product liability

Question 1

In the context of product liability, what is the significance of the case Donoghue v Stevenson?

Answer 1

The case of Donoghue v Stevenson established that a manufacturer owes a duty of care to those who use its products or come into contact with them. This duty extends not only to the final purchaser but also to other users of the product.

Question 2

What is the difference between a claim for negligence and a claim under the Consumer Protection Act 1987?

Answer 2

To succeed in a claim for negligence, it is necessary to show that the defendant was at fault by establishing a breach of duty of care. On the other hand, the Consumer Protection Act 1987 introduced a strict liability regime, making it easier for consumers to claim without the need to prove fault on the part of the defendant.

Question 3

What are the limits on the type of damage for which a claim can be brought in relation to product liability?

Answer 3

There are two limits on the type of damage for which a claim can be brought. First, no claim can be brought in relation to damage to property unless the sum to be awarded exceeds £275, excluding interest. Second, no claim for damage to property can be brought unless the property is ordinarily intended for private use/occupation/consumption and intended by the person suffering the loss or damage mainly for their own private use/occupation/consumption.

Question 4

Who can be held liable for damage caused by a defective product under the Consumer Protection Act 1987?

Answer 4

Under the Consumer Protection Act 1987, the manufacturer of a product, and possibly others along the supply chain, may be held liable for damage caused by a defective product.

Question 5

Who can bring a claim under the Consumer Protection Act 1987?

Answer 5

Under the Consumer Protection Act 1987, anyone suffering damage from a defective product can bring a claim, whether or not they purchased or used the product. The Act does not limit the protection to people who purchased or used the product.

Question 6

What does a claimant need to show in order to bring a claim under the Consumer Protection Act 1987?

Answer 6

To bring a claim under the Consumer Protection Act 1987, a claimant needs to show that the product was defective and not such as persons are generally entitled to expect, taking into account warnings, packaging, and expected use. There is no need to show fault on the part of the defendant.

Question 7

What are the available defences under the Consumer Protection Act 1987?

Answer 7

The available defences under the Consumer Protection Act 1987 include the defence that the defect did not exist in the product at the relevant time and the defence that the state of scientific and technical knowledge was not such that a producer might be expected to have discovered the defect.

Question 8

What are the key principles of product liability under the Consumer Protection Act 1987?

Answer 8

Under the Consumer Protection Act 1987, a valid claim requires a product with a defect that causes damage. The persons liable for the damage include the producer of the product, anyone who has held themselves out as the producer, or any person who has imported the product into the UK from outside in the course of business. Defences to product liability claims include compliance with legal requirements, non-supply of the product, absence of profit motive, absence of defect at the relevant time, lack of scientific and technical knowledge, and defects in subsequent products.

Question 9

What is the basis for bringing a claim in negligence in the context of product liability?

Answer 9

In the context of product liability, a claim in negligence requires establishing a duty of care, breach of that duty, and causation. Manufacturers owe a duty of care to those who use their products, as established in the case of Donoghue v Stevenson.

Question 10

What are the defences available to a party in a product liability claim under the Consumer Protection Act 1987?

Answer 10

A party in a product liability claim under the Consumer Protection Act 1987 can avoid liability if they can prove that the defect did not exist in the product at the relevant time or that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description might be expected to have discovered the defect if it had existed in their products while under their control. Contributory negligence is also available as a defence.

Question 11

What is the significance of the term ‘defect’ in the Consumer Protection Act 1987?

Answer 11

According to the Consumer Protection Act 1987, a defect in a product exists if the safety of the product is not what people generally are entitled to expect. The Act provides guidance on what people are entitled to expect and considers relevant case law to distinguish the meaning of ‘defect’ from the standard of care owed in negligence.

Question 12

What is the limitation period for bringing a claim under the Consumer Protection Act 1987?

Answer 12

The claim must be brought within three years from the later of the date the injury and/or damage occurred or when the claimant became aware or should reasonably have become aware of the damage. There is a long stop of ten years after the product was put into circulation by the defendant, which represents an absolute defence to such actions after this time.

Question 13

What is the difference between claims under the Consumer Protection Act 1987 and liability in negligence?

Answer 13

Claims under the Consumer Protection Act 1987 and liability in negligence are not mutually exclusive. A single set of facts can give rise to claims under both the CPA and in negligence. Both claims could be brought in the same proceedings, but if both claims succeed, the claimant cannot be compensated for the same losses twice.

Question 14

How is ‘damage’ defined under the Consumer Protection Act 1987?

Answer 14

Under the Consumer Protection Act 1987, ‘damage’ includes death, personal injury, and any loss or damages to any property. However, pure economic loss cannot be recovered.

Question 15

What is the meaning of ‘producer’ under the Consumer Protection Act 1987?

Answer 15

Under the Consumer Protection Act 1987, ‘producer’ means the manufacturer for manufactured products, the person who won or abstracted the product for products that are won or abstracted, and the person who carried out the process for products where the essential characteristics are attributable to a process carried out.

Question 16

Who can be held liable for damage caused by a defective product under the Consumer Protection Act 1987?

Answer 16

Under the Consumer Protection Act 1987, those liable for damage caused by a defective product include the producer of the product, anyone who has held themselves out as the producer, or any person who has imported the product into the UK from outside in the course of business. If more than one person is liable, they will be jointly and severally liable.

Question 17

What are some of the defences available in product liability cases under the Consumer Protection Act 1987?

Answer 17

Defences under the Consumer Protection Act 1987 include compliance with legal requirements or retained EU obligations, non-supply of the product, absence of profit motive, absence of defect at the relevant time, lack of scientific and technical knowledge, and defects in subsequent products. Attempting to exclude or limit liability is prohibited.

Question 18

What is the effect of Section 2(3) of the Consumer Protection Act 1987?

Answer 18

Section 2(3) of the Consumer Protection Act 1987 provides that someone who supplied a defective product to any person will be liable for the damage caused by the defect if the person suffering damage asks for details of the producer/importer within a reasonable time and when they cannot identify the producer/importer themselves, and the supplier fails to identify that person. This ensures that there is always someone in the United Kingdom who falls within Section 2(2) in relation to goods purchased in England and Wales.

Question 19

What is the difference between the standard of care in negligence and the expectations of a product under the Consumer Protection Act 1987?

Answer 19

The standard of care in negligence requires taking reasonable care, while the Consumer Protection Act 1987 sets a higher bar for manufacturers by considering what people are generally entitled to expect from a product. This means that the Act demands more from manufacturers than traditional negligence requires.

Question 20

What are the key elements required to establish liability under the Consumer Protection Act 1987?

Answer 20

To establish liability under the Consumer Protection Act 1987, it is necessary to show that the product was defective and not such as persons are generally entitled to expect, taking into account warnings, packaging, and expected use. It is not necessary to show fault on the part of the defendant.

Question 21

The Consumer Protection Act 1987 aimed to introduce a strict liability regime, meaning

Answer 21

A regime where parties could be found liable without it being necessary to show fault on their part

Question 22

Under the Act, liability potentially arises in relation to damage caused by a ‘defect’ in a product. A product is defective if it…

Answer 22

is not as safe as people are generally entitled to expect

Question 23

John buys a drying machine (for drying clothes). The drying machine catches fire during normal use, damaging the house owned by him and his wife (the damage exceeds £2,000). The attendance of the fire service stops customers attending a sandwich shop next door, and so the sandwich shop suffers a substantial loss of profits. Who can potentially bring a claim under the Act?

John and his wife

No party can claim.

John, his wife and the sandwich shop.

Just John.

Answer 23

John and his wife

Correct. John can claim because he has suffered property damage in excess of £275 and the property is intended for private use. His wife can claim because she has suffered property damage in excess of £275 and the property is intended for private use – it doesn’t matter that she didn’t purchase the product. The sandwich shop cannot claim – it has not suffered death, personal injury or damage to any property (even if it had suffered damage to any property it is unlikely that property would have been intended and ordinarily intended for private use).

Question 24

A pharmaceutical company produces medication for a rare blood disorder. The medication is subsequently found to be defective causing serious side effects to its consumers. At the time the product was produced the state of scientific and technical knowledge was not such that would have enabled the medication to be produced without the side effects. Can the company rely on this as a defence under the Consumer Protection Act 1987?

No, there are no defences to a claim under the CPA 1987.

The defence under s4(1)(e) CPA 1987 could only be relied upon if the company could show that the side effects caused were not reasonably foreseeable.

No, the defence under s4(1)(e) CPA 1987 only applies where the state of scientific and technical knowledge was not such that the defect could have been discovered.

Yes, the defence under s4(1)(e) CPA 1987 could be relied upon.

Answer 24

No, the defence under s4(1)(e) CPA 1987 only applies where the state of scientific and technical knowledge was not such that the defect could have been discovered.

Correct. Section 4(1)(e) refers to an inability to discover, not an inability to fix. If a manufacturer is aware of a defect but the state of scientific / technical knowledge is such that the defect cannot be fixed, this will not be a defence.

Question 25

Can exemption clauses exclude or limit liability for claims under the CPA 1987?

Exemption clauses can only exclude or limit liability for property damage under the Act

Exemption clauses can only exclude or limit liability under the Act to the extent that it is reasonable to do so.

Yes. It is possible to exclude and limit liability under the Act.

No. It is not possible to exclude or limit liability under the Act.

Answer 25

No. It is not possible to exclude or limit liability under the Act.

Question 26

Donoghue v Stevenson [1932] AC 562 is authority for the proposition that a manufacturer owes a duty of care to those people who use its products. Does a manufacturer owe a duty to a party that neither bought nor used the product, but who comes into contact with it?

Answer 26

Yes

Question 27

Applying the rules of negligence, can a party recover in negligence in relation to the loss of the product itself?

Answer 27

No – this would ordinarily be considered pure economic loss, and not recoverable.

Question 28

When assessing whether a manufacturer has breached any duty owed, the key question is…

Answer 28

Whether the manufacturer fell below the standard of a reasonably competent manufacturer.

Question 29

A man buys some moisturiser. The packaging states ‘test the product on a small area of skin and wait 15 minutes before use all over the body. Do not use if a rash occurs’. The man tests the moisturiser on his arm and waits 5 minutes without any reaction. He then applies it to the rest of his body and later experiences a severe rash.

Which of the following statements most accurately reflects whether the man can successfully bring a claim in the tort of product liability under the Consumer Protection Act 1987?

The claim will likely succeed because the warning clearly explains what consequences may occur after the skin test.

The claim will likely succeed because the warning is on the packaging not the product itself.

The claim will not likely succeed. The warning is sufficiently clear about how long to wait and it was not reasonable for the man to wait for only 5 minutes.

The claim will likely succeed because the manufacturer produced a defective product.

The claim will likely succeed. The warning is not sufficiently clear about how long to wait and it was reasonable for the man to wait for only 5 minutes.

Answer 29

The claim will not likely succeed. The warning is sufficiently clear about how long to wait and it was not reasonable for the man to wait for only 5 minutes.

Correct. It seems unreasonable to only wait 5 minutes. If the manufacturer has given an adequate warning which the claimant has not followed then the manufacturer will likely successfully be able to argue that the product was not defective. The warning would be a reason for the man’s claim to fail because he was given adequate warning of what to do and what consequences to watch out for. A claim will not necessarily succeed simply because the warning was not on the product itself.

Question 30

An NHS Trust is being sued by a number of patients under the Consumer Protection Act 1987. The patients claim to have been transfused with blood infected by hepatitis in one of the Trust’s hospitals. The Trust wishes to say in its defence that it took all reasonable steps to prevent such a thing occurring, and that in any event the risk of infection was very small. The Trust wishes to know whether the blood was a defective product. Which one of the following is the best advice to give as to the question the court will ask itself when determining whether the blood was defective?

In deciding whether or not the blood was defective, the court will judge the Trust against the standard of the reasonably competent NHS Trust.

In deciding whether or not the blood was defective, the court will examine the expectations of the individual claimants in this litigation.

In deciding whether or not the blood was defective, the court will have regard to the expectations patients generally have a right to have.

In deciding whether or not the blood was defective, the court will ask itself whether the Trust took as much care as its resources would allow to guard against infection.

In deciding whether or not the blood was defective, the court will consider that the state of scientific knowledge was not such as could have allowed the risk of infection to be discovered.

Answer 30

In deciding whether or not the blood was defective, the court will have regard to the expectations patients generally have a right to have.

Correct. Under Section 3 of the Consumer Protection Act 1987 we find the test for whether a product is defective and this option is the closest to the wording of that test. Considering the other answers, it is the expectations of ‘persons generally’ which are crucial, not the expectations of the particular claimants. Neither the concept of ‘the standard of the reasonably competent NHS Trust’ nor an assessment of the Trusts resources are part of the test. The ‘state of scientific knowledge’ may be relevant to a defence, but not to considering liability in the first instance.

Question 31

A manufacturer makes a defective car and sells it to a car dealership. The car dealership sells the car to a woman. The brakes on the car malfunction due to the defect and the woman suffers serious injuries in a car crash from which she dies several weeks later. The woman’s estate asks the car dealership for the name of the manufacturer because they have no other way of ascertaining it. The car dealership refuses to disclose the name of the manufacturer.

Which of the following statements most accurately reflects the claim(s) that the woman’s estate can currently bring in the tort of product liability under the Consumer Protection Act 1987?

The woman’s estate cannot bring any claims because claims cannot be brought on behalf of a dead person’s estate.

The woman’s estate can only bring a claim against the car dealership.

The woman’s estate can only bring a claim against the manufacturer.

The woman’s estate cannot bring any claims because whilst claims can in principle be brought on behalf of a dead person’s estate, in this particular case, there is no cause of action.

The woman’s estate can bring a claim against the manufacturer and the car dealership.

Answer 31

The woman’s estate can only bring a claim against the car dealership.

Correct. A claim can be brought against the car dealership as a supplier of the defective product that refuses to identify the manufacturer under s 2 (3) of the Consumer Protection Act 1987. A claim cannot currently be brought against the manufacturer because the identity of the manufacturer is not known. Claims can be brought on behalf of a deceased person’s estate.

Question 32

A woman buys a new steam cleaner. Two weeks later, while she is using it, it overheats and explodes causing irreparable damage to her wedding dress which had been hanging in the room. The dress is ruined and the wedding, due to be held the next day, has to be postponed. She purchases a replacement steam cleaner. Which of the woman’s losses are in principle recoverable if she brings a successful negligence claim against the manufacturer of the steam cleaner?

The woman will be able to claim for the damage to the dress and the costs of postponing the wedding, but not for the cost of replacement of the steam cleaner.

The woman will not be able to claim for the cost of replacement of the steam cleaner, the wedding dress nor the costs of postponing the wedding.

The woman will be able to claim only for the cost of replacement of the steam cleaner.

The woman will be able to claim only for the costs of postponing the wedding.

The woman will be able to claim for the damage to the dress, the costs of postponing the wedding and the cost of replacement of the steam cleaner.

Answer 32

The woman will be able to claim for the damage to the dress and the costs of postponing the wedding, but not for the cost of replacement of the steam cleaner.

Correct. The cost of repair or replacement of an inherently defective product itself is not claimable in general negligence; this is regarded as pure economic loss. A claim can also be brought in relation to the ruined dress. It may be arguable that the wedding did not have to be postponed, just because the dress was ruined, in which case the postponement costs may not be recoverable, but the woman would be best advised to make the claim.

Question 33

A chemist is being sued by several customers under the Consumer Protection Act 1987 who claim that a brand of the chemist’s own cough mixture has caused allergic reactions leading to fever and a painful rash. The chemist will say it has taken all reasonable care in the manufacturing process, and the medical evidence is virtually unanimous in saying that there is no known risk of such a reaction through taking this cough mixture. Only one article, published in Mandarin by a final year biochemistry undergraduate on his personal blog (which has 10,000 regular visitors) sets out research which indicates a 2% risk of such a reaction. This article was published one week ago. The chemist wishes to rely on the ‘development risks’ defence. Which one of these is the most accurate advice to give?

The defence might apply. The court will have to consider whether the blog article is sufficiently mainstream to bring the matter within the state of scientific knowledge.

The defence will apply as a reasonable body of medical opinion says there is no risk.

The defence will apply. It does not matter whether or not the blog article is considered mainstream in this case.

The defence will not apply as the risk has now been discovered.

The defence will apply. The risk has been published and is therefore within the state of scientific knowledge.

Answer 33

The defence will apply. It does not matter whether or not the blog article is considered mainstream in this case.

This is correct. The development risks defence judges the state of scientific knowledge at the time the product was put into circulation, so this article is not included in it. The discussion about whether the blog article is sufficiently mainstream to prevent the defence is therefore not relevant. Considering the other answers. The ‘reasonable body of medical opinion’ sounds more like negligence and the Bolam test, but the Consumer Protection Act is a different regime. ‘Discovering’ the risk or something being published about it is not enough to prevent the defence from applying.

Question 34

To show duty of care for occupier liability?

Answer 34

To show a duty of care under the narrow rule the claimant must establish that:
*
the defendant is a ‘manufacturer’;
*
the item causing damage is a ‘product’;
*
the claimant is a ‘consumer’; and
*
the product reached the consumer in the form in which it left the manufacturer with no
reasonable possibility of intermediate examination.

Question 35

Who can sue under Consumer Protection Act 1987?

Answer 35

Anyone who can establish the following can sue under the CPA 1987:
*
that they have suffered damage
*
caused by
*
a defect
*
in a product.

Question 36

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 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.
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.

Answer 36

Answer
Option E is correct.
Option A is wrong because the duty of care will be owed by the manufacturer. Shops and
other suppliers will rarely owe a duty of care in negligence to their customers. The exception
to this is where the shop is expected to carry out an intermediate examination of the goods.
There is nothing to suggest that the manufacturer expected the sports shop to do this. In fact,
the bike appears to have been supplied in packaging by the manufacturer and, according to
the expert, an inspection of the bike would not have revealed the defect in any event.
Option B is wrong because, on the facts given, it cannot be said that the customer will
definitely not be able to prove breach of duty. There are facts on which the court can base
its inference of breach of duty, ie an expert who believes that the seat post collapsed due
to insufficient welding on the bike. The court will infer breach of duty unless the manufacturer
can rebut the inference of breach of duty by proving that the defect was not due to the
defendant’s lack of care but to some later problem, for example the claimant’s own misuse
of the product. This is unlikely to be the case on the facts. If the bike had been safe then the
claimant’s actions would probably not have been unreasonable – just a little unusual.
Option C is wrong because the manufacturer cannot exclude liability for the personal injury
due to the Consumer Rights Act 2015 and they will only be able to exclude liability for the
other losses if the exclusion is deemed fair under the Act.
Option D is wrong, because, while the customer may succeed in negligence for all their losses
excluding the cost of the bike (as it is pure economic loss), a court may consider that the
damage to the violin is too remote. It may not be reasonably foreseeable that a person would
be playing a violin on an exercise bike.

Question 37

Question 2
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 an exercise
bike from a sports shop. 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. After a couple of minutes the seat post on the bike collapsed.
The customer fell off the bike, broke their arm, and smashed their glasses worth £150.
They also caused extensive damage to their very expensive violin that was near the bike
at the time. The customer is a professional violinist and wants compensation for all these
losses, their income lost as a result of not being able to play the violin and the cost of a
replacement bike.
The manufacturer has made thousands of this particular exercise bike without any
complaints of this nature. They have investigated their production records and are confident
that they are not at fault in any way.
All the manufacturer’s products are sold subject to an exclusion of liability clause for all
losses, howsoever caused.
Which of the following statements best explains whether the manufacturer may be
liable for the customer’s losses under the Consumer Protection Act 1987?
A Yes, because the manufacturer will probably be held liable for all the losses except the
cost of the replacement bike and the cost of the glasses.
B Yes, because the manufacturer will probably be held liable, but only for the personal
injury and the customer’s lost income.
C No, because the customer should be bringing a claim against the sports shop in
contract.
D No, because the manufacturer will be able to rely on its exclusion of liability for all the
customer’s losses if the clause is fair.
E No, because the customer will not be able to prove that the manufacturer was at fault.

Answer 37

Answer
Option B is correct. The customer suffered ‘damage’ for the purposes of the CPA 1987 as they
have broken their arm, and their consequential lost earnings, due to their inability to play the
violin with a broken arm. They will not be able to claim for the cost of repairing or replacing
the bike as damage to the defective product itself is excluded by the Act. Neither will they
be able to recover the cost of the damaged violin if it is regarded as ‘business’ property. The
cost of replacement glasses will not be recoverable as they are worth less than £275. The
customer’s recoverable losses were caused by a ‘defect’ as the safety of the bike was not
such as persons generally were entitled to expect in all the circumstances. The bike is clearly
a ‘product’ for the purposes of the CPA 1987. The customer will be able to claim against the
manufacturer of the bike as the producer of the product.
Option A is wrong as it fails to consider that the violin will not be recoverable as it is business
property.
Option C is wrong because, while the customer would also have a claim in contract against
the shop, this does not mean that the customer is barred from bringing an alternative claim
against the manufacturer under the CPA 1987 and/ or negligence.
Option D is wrong because it is not possible to exclude liability under the CPA 1987; the
question of whether the exclusion is fair is irrelevant.
Option E is wrong because liability under the CPA 1987 is strict. It is irrelevant, therefore, that
the manufacturer may have evidence that they are not at fault (subject to the defence that the
defect did not exist when the defendant supplied the product).

Question 38

Question 3
A client has sought advice of a solicitor arising from the following events. The client lives in
a ground floor flat. The client works from home as an IT consultant and their very expensive
laptop, which they use for their work, has been damaged beyond repair. This was caused
by water from a washing machine in the flat upstairs leaking into their flat. The owner of
the upstairs flat’s washing machine was brand new and was installed by an independent
contractor. It appears that the contractor had forgotten to correctly tighten one of the hoses
on the washing machine and this is why the water leaked into the client’s flat.
Which of the following statements best explains whether the client may be successful in
a claim for the cost of their laptop against the independent contractor under both the
Consumer Protection Act 1987 (CPA 1987) and negligence?
A No, because it is not generally possible for a claim to be commenced under both the
CPA 1987 and negligence; claimants must choose between the two claims.
B No, because, while a claim under the CPA 1987 may succeed as the washing machine
was defective, the claim in negligence is bound to fail as the independent contractor
was not a manufacturer.
C No, because the claim under the CPA 1987 is bound to fail as the independent
contractor is not a potential defendant under the CPA 1987. The claim under
negligence may succeed.
D Yes, because liability under the CPA 1987 is strict and the claim under negligence may
also succeed.
E Yes, because the independent contractor is a potential defendant under the CPA 1987
and liability under the CPA 1987 is strict. The claim in negligence may also succeed.

Answer 38

Answer
Option C is correct. The CPA 1987 claim is bound to fail as the independent contractor
is not one of the potential defendants under the CPA 1987 as they are not a producer of
the product, an ‘own-brander’, an importer or a ‘forgetful’ supplier. (It is also questionable
whether the washing machine itself was ‘defective’ because, if it was unsafe, this was due
to the actions of the installer.) The negligence claim is likely to succeed. The independent
contractor is a ‘manufacturer’ who owes a duty to the client as a ‘consumer’ (it is reasonably
foreseeable that the client would be affected by the contractor’s actions and there is nothing
to suggest that an intermediate examination of the contractor’s work would be expected). The
contractor’s breach of duty by failing to tighten a hose has caused reasonably foreseeable
harm to the client.
Option A is wrong because it is generally possible for a claim to be commenced under both
the CPA 1987 and negligence. The claimant cannot, however, recover damages twice over for
the same loss.
Option B is wrong because the claim under the CPA 1987 is bound to fail for the reasons
discussed above. Option B is also wrong because the term ‘manufacturer’ (under the narrow
rule from Donoghue v Stevenson) has been interpreted to include installers. The independent
contractor is, therefore, a potential defendant in negligence.
Option D is wrong because, while liability under the CPA 1987 is strict, the independent
contractor is not one of the potential defendants under the CPA 1987.
Option E is incorrect for the same reason as option D.

Question 39

Question 21

A man is using his new mountain bike which is a state of the art product. It has a specially developed metal frame which enhances the bike’s performance over rough terrain. However, due to metal corrosion in some of the screws, which was unforeseeable, the handle bar snaps in two when the man is using it. He breaks both wrists.

Which of the following best explains whether the man can recover damages for his injuries under the Consumer Protection Act 1987?

A. Yes, because the bike is defective.

B. Yes, because there has been a breach of the duty of care.

C. Yes, because his injuries are not too remote.

D. No, because the injuries were not foreseeable.

E. No, because damages for personal injuries are not awarded under the Consumer Protection Act.

Answer 39

A - Yes, because the bike is defective.