Product Liability

Question 1

Negligence for product liability

Answer 1

• To succeed in a negligence claim, the claimant must prove a duty of care, breach of that duty, and resulting damage that is not too remote.
• Special rules apply to claims involving defective products.
• “Donoghue v Stevenson” introduced the “neighbor principle” and the “narrow rule” regarding manufacturer’s duty of care.

Question 2

Duty of Care in “Donoghue v Stevenson” Narrow Rule

Answer 2

Under the narrow rule in “Donoghue v Stevenson,” a duty of care arises if:

• The defendant is a “manufacturer.”
• The item causing damage is a “product.”
• The claimant is a “consumer.”
• The product reached the consumer without reasonable possibility of intermediate examination.

Question 3

Who is a ‘Manufacturer’?

Answer 3

• Liability applies to the “manufacturer” of a product, a term broadly interpreted by courts.
• It includes those who work on the product before reaching the consumer (e.g., repairers, installers, and suppliers in some cases).
• Suppliers may owe a duty if they should reasonably inspect or test products or have knowledge of defects.

Question 4

What is a ‘Product’?

Answer 4

• “Product” in the context of “Donoghue v Stevenson” covers almost any item capable of causing damage.
• The duty extends to items supplied with the product, including packaging, containers, labels, and instructions for use.

Question 5

Who is a ‘Consumer’?

Answer 5

• “Consumer” includes the ultimate user and anyone likely to be injured due to the defendant’s negligence.
• It covers foreseeable victims in negligence terms.

Question 6

Intermediate Examination

Answer 6

If there’s a reasonable possibility of intermediate examination, the manufacturer may not owe a duty under the narrow rule.

If a third party’s examination wouldn’t have revealed the defect, the manufacturer remains liable.

Question 7

Scope of Duty Under the Narrow Rule

Answer 7

The duty under the narrow rule covers injury to persons or damage to property caused by the defect.

Pure economic loss (e.g., the cost of replacing the faulty product itself) is not covered by the duty.

Question 8

Breach of Duty

Answer 8

The standard of care in negligence is to exercise reasonable care.

The actual standard depends on circumstances, including risk magnitude, potential injury, and practicalities of precautions.

Adequate warnings can be relevant to meeting the duty.

Question 9

Proof of Breach

Answer 9

The claimant must prove breach of duty, which can be challenging when facts are beyond their knowledge.

“Res ipsa loquitur” isn’t relied upon in product liability cases.

Courts may infer breach based on facts proven by the claimant.

Question 10

Causation and Remoteness

Answer 10

The claimant must prove causation (“but for” test) and that the damage is foreseeable.

Remoteness principles may apply, typically using the “direct consequences test.”

Question 11

Defences

Answer 11

Defences in negligence for product liability include consent, exclusion of liability, and contributory negligence.

Question 12

CPA 1987

Answer 12

The CPA 1987 provides an additional cause of action for product liability.

To sue under the CPA 1987, the claimant must prove damage, causation, a defect, and that the defendant is liable.

Liability is strict under the CPA 1987.

Question 13

Who Can Sue Under CPA 1987?

Answer 13

Anyone suffering damage caused by a defect in a product can sue under the CPA 1987.

The scope of claimants is wide and not limited to buyers or direct users.

Question 14

Damage under CPA

Answer 14

• Claims for death and personal injury have no financial limit.
• For damage to private property, it must exceed £275.
• Damage to business property isn’t covered.
• Repair or replacement costs of the defective product itself are not recoverable (pure economic loss).

Question 15

Who is liable?
Under the CPA 1987

Answer 15

the four categories of potential defendant are:
* The producer of the product (ie the manufacturer).
* An ‘own-brander’.
* An importer.
* A supplier, but only in limited circumstances outlined under the CPA 1987.

Question 16

Nature of Liability Under CPA 1987

Answer 16

Liability under the CPA 1987 is strict, meaning defendants are liable without proof of fault or negligence.

Question 17

Defences Under CPA 1987

Answer 17

The CPA 1987 provides complete defences such as compliance with legal requirements, non-supply of the product (Theft, Thiefs child or friend to friend) , and product misuse.

The defense of “development risks” applies to cases where defects could not have been foreseen due to the state of knowledge at the time.

Contributory negligence remains a partial defense under the CPA 1987.

Question 18

Exclusion of Liability Under CPA 1987

Answer 18

Defendants cannot exclude, limit, or restrict their liability under the CPA 1987.

Question 19

Question 1
A solicitor is instructed by a manufacturer of exercise bikes. They have been notified of
a claim by a customer. The details of the claim are that the customer bought one of the
top-of-the-range exercise bikes from a sports shop that has subsequently ceased trading.
They took the bike home, opened the packaging that the bike was supplied in by the
manufacturer and read the instruction booklet carefully before using it for the first time. The
customer is a professional violinist and decided to practise their violin at the same time as
trying out the exercise bike. After a couple of minutes the seat post on the bike collapsed.
The customer fell off the bike, broke their arm, smashed their glasses worth £150, and
caused extensive damage to their very expensive violin. The customer wants compensation
for all these losses and also the cost of a replacement bike. The customer has had the
bike inspected by an expert who believes that the seat post collapsed due to insufficient
Product Liability
165
welding on the bike. The expert believes that this defect would not have been apparent on
a visual inspection of the bike.
All the manufacturer’s products are sold subject to an exclusion of liability clause for all
losses, howsoever caused.

Answer 19

Which of the following statements best explains whether the manufacturer may be
liable for the customer’s losses in negligence?

A No, because the manufacturer did not owe a duty of care to the customer. The duty of
care was owed by the sports shop.

B No, because the customer will not be able to prove breach of duty of care by the
manufacturer.

C No, because the manufacturer will be able to rely on its exclusion of liability for all the
customer’s losses.

D Yes, because the customer is likely to succeed in proving liability for all their losses
except the cost of the bike.

E Yes, because the customer is likely to succeed in proving liability for all their losses
except the cost of the replacement bike and the damage to the very expensive violin.