*PRODUCT LIABILITY*

Question 1

How must the claimant establish a duty of care under the narrow rule (circumstances in which a manufacturer of a product would owe a duty of care to their consumer) in Donoghue v Stevenson?

Answer 1

• the defendant is a manufacturer
• the item causing the damage is a product
• the claimant is a consumer
• the product reached the consumer in the way it left the manufacturer with no reasonable possibility of intermediate examination

Question 2

Who is a manufacturer?

Answer 2

• anyone who works on the product before it reaches the consumer
• includes repairers of products (Haseldine v Daw & Sons Ltd)
• installers of products (Stennett v Hancock)
• sometimes even suppliers of products (Andrews v Hopkinson)

Question 3

When is a supplier deemed a manufacturer?

Answer 3

• under Andrews v Hopkinson
• if the circumstances are such that they ought to reasonably inspect or test the the products which they supply

Question 4

What is a product?

Answer 4

• any item you can imagine which is capable of causing damage
• includes packaging labels and instructions for use

Question 5

Who is a consumer?

Answer 5

• ultimate user of the article
• anyone whom the defendant should have in mind as likely to be injured by D’s negligence
• e.g passenger in poorly manufactured car/ pedestrian hurt as a result

Question 6

Give an authority for when manufacturer may not owe duty of care if there is reasonable possibility intermediate examination.

Answer 6

• Kubach v Hollands
• the manufacturer escaped liabilty because the chemical provided explicitly said to test it before use
• this would’ve indicated that there would’ve been a dangerous explosion
• manufacturer was relying on the ‘reasonable possibility’ of there being an intermediate examination
• the school escaped liability as it did not meet the duty of a supplier
• the retailer were liable because the manufacturer alerted them to test the substance first
• they failed to do so

Question 7

What types of loss are covered by the narrow rule?

Answer 7

• under Murphy v Brentwood District Council it covers any damage to property done by the defect and injury to person
• does not cover the cost of replacing the actual defective product as this is PEL
• can recover replacing any other damaged property just not defective product itself

Question 8

How does a claimant go about proving breach of duty?

Answer 8

• this is difficult to prove for C as they were not there during manufacturing process
• all they need to essentially prove is that reasonable care was not taken in the manufacturing process
• in Grant v Australian Knitting Mills C suffered severe dermatitis due to sulfur in her underwear
• although C could prove the presence of sulfur in the factory and the underwear they couldn’t prove any fault of the manufacturing process
• it was just inferred that there had been a breach of duty

Question 9

How does the inference in breach of duty here differ from res ipsa loquiter?

Answer 9

• res ipsa loquiter requires the claimant to prove some facts on which the court can base its inference
• court will infer breach of duty unless D can rebut the inference proving that the defect was not due to lack of care

Question 10

Evans v Triplex Safety Glass Co Ltd

Answer 10

• causation must be established and in this case the windscreen smashing 12 months after it was fitted was too long of a lapse of time to establish remoteness
• there was no casual link between the alleged negligence by D and disintegration of the windscreen

Question 11

Can the defendent bring up volenti as a defence?

Answer 11

• if a claimant is aware of the defect in a product then there is potential defence of volenti
• however, for volenti to succeed there needs to proof of the CONSENT element
• it’s easy to show claimant’s knowledge of the risk but hard to prove that they willingly accepted that risk

Question 12

Can the defence bring up contributory negligence?

Answer 12

• yes
• it is possible that this could be brought up and therefore reduce the email of damages the claimant is able to recover

Question 13

Who can sue under the CPA 1987?

Answer 13

• section 2(1) of the CPA 1987 lays down that to succeed in a claim under the CPA the claimant needs to establish:

1) that they have suffered damage
2) caused by
3) a defect
4) in a product

• therefore similarly to a claim under narrow rule the claimant can be anyone

Question 14

What constitutes as ‘damage’ under s5 of the CPA?

Answer 14

• s5(4)property damage must be above £275 for the full amount of loss or damage is recoverable
• s5(1) claims for death and personal injury are without limit
• personal injury can include impairment of mental condition
• s5(3) damage caused by a defective product to business property is outside the scope of CPA and is regarded as PEL
• the actual defective product is not recoverable and that is also PEL

Question 15

How is causation in a CPA claim different to a claim in negligence?

Answer 15

• under CPA the claimant must show that the defect caused the damage
• under claim in negligence they need to show that breach of duty of care caused damage

Question 16

What does it mean by ‘defect’?

Answer 16

• under s3(1) and (2) defect usually means unsafe or that the safety of product does not meet the level of safety expected front he product

Question 17

How is the level of safety of a product assessed?

Answer 17

• looking at the whole get up and presentation of the product e.g packaging/ instructions/ warnings
• what the expected use of the product is
• the age of the product itself

Question 18

A v National Blood Authority

Answer 18

• expectation for the blood products would due that the blood would be free from viruses e.g hepatitis C
• therefore it was defective under definition under s3 of CPA
• even though it was shown that the risk of viral infection in blood was unavoidable at the time as there were not tests available
• this contrasts from a claim in negligence where all that needs to be shown is that reasonable care was shown

Question 19

What does ‘product’ mean?

Answer 19

• s1(2) says that a product means ‘any goods or electricity and includes a product which is comprised in another product whether…a component… or raw material’
• therefore under A v National Blood Authority

Question 20

Who is liable under the CPA?

Answer 20

1) the producer of the product eg manufacturer
2) an ‘own brander’
- the person who puts their name or trademark on the product and therefore held themselves out as being liable
3) an importer
- person who imported the product into the UK from outside of UK to supply it to another person
4) a supplier but only under circumstances set out in 2(3)
- this is where they are unable to meet the victim’s request to identify any of the people involved in the chain of supply eg wholesaler or manufacturer

Question 21

What kind of liability is there under s2(1) of the CPA?

Answer 21

• strict liability
• defendant will be liable without proof of any fault on their part

Question 22

What are the defences set out in s4(1) of the CPA 1987?

Answer 22

• otherwise known as the ‘development risks’ or ‘state of the art’ defence is one of the most controversial aspects of the CPA

1) it includes that the defect was attributal to compliance with legal requirements
2) the defendant supplied the product otherwise than in the course of business e.g a defective product is sold by one friend to another.
3) the defect did not exist when the defendant supplied the product
E.g if a defendant could therefore show that the defect was caused by misuse of the product or by fair wear and tear, this defence will succeed.
4) a manufacturer of component parts is not liable for a defect in the finished product which is wholly attributable to the design of the finished product or to compliance with the instructions given by the manufacturer of the finished product
5) development risks’ (or ‘state of the art’)

Question 23

What is the developmental risks defence and why is it so important in certain fields? Why might people argue against it?

Answer 23

• d must prove that the state of knowledge at the time product was supplied amongst producers fo the product in question was not such as to allow a producer of the product to discover the effect

F: - if this defence was not available then manufacturers may be deterred from developing new products mainly in pharmaceuticals
- these may potentially be great benefit to the public

A: - individual consumers have to bear the development risks should they happen and it would be more appropriate for the manufacturers to bear the risks because thy can insure

Question 24

What does s6(4) of CPA say?

Answer 24

• CN applies where C is partly responsible for their loss or damage

Question 25

By 7 what can the CPA not limit in any way? Compare this to the exposition on excluding liability in negligence.

Answer 25

• CPA cannot limit liability at all
• liability in negligence for personal injury or death cannot be limited in any way whatsoever under UCTA 1977 s2(1) and CRA s65
• however liability to businesses in negligence for other loss or damage can be excluded given it satisfies the reasonableness test in UCTA s2(2) or fairness test if consumer under s62 of CRA 2015

Question 26

Compare claims in negligence to claims in CPA

Answer 26

• under the CPA 1987, liability is strict; whereas in a claim in negligence, the claimant must establish the defendant’s negligence in order to succeed.
• while damage to other property is recoverable under both claims, if business property has been damaged, no claim for the damage lies under the CPA 1987.
• furthermore, the minimum claim for damage to private property under the CPA 1987 is £275.
• the class of potential claimants is wider under the CPA 1987, given that a claimant need not be a foreseeable victim.
• the class of potential defendants is wider under the tort of Negligence and would include people like repairers and installers
• they would not come under the definition of a ‘producer’ in the CPA 1987

Question 27

Why might someone sue in contract when a supplier has supplied a defective product and not tort?

Answer 27

• because his damages would extend to the cost of repairing the faulty product seeing as PEL is recoverable in contract
• he would be able to recover ALL losses as they would fall under scope of the rule in Hadley v Baxendale given its a natural consequence of breach or something in contemplation of parties at the time contract was made