Product liability Flashcards
What are the 2 main grounds for product liability claims?
- Claims under the Consumer Protection Act 1987 (‘CPA’).
- And liability in negligence.
These are not mutually exclusive – a single set of facts can give rise to claims both under the CPA and in negligence, and both claims could be brought in the same set of proceedings
What are the 4 elements which need to be established for product liability under CPA 1987?
To establish liability you need:
1. A product
2. With a defect
3. That causes damage
4. Persons under s2(2) will be liable
What kind of liability regime arises under CPA 1987?
strict liability -> parties can be found liable without it being necessary to show fault on their part
When does product liability under CPA 1987 arise?
s.2(1): ‘where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage..’
For product liability to arise the product defect must cause damage. What kind of losses are recoverable under section 5(1)?
- Death or personal injury
- Property damage -> Only if this exceeds exceeds £275 (s.5(4) CPA). Moreover, no claim for property damage can be brought unless the property is ordinarily intended for private use or occupation or consumption, and intended by the person suffering the loss or damage mainly for their own private use/occupation or consumption. (s.5(3) CPA).
- Consequential economic loss
What counts as a product ‘defect’ under s3(1) CPA 1987?
defect in a product if the safety of the product is not such s persons generally are entitled to expect.
- expectation is objective, reviewed broadly
- ‘fault’ / reasonable care of the manufacturer is not important; focus is on the expected safety
-> example: A v National Blood Authority
- Hepatitis C litgation
- held in favour of C who had had transfusions with contaminated blood; failure to screen the blood before; blood considered a product; contamination constituted the defect
What are some of the main things a court will considering when considering the ‘defect’ element under s3(1) CPA 1987?
there is a defect in a product if the safety of the product is not such as persons generally are entitled to expect.
- The manner/purposes for which the product has been marketed;
- What might reasonably be expected to be done with the product;
- The time when the product was supplied by the producer.
Can pure economic loss be recovered under CPA 1987?
No
Note the emphasis on ‘consumer’ protection: you can’t recover for damage to property used for business purposes, and obviously a business cannot itself suffer personal injury or death There is not much a business can get out of the CPA.
Under CPA 1987, who can be liable for damages?
(a) The producer of the product;
(b) Any person who has held themselves out as being the producer; or
(c) Any person who has imported the product into the UK from outside of the UK in the course of business.
Section 1(2) of the CPA tells us who the ‘producer’ is:
- for products manufactured, the manufacturer;
- for products won or abstracted like coal, the person who won/abstracted it;
- for products to which neither applies, but where the essential characteristics are attributable to a process carried out (like agricultural produce), the person who carried out the process is the producer.
Section 4 CPA 1987 provides for the main defences to product liability - when are these available?
(a) Where the defect is attributable to compliance with any requirement imposed by or under any enactment or with any retained EU obligation; or
(b) Where the person proceeded against, did not at any time supply the product to another; or
(c)
(i)Where the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person’s; and
(ii)that section 2(2) does not apply to that person or applies to him by virtue only of things done otherwise than with a view to profit; or
(d) Where the defect did not exist in the product at the relevant time; or
(e) Where the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control; or
(f) that the defect—
(i)constituted a defect in a product ( “the subsequent product”) in which the product in question had been comprised; and
(ii) was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product.
+ contributory negligence
Can liability to CPA 1987 be limited or excluded?
No (section 7 CPA 1987)
What is the main limitation provisions for bringing a claim under CPA 1987?
Claim must be brought within 3 years from the later of:
a) date of injury/ damage occurred, or;
b) when C became aware/ should have reasonably become aware of the damage
What is the long-stop date for bringing a claim under CPA 1987
10 years after the product was put into circulation by D.
This acts as an absolute defence.
