method you can recover the cost of the faulty product

Question 4

What is the foundations for a claim in negligence?

Answer 4

Donoghue v Stevenson

Question 5

Donoghue v Stevenson

Answer 5

C must prove D owed a duty of care
They breached this duty
The breached caused the harm

Question 6

Who owes who a duty of care?

Answer 6

“the manufacturer owes the consumer a duty of care” Donoghue v Stevenson

Question 7

who is a manufacturer?

Answer 7

wide definition, anyone from packers, machine operators, distributors (Donoghue v Stevenson)

Question 8

Disadvantages of suing in negligence

Answer 8

• You can only sue the manufacturer
• You cannot sue for the cost of the product, only the harm it causes
• It is harder to sue for design defects due to establishing causation (e.g. in thalidomide incident it would be hard to establish that there were no extraneous factors which could cause the defect)

Question 9

Who is the ultimate consumer ?

Answer 9

any person who comes into contact with the product (Donoghue v Stevenson)

Question 10

Murphy v Brentwood DC

Answer 10

a duty will not arise if the loss is one of pure economic loss (i.e. the product only). There must be consequential loss (i.e. a faulty hair dryer sets fire and damages the bathroom)

Question 11

Andrews v Hopkinson

Answer 11

D was a second hand car dealer and held to be a manufacturer, thus liable for negligence

Question 12

Stennet v Hancock

Answer 12

C was hit by part of a wheel that came of D’s lorry, C was a consumer (illustrates wide scope of definitions)

Question 13

E Hobbs (Farms) Ltd v The Baxenden Chemical Co Ltd

Answer 13

M’s have a duty to recall if new evidence shows that the product doesn’t have the same qualities as originally advertised.

Question 14

How do you determine if D breached their duty?

Answer 14

Easy to determine, it is inferred by the manufacturers carelessness

Question 15

Grant v Australian Knitting Mills

Answer 15

Exhibits the manufacturers carelessness will infer the breach:

there is no other way the sulphite could have affected the pants; therefore D was liable

Question 16

How is the unfair contract terms act 1977 linked?

Answer 16

Exclusion clauses attempting to exclude D from negligent liability are unenforceable

Question 17

Hurley v Dyke

Answer 17

D had not breached the duty because he provided a warning

D stated the car ‘is seen with all its faults without warranty’

Question 18

What will break the chain of causation?

Answer 18

If someone else down the supply chain inspected the products but didn’t notice the fault
If M passed on instructions to check the products and X didn’t, or didn’t tell whom they passed it on to
If C knew of the default but used the product anyway

Question 19

Evans v Triplex Glass

Answer 19

D was relieved of liability, it was held the default was more likely to be due to the glass fitters opposed to the manufacturers

Question 20

Kubach v Hollands

Answer 20

the manufacturer warned the retailer than the chemicals must be checked before distribution. The retailer did not check the products nor pass on the warning to the consumer whom was then injured by the chemicals. Chain of causation was broken, retailer liable.