Defective Products Flashcards
what is the relationship between Consumer Protection Act 1987 and claims in negligence or breach of contract
Claims under CPA do not replace any claim in negligence or breach of contract, so practitioners should consider all options.
What is the aim of the Consumer Protection Act 1987?
To create a strict liability regime where no fault on the part of the defendant is required.
Elements for a claim under CPA
- who can sue
- Damage?
- Product
- Defect
- Did the defect cause the damage?
- Limitations
- Defences
Who can sue?
- consumers only (no businesses)
- anyone suffering damage as a result of the defect
Who can be sued
- the producer
- any person who held themselves out to be the producer
- anyone who imported the product into the UK
Who has the burden of proof
Burden is on the Claimant to prove that the product was defective and that this caused the damage
Recoverable damage
- death
- PI
- loss of or damage to property (must have been used for private use and exceed £275)
can NEVER recover the cost of the defective product itself
Product
Any goods or electricity and anything included as a component or raw material in something else.
When is a product considered defective?
If the safety of the persons is not such as persons generally are entitled to expect, including risk of death, personal injury, and damage to property.
What factors need to be considered to determine if a product is defective?
The manner/purposes for which a product has been marketed.
The way in which a product is described on packaging and any warnings.
What might reasonably be expected to be done with/in relation to the product.
The time when the product was supplied by its producer to another.
Defences
Defect not existing in the product at the relevant time.
Defective to comply with retained EU regulation
I’m the wrong person to sue
It wasn’t manufactured for profit
It is the fault of someone after me in the supply chain
The state of scientific knowledge at the time was not such that a producer of such products would be expected to have discovered the defect if it had existed in his products. (development risks defence)
Contributory Negligence.
What is the limitation period for claims under the Consumer Protection Act 1987?
The claim must be brought within three years from the later of the date the injury and/or damage occurred or when the claimant became aware or should reasonably have become aware of the damage.
There is a long stop of ten years after the product was put into circulation by the defendant.
Negligence and defective products - who owes a duty?
The manufacturer owes duty not only to the final purchaser but to other users too (Donoghue v Stevenson, Stenett v Hancock). Repairers, suppliers, and distributors are also liable.
How is the loss of the product itself considered (tort)
As PEL - therefore not generally recoverable
How is breach established in negligence for defective products?
In most cases, a defect in a product is enough evidence to establish breach unless the manufacturer can show another reason for the breach.
How is causation determined for defective products?
Manufacturers are held liable if they have no reason to contemplate that an intermediate inspection will occur. If warnings were ignored, this breaks the chain of causation.
