liability for defective products Flashcards
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RELATIONSHIPTO LIABILITY FOR BREACH OF CONTRACT
- Benefts of Breach of Contract Claim
Liability for breach of contract is strict (it does not depend on proving that the supplier of the goods was at fault). Also, a claim for breach of contract can also include damage to the goods themselves. This loss is not recoverable in a claim in Tort because it is classed as pure economic loss - Privity of Contract Restriction
For a claim in contract to be possible, there must be privity of contract between claimant and defendant (subject to limited statutory exceptions permitting a third party, without privity, to enforce a contract). So a party who did not purchase goods would not, in general, have a remedy in contract against the supplier.
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Duty of Care
The duty arises when the following conditions are satisfied:
*The manufacturer puts the product into circulation in the form in which it is intended to reach the end consumer; and
*There is no reasonable expectation of an** intermediate examination** of the product between leaving the manufacturer and reaching the consumer.
duty of care -consumer
Negligence
The duty is owed to anyone whom the manufacturer could
reasonably foresee as likely to be affected by a defect in the product.
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duty of care-manufactuerer
negligence
- The duty is owed by the person who manufactured the product. This class of defendants also extends to those who install or repair products.
- Retailer
In general, a retailer who merely supplies the product to another does not come under a duty of care in negligence.(Contrast this with the liabilities of the retailer in contract).
However, a retailer will owe such a duty if they** reasonably ought to have inspected the product** for defects beforesupplying it.
Personal Injury
negligence
The duty of care owed by the manufacturer to the consumer extends to personal injury caused by the product. It will also cover any economic loss consequential to such injury, such as loss of wages or costs of medical treatment.
Damage to Property
Negligence
The duty of care owed by the manufacturer to the consumer extends to damage which the defective product causes to other property. However, it does not extend to damage caused to the defective product itself. Such damage is regarded as pure economic loss and is not recoverable.
Breach of Duty
breach is established by showing that the defendant manufacturer** fell below** the** standard of care** to be expected of a reasonable manufacturer of goods of the kind in question.
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CONSUMER PROTECTION ACT 1987 – STRICT LIABILITY
- The Consumer Protection Act 1987 (‘CPA’) creates a regime of strict liability for damage caused by defective products.
- The CPA applies when damage is caused by a** defect** in a product.** It is not necessary to prove that the defect arose because of fault on the part of the defendant.**
Exam Tip
Liability under the Consumer Protection Act is strict, not absolute. The claimant does not need to prove that the defendant was at fault, but he does need to prove that there was a defect in the product.
claimant (1987 Act)
Anyone who suffers damage caused by a defect in a product is a potential claimant under the CPA.
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defendent (CPA 1987 )
*The producer of the product (generally, the person who
manufactured it);
*Any person who held themselves out as the producer
of the product by putting their name or mark on it (often
referred to as the ‘own brander’); and
*Any person who imported the product in order to supply
it in the course of their business.
When two (or more) potential defendants are liable to the
claimant for the same damage, they are jointly and severally liable.
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Supplier of Product
(CPA1987 )
Under the CPA, the supplier of a product is a potential defen-dant only in the following limited situation:
*The person who suffered damage (the claimant) may request the supplier to** identify the producer** (or own brander or importer);
*The request must be made within a reasonable period of time;
*It is not reasonably practicable for the claimant to identify those persons independently; and
*The supplier fails to identify the producer (or alternatively its own supplier) within a reasonable period.
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Meaning of Defect (CPA 1987)
- Under the CPA, a product is defective if its safety is not such as persons generally are entitled to expect.
- In determining whether a product is defective within this defnition, all the circumstances are to be taken into account, including:
*Instructions and warnings provided with the product;
*The product packaging and the purpose for which the product was marketed;
*What might reasonably be expected to be done with the product; and
*The time when the product was supplied
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Damage
(CPA 1987 )
Under the CPA, damage is defned as death or personal inju-ry or damage to property. However, some types of damage are excluded from coverage and so cannot be recovered:
*Damage to the defective product itself cannot be recovered.
*Damage to business property is not covered.
*Property damage which does not exceed £275 cannot be recovered.
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defense (CPA 1987)
a.No Defect When Product First Put into Circulation
It is a defence for the defendant to show that the defect in the product did not exist when it was supplied by the produc-er (or own brander or importer).
b.The Defendant Did Not Supply the Product in the Course of a Business
It is a defence for the defendant to show that both of the following are satisfied:
*The defendant was not acting in the course of a business when they supplied the product; and
*The defendant either was not the producer (or own brander or importer) of the product, or the defendant was not acting with a view to profit.
c.‘State of the Art’ Defence
It is a defence for the defendant to show that the state of sci-entifc and technical knowledge, at the time when the product was supplied, was not such that a producer of products of that type might be expected to have discovered the defect if it had existed in the products while they were under the defendant’s control. However, the scope of this defence has been narrowly interpreted in situations in which a class of products carries a known risk of containing a defect, but the state of scientific and technical knowledge is such that the producer is unable to detect that defect before supply. In these circumstances, if the product supplied does contain the defect and causes damage, the producer will not be able to rely on this defence.
d.Contributory Negligence
The defence of contributory negligence also applies to claims under the CPA under the same rules as apply for de-
fences to negligence.
e.No Exclusion of Liability
The CPA provides that liability under the Act cannot be limit-ed or excluded.
proving breach of duty
- a court may infer breach of duty from the defect itself, if
- the defect could only have risen because of some fault in the manufacturing process, and
- manufactuerer has control over the process
it is difficult to establish if the work is done by a 3rd party other than the manufactuer, or the the damage is caused by a defective design. There comes the consumer right act
