Product Liability

Question 1

What are the two relevant areas of law for product liability?

Answer 1

Negligence
Consumer Protection Act 1987

Question 2

To prove negligence in relation to product liability, what is the duty of care?

Answer 2

The narrow rule from Donoghue v Stevenson - must establish that:

o The defendant is a manufacturer
o The item causing damage is a product
o The claimant is a consumer, and
o The product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination

Question 3

Who constitutes a consumer? I.e. the “neighbours” principle from Donoghue v Stevenson

Answer 3

Anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant’s negligence

Question 4

What type of loss would not be covered by duty of care?

Answer 4

Pure economic loss, e.g. defective quality of product itself, reduction in value of product, cost of repairing

Question 5

Who has the onus of proving the duty has been breached?

Answer 5

The claimant

Question 6

What test is relevant for causation?

Answer 6

The “but for” test

Question 7

What test is relevant for remoteness?

Answer 7

The Wagon Mound test

Question 8

What defences are available for negligence in relation to product liability?

Answer 8

Consent - i.e. claimant aware of a defect in a product and continues to use it

Contributory negligence

Exclusion of liability - only possible for death / PI if liability arises outside the course of a business or trade

Question 9

Who can sue under the Consumer Protection Act 1987?

Answer 9

Anyone who can establish that:
1. They suffered damage
2. Caused by
3. A defect
4. In a product

Question 10

Is there any limit on the what constitutes damage in relation to death or PI, for a claim under the CPA?

Answer 10

No

Question 11

What amount must damage to property exceed before a claim can be brought under the CPA?

Answer 11

£275

Question 12

Is the cost of repairing or replacing the defective product itself recoverable under the CPA?

Answer 12

No, it is regarded as pure economic loss

Question 13

What circumstances are to be taken into account when assessing the level of safety persons generally are entitled to expect under CPA?

Answer 13

1. Get-up and presentation of the product
2. Expected use of the product
3. Age of product

Question 14

What is the restriction regarding “private use” for claims under CPA?

Answer 14

The property damaged must be for the private use of the claimant, i.e. wouldn’t be able to claim for a work computer

Question 15

Who are the 4 categories of potential defendant who can be liable under the CPA?

Answer 15

1. The producer, i.e. manufacturer
2. The “own-brander”, i.e. person putting name or trademark on product
3. The importer, i.e. from outside to within the UK
4. The “forgetful supplier”, i.e. supplier unable to identify any of the above

Question 16

What is the nature of the liability under the CPA?

Answer 16

Strict liability - only need to prove damage suffered, not tat is results from fault of carelessness on defendant’s behalf

Question 17

What defences are available against product liability under the CPA?

Answer 17

Defect was attributable to compliance with legal requirements

Defendant did not supply the product to another (i.e. obtained by theft)

Defendant supplied product outside course of business

Defect did not exist when defendant supplied the product

“Development risks” - defendant must prove that state of knowledge at time made defect undiscoverable

Contributory negligence