Product Liability Flashcards
Common Law Negligence
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.
Narrow Rule - Donoghue v Stevenson
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
Narrow rule - Who is a manufacturer?
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
Narrow rule - What is a product?
Any item which is capable of causing damage. Extends to items supplied with the product e.g packing, containers, labels and instructions for use
Narrow rule - Who is a consumer?
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
Narrow Rule - Intermediate Examination
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.
Narrow rule - Scope of the duty owed
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
Narrow rule - Breach of duty - Required standard of care
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
Narrow rule - Proof of breach
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.
Narrow rule - Causation and Remoteness
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)
Narrow rule - Defences - Volenti
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.
Narrow rule - Defences - Contributory Negligence
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
Consumer Protection Act
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.
Consumer Protection Act - Requirements
1) Suffered damage
2) Caused by
3) A defect in a product
Consumer Protection Act - Suffered Damage
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.
Consumer protection Act - Caused by
Claimant must show that defect wholly or in part caused the damage. Usual but for test. Remoteness is not addressed.
Consumer protection act - Defect
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
Consumer protection Act - Product
Any goods or electricity and includes a product which is comprised in another product whether a component or raw material e.g car engine
Consumer Protection Act - Who is Liable? (Defendant) - Producer of the product
The manufacturer. If component part is faulty both the manufacturer of the part and manufacturer of whole product are liable
Consumer Protection Act - Who is Liable? (Defendant) - Owner brander
The person who, by putting his name or trademark on the product held himself out as being its producer
Consumer Protection Act - Who is Liable? (Defendant) - Importer
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
Consumer Protection Act - Who is Liable? (Defendant) - Forgetful supplier
Liable only where he is unable to meet a victim’s request to identify any of the people involved in the chain of supply
Consumer Protection Act - Defences - Legal Requirements
Defect was an inevitable result of compliance with legal requirements
Consumer Protection Act - Defences - A manufacturer of component part
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
Consumer Protection Act - Exclusion of Liability
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.
