product liability

Question 1

what is product liability?

Answer 1

liability for damage caused by defective products- Consumer Protection Act 1987, and tort of negligence and suing for breach of contract

Question 2

how does the common law of negligence relate to product liability?

Answer 2

C must show that D owes a DoC which has been breached causing damage to C which is not too remote

Question 3

what is the narrow rule in Donoghue v Stevenson?

Answer 3

DoC in novel situations- neighbour principle known as wide rule, narrow rule says that there are circumstances in which the manufacturer would owe a duty of care to consumer

for a DoC to be established: D must be a manufacturer, item causing teh damage is a product, C is consumer and the product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination- this would mean there is no duty (Kubach)

Question 4

what is a manufacturer?

Answer 4

any person who works in some way on a product before it reaches teh consumer e.g. repairers (Haseldine),m installers (stennett) and suppliers (Andrews)

Question 5

when can suppliers owe a duty under the narrow rule?

Answer 5

circumstances where they ought reasonably to inspect or test products which they supply and if they know of a defect/danger

Question 6

what is a product?

Answer 6

almost any item which is capable of causing damage- duty includes packaging, containers, labels etc

Question 7

what is a consumer?

Answer 7

anyone who D should reasonably have in mind as likely to be injured by Ds negligence- neighbour principle

Question 8

what is intermediate examination?

Answer 8

lord Atkin- duty arising if there is no reasonable possibility of intermediate examination BUT if reasonable possibility of intermediate examination, then manufacturer will not owe duty of care under the narrow rule e.g. Kubach as manufacturer expected test to be carried out, there was reasonable possibility of it there was no duty but it must be a likelihood of examination taking place

Question 9

what is the scope of duty owed under the narrow rule

Answer 9

type of loss includes any injury to persons or damage to property done by the defect BUT if the only loss is the defective quality of the product itself, the reduction in value of the product or the cost of repair/replacing, it is not covered- Murphy v Brentwood as this is PEL

Question 10

how can this duty be breached?

Answer 10

duty is to exercise reasonable care- that of a reasonable manufacturer/reasonable engineer etc must look at magnitude of foreseeable risk, gravity of potential injury, cost and practicalities of precautions, can comply by giving adequate warning of danger

Question 11

who must prove there has been a breach?

Answer 11

Claimant- inference approach (Grant)- can infer that there is an issue with manufacturing process and D can rebut this presumption

Question 12

how are causation and remoteness considered in product liability?

Answer 12

but for test, intervening acts, wagon mound

Question 13

what defences are available?

Answer 13

volenti, contributory negligence (if are aware of danger and continue to use product)

Question 13

what is the consumer protection act 1987?

Answer 13

provides addition cause of action in claim in negligence

Question 14

who can sue under CPA?

Answer 14

s2(1) says need to establish they have suffered damage, caused by, a defect, in a product

doesn’t need to be a foreseeable victim

Question 15

what does ‘damage’ in s5 mean?

Answer 15

death or PI or any loss of or damage to any property (incl land)

the actual property itself that was defective is not recoverable as it is PEL

damage caused by defective product to business property is outside scope of CPA

if damage to private property exceeds £275, full amount of loss or damage is recoverable

Question 16

what does ‘caused by’ mean?

Answer 16

Claimant has burden of proving causation but C must show that the defect caused the damage, not the breach

if c can establish damages caused by defect, D will be liable for damage with no limit, BUT if rules on remoteness apply, then the direct consequences test from Re Polemis will apply rather than wagon mound

Question 17

what is a ‘defect’?

Answer 17

unsafe- the safety of the product is not such as persons generally are entitled to expect, circumstances must be taken into account to decide level of safety people are entitled to expect e.g. presentation of product, expected use of the product, age of the product

Question 18

what is a ‘product’?

Answer 18

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

Question 19

who are potential defendants?

Answer 19

producer of a product
own brander i.e. someone by putting their name or trademark on a product is not the producer, importer
supplier but only in circumstances in s(3)- only liable when unable to meet victims request to identify any of the people involved in chain of supply