Product liability

Question 1

What is product liability?

What two claims can be made at the same time?

Answer 1

Statutory basis for claiming for damage caused by defective products

Negligent and breach of contract claims can be made at same time

Question 2

Is product liability a strict liability regime?

Answer 2

Yes - parties can be found liable without it being necessary to show fault on their part

Question 3

What is the basis for a claim under the Consumer Protection Act 1987 (CPA) for product liability?

Wholly or partly

Answer 3

Where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for damage

Question 4

What is a ‘product’?

Answer 4

Any goods or electricity - includes product which is comprised in another product (e.g. component part of raw material e.g. computer chip)

Basically any goods or something it contains

Question 5

When will the safety of the product mean there is a ‘defect’?

Answer 5

If the safety of the product is not such as persons generally are entitled to expect

Children’s toys are more safe than power drills

Question 6

How is ‘entitled to expect’ decided?

Answer 6

• Manner/purposes for which it has been marketed/packaged (cutlery for younger children safer than cutlery for adults)
• What is reasonably expected to be done with/in relation to product (e.g. should not microwave wet towel)
• Time when product was supplied by producer to another (e.g. some products safe when put into circulation but deteriorate to become less safe)

A warning might also be expected to be given for hazards re the product

Richardson - court rejected C’s action for ‘defective condom’ that led to pregnancy on basis that D did not claim product to be 100% effective

No warning in Abouzaid - C injured when attaching sleeping bag to pushchair and elastic strap sprung into eye causing partial loss of vision - product defective because it was supplied with a design permitting risk to arise without giving a warning

Question 7

What is the difference between the CPA (product liability law) and standard rules of negligence?

Answer 7

CPA demands considerably more from manufacturers than traditional negligence (through strict liability)

A - Cs sued National Blood Authority under CPA as a result of personal injuries arising from being transfused with blood infected by hepatitis - D argued public was only entitled to expect it had taken reasonable care that blood was safe which it had done - court disagreed and set standard higher; patient undergoing transfusion is legitimately entitled to exepct they will not be given infected blood (to hold otherwise would be to take strict liability out of strict liability regime)

Question 8

What is ‘damage’? What does it not include?

As in damage caused by the product

Answer 8

• Damage = Death, personal injury or any loss or damages to any property
• Does not include pure economic loss, product itself, or damage to property which is not meant to be privately used/consumed

Question 9

What is the limit on damage to property by a defective product? What must property be ordinarily intended for for a claim to be brought?

I.e.2 instances where no claim allowed

Answer 9

1. No claim re damage to property unless sum exceeds £275 excluding interest
2. No claim unless property is ordinarily intended for private use/occupation/consumption

Second limit = losses suffered by business not recoverable

Question 10

What 3 parties are liable for product liability damage? Can only one of them be liable?

Answer 10

1. Producer
2. Anyone holding themselves out to producer
3. Any person who has imported the product to UK from a place outside the UK in course of business/to supply it to another

I.e. all 3 parties can be liable (inc company outside UK)

Third point ensures there will always be someone in UK who can be a producer (importer)

Question 11

Who is a ‘producer’?

3 types

Answer 11

1. Manufacturer (where goods made)
2. Person who won/abstracted it (things extracted from ground)
3. Person who carried out the process (things that are the result of a process e.g. agriculture)

Question 12

When can a supplier be held liable for product liability damage?

Answer 12

If person suffering damage asks for details of producer/importer within a reasonable time and when they cannot identify the producer/importer themselves

Supplier example: retailer selling products they did not produce

Question 13

If a supplier (e.g. retailer) wants to avoid being liable for defects for products which it sells what does it need to be able to do?

Answer 13

Tell someone suffering damage who produced/imported goods so person suffering damage can pursue them instead

Person may still have contractual claim against retailer

Question 14

Can more than one person be liable for the same claim for damage under the CPA?

Answer 14

Yes - they will be jointly and severally liable

Question 15

Who can bring a claim under the CPA? Who cannot?

Answer 15

Consumer - not businesses

Question 16

Must a C have used/purchased the product? What if the product was bought by a business (who cannot sue) and the damage spills on to property of consumer?

Answer 16

No! Anyone suffering damages as a result can sue (even if product was bought by a business who cannot sue and the damage spills on to property of consumer)

Question 17

What are the 2 defences available for product liability?

Answer 17

1. The defect did not exist in the product at the relevant time
2. The state of scientific/technological knowledge at relevant time was not such that a producer (of products of same description as product in question) might be expected to have discovered the defect if existed when under his control

Re 2 - not a defence if aware of defect but knowledge is such that defect cannot be fixed

Question 18

What if the producer is aware of the defect but scientific/technical knowledge means defect cannot be fixed?

Answer 18

This is not a defence

Question 19

Can exemption clauses be used for product liability?

Answer 19

No

Remember they also cannot be used for implied terms under CRA - so consistency here (cf SoGA where they can be subject to reasonableness)

Question 20

What is the limitation period for bringing a claim?

Answer 20

3 years from the later of…

1. The date the injury and/or damage occurred
2. When the C became aware or should reasonably have become aware of the damage

Question 21

What is the long stop period?

Answer 21

Absolute defence for D if claim brought after 10 years since product put into circulation

But can still claim in negligence

Question 22

What is the difference between CPA product liability claim and contract or negligence claim?

Answer 22

• Protection not limited to those in the contract (don’t have to have purchased product)
• Foreseeability of harm not needed like in a negligence claim
• Causation of ‘wholly or partially’ by defect is simpler than negligence causation

Question 23

Now looking at claiming negligence at common law (not CPA)

To whom does a manufacturer owe a DOC for a negligence claim? What can ‘manufacturer’ extend to and when?

Answer 23

• Duty to all users of product, not just final purchaser (do not have to have purchased the product)
• ‘Manufacturer’ can include repairers, suppliers and distributors where it was reasonable in circumstances to inspect product

Question 24

What is needed to establish breach of the manufacturer’s duty of care?

Answer 24

Presence of defect (proved by C) in product will usually be sufficient evidence

But does not always show they fell below standard of care

Question 25

What are the rules of casuation re negligence claim for a defective product?

Answer 25

The usual principles

Question 26

What is the effect of intermediate inspection on the manufacturer’s responsibility?

Answer 26

If goods were going to be examined some point between manufacture and use by consumer, any harm caused to consumer is not manufacturer’s responsibility

Question 27

When will manufacturer be liable even in the case of an intermediate inspection?

Answer 27

Manufacturer liable if they have no reason to contemplate an intermediate inspectiion

Intermediate examination is a ‘reasonable probability’

Question 28

Is a warning to test before use/use product in particular way enough to break chain of causation?

Answer 28

Yes! E.g. hairdresser fails to test hair dye in accordance with instructions - absolved manufacturers from liability