Product Liability Flashcards
Can a party bring a claim on the basis of both negligence and the Consumer Protection Act 1987?
(a)
No
(b)
Yes
(b) Yes
The Consumer Protection Act 1987 aimed to introduce a strict liability regime, meaning:
(a)
A regime which increased the protections available to consumers, beyond those under the general rules of negligence.
(b)
A regime where parties could be found liable without it being necessary to show fault on their part
(c)
A regime which applies to all manufacturers / producers.
(d)
A regime which holds a manufacturer strictly liable for all losses which it causes, regardless of the normal rules on remoteness.
(b) A regime where parties could be found liable without it being necessary to show fault on their part
None of the other explanations reflect the meaning of ‘strict liability’, although it is true that the Act aimed to increase the protections available to consumers, beyond those under the general rules of negligence.
Under the Act, liability potentially arises in relation to damage caused by a ‘defect’ in a product. A product is defective if it…
(a)
causes loss other than by the negligence / carelessness of the user.
(b)
is not fit for the purposes for which it is being used.
(c)
is not as safe as people are generally entitled to expect
.
(d)
is not fit for the purpose for which it was designed.
(c) is not as safe as people are generally entitled to expect
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?
(a)
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.
(b) No, there are no defences to a claim under the CPA 1987.
(c)
Yes, the defence under s4(1)(e) CPA 1987 could be relied upon.
(d)
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.
(d) 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.
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.
Can exemption clauses exclude or limit liability for claims under the CPA 1987?
(a)
Exemption clauses can only exclude or limit liability for property damage under the Act
(b)
Yes. It is possible to exclude and limit liability under the Act.
(c)
No. It is not possible to exclude or limit liability under the Act.
(d)
Exemption clauses can only exclude or limit liability under the Act to the extent that it is reasonable to do so.
(c) No. It is not possible to exclude or limit liability under the Act.
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?
(a)
Just John.
(b)
No party can claim.
(c)
John and his wife
(d)
John, his wife and the sandwich shop.
(c) John and his wife
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).
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?
(a)
Yes
(b)
No
(a) Yes
Applying the rules of negligence, can a party recover in negligence in relation to the loss of the product itself?
(a)
Yes – this loss is highly foreseeable.
(b)
No – this would ordinarily be considered pure economic loss, and not recoverable.
(c)
No – this sort of loss is rarely foreseeable.
(d)
Yes – the loss of the product is property damage.
(b) No – this would ordinarily be considered pure economic loss, and not recoverable.
When assessing whether a manufacturer has breached any duty owed, the key question is…
(a) Whether the products reached a reasonable standard.
(b)
Whether the manufacturer could foresee harm being caused by the product.
(c)
Whether the manufacturer failed to produce a product which meets the expectations of a reasonable man.
(d)
Whether the manufacturer fell below the standard of a reasonably competent manufacturer.
(d) Whether the manufacturer fell below the standard of a reasonably competent manufacturer.
The focus has to be on the manufacturer, rather than on the product – this is perhaps a difference between liability in tort and liability under the Consumer Protection Act 1987. Foreseeability of harm is not enough to show breach.
Do you have to show fault on part of D under CPA 1987?
Successful claim in negligence requires C to show fault on part of D - act aimed to introduce strict liability regime and so parties can be found liable without it being necessary to show fault on their part
What is the definition of a product?
Any goods or electricity and includes product which is comprised in another product, whether by virtue of being component part or raw material or otherwise
Ie any goods - and smth which is included as component or raw material in smth else is still product
Eg computer chip is still a product, even once it becomes part of a computer. Plastic sheeting is still a product, even once it has been moulded into a toy.
What is the definition of a defect?
‘There a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect, and for those purposes ‘safety’ in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury’
Whether or not smth is defective depends on what people are generally entitled to expect - people’s expectations of the safety of children’s toys are not going to be same as their expectations for power tools for DIY
What factors should be considered when setting out expectations of people in a product’s safety?
- Manner/purposes for which it has been marketed eg we would expect cutlery marketed as suitable for young children to be safer than that marketed for adults
- Way in which product is described on packaging and any warnings that accompany product are potentially relevant to what people are entitled to expect
- What might reasonably be expected to be done with/in relation to product eg it would not be reasonable to use microwave to dry wet dog
- Time when product was supplied by producer to another eg at one time, mobile phones were rarely purchased for children but now common - expectations may therefore have changed over time - also some products might be safe when put into circulation but deteriorate over time to become less safe
What is the difference in standard of care under CPA and negligence?
He noted that a patient undergoing a transfusion is legitimately entitled to expect that they will not be given infected blood, and that to hold otherwise would be to offer no more protection than the tort of negligence and to take strict liability out of a strict liability regime. It is therefore clear that when assessing expectations of a product the bar should be set higher than the negligence standard of reasonable care.
What is the definition of damage and what types of damage are recoverable?
Damage = death or personal injury or any loss or damages to any property (including land)
Most types of loss count as damage within meaning of act but NOT pure economic loss - no claim can be brought for loss of product itself or any product supplied with defective product as part of it
Two further limits:
1. No claim can be brought in relation to damage to property unless sum to be awarded exceeds £275, excluding interest
2. No claim for damage to property can be brought unless property is ordinarily intended for private use/occupation/consumption and intended by person suffering loss or damage mainly for his own private use/occupation/consumption
