Claims Under CPA 1987 Flashcards
Why was the CPA introduced?
There was worldwide pressure following the thalidomide incident to introduce strict liability for defective products
Justifications for imposing strict liability:
- Manufacturers create products for profit, therefore if their product causes harm it is reasonable for them to accept the risk
- Manufacturers are in the best position to insure against these risks
- Strict liability is an incentive to thoroughly check products
Checklist for establishing a claim under CPA:
1) can C sue
2) can D be sued
3) is it a ‘product’
4) is it ‘defective’
5) did the defect cause the harm
6) do any limitations apply
7) does D have any defence
who can sue?
Statute doesn’t explicitly say but privity of contract doesn’t apply and reading between the lines of s2 anyone affected by the product can sue
Who can be sued?
Essentially anyone before it reaches the ultimate consumer:
s1(2) and 2(2) Manufacturers, producers, ‘own branders’ i.e. companies who put their brand on someone else’s product, importers and suppliers
- if more than one person is liable they can be joint and severally liable
What does product mean?
Goods, electrical components, a product part of another product, raw material, growing crops, ship, air craft or vehicle
- S1(2)(c) and s45
What does defect mean?
s3: Safety of the product is not what someone would expect
- Objective test - what ‘people generally’ expect, not manufacturers ect
- Criticised for being a weak definition
Key consideration – was a warning given?
Burden of proof is on C to prove the defect and that it caused them harm
Did the defect cause the harm?
s5/6 - defect must be the cause of the harm, the harm cannot be caused by one of many possibilities (ruled out by Wilsher v Essex HAA)
What are the limitations that may affect a claim?
s5:
S5(4) Must have suffered death or personal injury or property damage with a value of more than £275
Claim must be bought within 3 years of damage
Claim must be 10 years of product being put into circulation
What defences are available?
This is all in the statute book so wouldn’t worry too much.
S4(1)(a) – defect is due to compliance by legislation
S4(1)(b) – D proves he never supplies the product
S4(1)(c) – D did not supply the goods in the course of business
S4(1)(d) – D supplied a component, but defect is due to faulty design of the final product or poor installation of the component by M
S4(1)(e) - D proves that he could not have discovered defect due to scientific knowledge ‘development of risks defence’
What is the most contentious defence? Explain why
S4(1)(e) - D proves that he could not have discovered defect due to scientific knowledge
i.e. if the discovery of the defect is made after it is put into circulation, the D will not be liable.
This appears to be subjective opposed to objective, if the info was written in a small journal in Manchuria it will probably be held the information was not accessible, therefore, defence will be allowed. However, vis visa if it were in France. (Accessibility came from EC v UK). Defence wasn’t allowed in A v National Blood
This protects pharmaceutical companies, the government were very vocal about keeping this provision.
What is meant by joint and severally liable?
the C can sue one of several D’s, it is the D’s responsibility to recover the portions from the other D’s
Richardson v LRC Products
Non-defective product
The top of a condom sheared off during sex. Suing saying the condom was defective. Court disagreed because there are clear warnings on the packet condoms are not 100% effective
Bogle v McDonalds
non-defective product
C argues the coffee that burnt her was defective in 2 ways 1) it was too hot, 2) the lids came off too easily. Court dismissed the case holding that ‘a persons generally’ would expect a coffee to be hot and take extra care. They also referred to ‘legitimate consumer expectation’ – the coffee should be hot and lids come off for milk and sugar
CA: compensation culture (people suing for compensation)
Pollard v Tesco (more a case for CA)
non-defective product
Bottle that didn’t comply with British Design Standard was not defective. Court justified this because consumers don’t know what the standard is, just that a child proof cap must be harder to remove.
- CA: doesn’t seem to comply with ‘defective’
