Product Liability

Question 1

Common Law Negligence

Answer 1

Narrow rule. Must show there is a duty of care, breach of duty, causation and remoteness, any potential defences. The claimant needs to be a foreseeable victim.

Question 2

Narrow Rule - Donoghue v Stevenson

Answer 2

To show a duty of care under the narrow rule the claimant must establish that:
1) The defendant is a ‘manufacturer’
2) The item causing damage is a ‘product’
3) The claimant is a ‘consumer’
4) The product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination

Question 3

Narrow rule - Who is a manufacturer?

Answer 3

Any person who works in some way on a product before it reaches the consumer. E.g repairers of products, installers of products, suppliers of products. Supplier may owe a duty under narrow rule if the circumstances are such that they ought reasonably to inspect or test the products which they supply

Question 4

Narrow rule - What is a product?

Answer 4

Any item which is capable of causing damage. Extends to items supplied with the product e.g packing, containers, labels and instructions for use

Question 5

Narrow rule - Who is a consumer?

Answer 5

Not only user of the product but anyone whom the defendant should reasonably have in mind as likely to be injured by defendant’s negligence

Question 6

Narrow Rule - Intermediate Examination

Answer 6

If there is a reasonable possibility of intermediate examination before it reached the consumer then the manufacturer of the product will not owe a duty. The duty may be owed instead by the party having the opportunity to examine the product. A mere opportunity or possibility of intermediate examination will not be enough to exonerate a manufacturer. The manufacturer must believe there is a likelihood of such examination taking place.

Question 7

Narrow rule - Scope of the duty owed

Answer 7

Covers an injury to persons or damage to property done by the defect in the product. If the only loss is the defective quality of the product itself the reduction in value of the product or the cost of repairing the defect or replacing of the product would not be covered by the duty of care - pure economic loss

Question 8

Narrow rule - Breach of duty - Required standard of care

Answer 8

The reasonable manufacturer of the same product. Factors to look at will include: magnitude of the foreseeable risk, the gravity of potential injury and the costs and practicalities of precautions. A manufacturer may be able to comply with its duty of care by adequately warning the consumer of any danger connected with the product

Question 9

Narrow rule - Proof of breach

Answer 9

Maxim of res ipsa loquitur cannot be used for product liability. Therefore the claimant will need to establish facts from which breach can be inferred. Need to produce evidence that the defect was present when the product left the factory.

Question 10

Narrow rule - Causation and Remoteness

Answer 10

Must establish the casual link between defendant’s breach and the loss and damage they have suffered and that this loss is not too remote. Factual causation - usual but for test. If established look at intervening acts and remoteness - wagon mound test (foreseeability)

Question 11

Narrow rule - Defences - Volenti

Answer 11

If a claimant is aware of a defect in a product and nonetheless decides to continue with the use of the product then there is scope for the defendant to argue volenti (consent). Knowledge of risk is not enough it must indicate a willing acceptance of the product.

Question 12

Narrow rule - Defences - Contributory Negligence

Answer 12

Continuing to use the product once aware of the defect/danger - the claimant has failed to take care for their won safety and that this failure had contributed to the harm they suffered

Question 13

Consumer Protection Act

Answer 13

Anyone who can establish that they have suffered damage caused by a defect in a product can sue under CPA. Class of claimant is very wide - not just confined to the buyer, or even a direct user, of the product. In contrast to narrow rule the act does not need claimant to be a foreseeable victim.

Question 14

Consumer Protection Act - Requirements

Answer 14

1) Suffered damage
2) Caused by
3) A defect in a product

Question 15

Consumer Protection Act - Suffered Damage

Answer 15

Claims for death and personal injury are without limit. Consequential losses such as lost earnings are recoverable. Costs of repairing/replacing defective product is unrecoverable as its classes as pure economic loss. Anything less than £275 will not be recoverable in respect of property damage. Damage to business property is not recoverable but it is in Narrow rule.

Question 16

Consumer protection Act - Caused by

Answer 16

Claimant must show that defect wholly or in part caused the damage. Usual but for test. Remoteness is not addressed.

Question 17

Consumer protection act - Defect

Answer 17

Defect = unsafe - the safety of the product is not such as persons generally are entitled to expect. E.g court decided that consumer expectations for blood products were that the blood would be free from viruses so therefore it was defective, despite being unavoidable. Does not require the claimant to prove that the defect resulted from any fault or carelessness on the defendant’s behalf. Liability is strict in that the defendant will be liable without any fault on his part

Question 18

Consumer protection Act - Product

Answer 18

Any goods or electricity and includes a product which is comprised in another product whether a component or raw material e.g car engine

Question 19

Consumer Protection Act - Who is Liable? (Defendant) - Producer of the product

Answer 19

The manufacturer. If component part is faulty both the manufacturer of the part and manufacturer of whole product are liable

Question 20

Consumer Protection Act - Who is Liable? (Defendant) - Owner brander

Answer 20

The person who, by putting his name or trademark on the product held himself out as being its producer

Question 21

Consumer Protection Act - Who is Liable? (Defendant) - Importer

Answer 21

Person who imported the product into a member state of the EU from a non-member state in order to supply it to another person. Doesn’t cover an importer who imports from another member state of EU

Question 22

Consumer Protection Act - Who is Liable? (Defendant) - Forgetful supplier

Answer 22

Liable only where he is unable to meet a victim’s request to identify any of the people involved in the chain of supply

Question 23

Consumer Protection Act - Defences - Legal Requirements

Answer 23

Defect was an inevitable result of compliance with legal requirements

Question 24

Consumer Protection Act - Defences - A manufacturer of component part

Answer 24

A manufacturer of a component part 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. Can only apply if defendant proves that state of knowledge at the time the product was supplied was not such to allow them to discover the defect

Question 25

Consumer Protection Act - Exclusion of Liability

Answer 25

A defendant cannot exclude, limit or restrict his liability in any way if a trader or business. However other damage can be excluded if satisfied reasonableness or fairness tests.