Claims in Negligence Flashcards
Why would C bring a claim in negligence rather than via statute?
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
Why would someone not sue in contract law?
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
What are the benefits of suing in contract?
This is the only method you can recover the cost of the faulty product
What is the foundations for a claim in negligence?
Donoghue v Stevenson
Donoghue v Stevenson
C must prove D owed a duty of care
They breached this duty
The breached caused the harm
Who owes who a duty of care?
“the manufacturer owes the consumer a duty of care” Donoghue v Stevenson
who is a manufacturer?
wide definition, anyone from packers, machine operators, distributors (Donoghue v Stevenson)
Disadvantages of suing in negligence
- 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)
Who is the ultimate consumer ?
any person who comes into contact with the product (Donoghue v Stevenson)
Murphy v Brentwood DC
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)
Andrews v Hopkinson
D was a second hand car dealer and held to be a manufacturer, thus liable for negligence
Stennet v Hancock
C was hit by part of a wheel that came of D’s lorry, C was a consumer (illustrates wide scope of definitions)
E Hobbs (Farms) Ltd v The Baxenden Chemical Co Ltd
M’s have a duty to recall if new evidence shows that the product doesn’t have the same qualities as originally advertised.
How do you determine if D breached their duty?
Easy to determine, it is inferred by the manufacturers carelessness
Grant v Australian Knitting Mills
Exhibits the manufacturers carelessness will infer the breach:
there is no other way the sulphite could have affected the pants; therefore D was liable
How is the unfair contract terms act 1977 linked?
Exclusion clauses attempting to exclude D from negligent liability are unenforceable
Hurley v Dyke
D had not breached the duty because he provided a warning
D stated the car ‘is seen with all its faults without warranty’
What will break the chain of causation?
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
Evans v Triplex Glass
D was relieved of liability, it was held the default was more likely to be due to the glass fitters opposed to the manufacturers
Kubach v Hollands
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.
