Product Liability

Question 1

Explain the requirements to bring a claim under the narrow rule for product liability (known as the narrow rule from Donoghue v Stevenson).

Answer 1

1) D is a manufacturer;

2) Item causing thew damage is a product;

3) Claimant is a consumer;

4) Product reached the consumer in form in which it left the manufacturer with no reasonable possibility of intermediate examination.

Question 2

Define manufacturer for the purposes of the narrow rule.

Answer 2

Includes any person working in some way on a product before it reaches the consumer.

Question 3

Give some examples of what manufacturer (for the purposes of the narrow rule) has been deemed to include.

Answer 3

Repairers of products;

Installers of products;

Suppliers of products (in some instances).

Question 4

When does a supplier fall within the deciton of a manufacturer (for the purposes of the narrow rule)?

Answer 4

Suppliers may owe a duty of care under the narrow rule if circumstances are such that they ought reasonably to inspect or test the products which they supply (eg because the manufacturer has asked them to do so).

They would also owe duty if they actually know of the danger/ defect.

Question 5

Define product for the narrow rule.

Answer 5

Almost any item capable of causing damage.

Duty also extends to packaging, containers, labels and instructions for use which come with the product.

Question 6

Define consumer for the purposes of the narrow rule.

Answer 6

Includes:

1) The ultimate user of the product; and

2) Any one whom D should reasonably have in mind as likely to be injured by D’s negligence (ie neighbours in Donoghue v Stevenson terms).

Question 7

Explain the rule with regards to intermediate examination.

Answer 7

If there is reasonable prospect of someone making an intermediate examination of the product, then the manufacturer will not owe a duty of care under the Donoghue narrow rule.

Question 8

What is meant by intermediate examination?

Answer 8

Where another party examines, or has reasonable opportunity to examine and would be expected to do so, then the manufacturer will not owe a DOC under the narrow rule.

Question 9

Is there an exception to the intermediate examination rule?

Answer 9

Yes.

Where the defect or danger would not have been revealed by intermediate examination by a consumer or supplier (eg it is a hidden defect), the manufacturer will still owe a DoC.

Question 10

Would a product coming with a warning it must be tested before first use be sufficient for an opportunity for ‘intermediate examination’?

Answer 10

Yes.

As per Kubach v Hollands in such cases they would be exonerated from liability - with warning to test constituting opportunity for intermediate inspection.

Question 11

Does the narrow rule cover damage done to the product itself?

Answer 11

No.

This is deemed pure economic loss.

Question 12

How is breach of duty assessed in relation to the n arrow rule?

Answer 12

Whether their manufacturer has breached their duty as, for example, the reasonable diner beer manufacturer.

Question 13

Do warnings of dangers mean a manufacturer is ore likely to have complied with their duty of care?

Answer 13

Yes.

Question 14

What is the maxim of res ipsa loquitur?

Answer 14

Maxim to assist claimants in proving breach of duty where the facts are beyond their knowledge.

This is NOT available to use in cases of product liability.

Question 14

Explain the inference rule.

Answer 14

Where claimant can prove presence of a defect in the factory (eg harmful chemical) but not that there is anything wrong with the manufacturing process itself, the court will infer a breach of duty.

Burden of proof then shifts to D for this to be rebutted.

Question 15

How do remoteness and causation apply?

Answer 15

In the normal way.

Eg windscreen which shattered 12 months after delivery was deemed to have no causal link to manufacturer due to the time which elapsed.

Similarly, remoteness of damages applies.

Question 16

Is knowledge of the risk of danger/ defect by the claimant enough to amount to consent and absolve D from liability?

Answer 16

NO.

For this to be sufficient, D would need to prove C also willingly accepted the risk.

Question 17

Explain whether any liability can be exlucded by manufacturers.

Answer 17

No liability for death or PI can be excluded where manufacturer is in course of business or trade.

Liability to non-consumers can be excluded in relation other loss or damage if it satisfied the reasonableness test in UCTA.

Liability to consumers for other loss or damage can be excluded if it passes the fairness test in the CRA 2015.

Question 18

Does contributory negligence apply to the narrow rule?

Answer 18

Yes.

Question 19

What is the Consumer Protection Act 1987?

Answer 19

A additional cause of action to a claim in negligence where the narrow rule does not apply (note that damages cannot be recovered twice for the sae loss).

Question 20

Who can sue under the CPA 1987?

Answer 20

Anyone who can prove that they have suffered damage caused by a defect in a product.

Question 21

Explain the damage requirement for a claim under the CPA 1987.

Answer 21

1) Claims for death and PI. These are without limit. PI defined as including ‘any disease and any other impairment of a person’s physical or mental condition’.

2) Damage to private property that exceeds £275. Provided the full amount of loss or damage exceeds £275, full amount of loss or damage is recoverable. Claims for damage under £275 is not recoverable.

3) Damage caused by defective product to business property is outside the scope of the CPA 1987.

4) Cost of repairing or replacing defective product itself is not recoverable.

Question 22

Explain the slight difference in the causation requirement between the CPA 1987 route and the narrow rule route.

Answer 22

Under CPA 1987, claimant must show the defect caused the damage.

In negligence, claimant must show D’s breach of duty caused the damage.

Question 23

How is defect defined under CPA 1987?

Answer 23

Effectively means unsafe, ie that the safety of the product is not such as persons are generally entitled to expect.

As such, CPA 1987 applies to products which are unsafe, not merely defective.

Question 24

What factors will the court consider (under the CPA 1987) to determine their level of safety persons should be entitled to expect from products?

Answer 24

1) Presentation of product (including packaging, instructions, warnings etc).

2) The expected use of the product.

3) Age of the product in question.

Question 25

Define product for the purposes of CPA 1987.

Answer 25

Any goods or electricity and includes a product which is comprised in another product whether a component or raw material.

This includes, for exhale, component parts like an engine in a car.

Question 26

Explain decision in A v National Blood Authority.

Answer 26

Consumers entitled to to expect blood products are free from viruses, so even though there were no tests for diseases such as hepatitis C, the presence of this was deemed to have breached the CPA 1987.

Question 27

Who is liable if the component part if faulty?

Answer 27

Both the manufacturer or the whole product, and the manufacturer of the component part.

Question 27

What are the 4 categories of potential D under the CPA 1987?

Answer 27

1) Producer of the product (manufacturer) ;

2) Own brander

3) Importer;

4) Supplier.

Question 28

What is an own brander?

Answer 28

The party which puts their name or trademark on a product.

This means they are holding themselves out as a producer and therefore a potential defendant under the CPA 1987.

Question 29

When is a supplier (eg retailer) liable under the CPA 1987?

Answer 29

Where they are unable to meet c’s request to identify people involved in the chain of supply.

Suppliers are otherwise not liable under the act.

Question 30

Is liability under the CPA 1987 strict liability?

Answer 30

Yes.

Question 31

Will compliance with legal requirements on the part of the producer absolve them of the defect?

Answer 31

Yes so long as the defect was an inevitable result of compliance.

Question 32

Can defendant exclude or restrict any liability under the CPA 1987?

Answer 32

No.

Question 33

Explain the development risks defence.

Answer 33

Relevant in the area of drugs, medicine etc.

D can only rely on this defence is they can show they could not have discovered the defect via any info accessible anywhere in the world.

It also only applies to defects or risks that could not have been foreseen.