Product liability

Question 1

Negligence - duty of care

Answer 1

Donoghue v Stevenson narrow rule for when manufacturer of product would owe DOC:
* the defendant is a ‘manufacturer’;
* the item causing damage is a ‘product’;
* the claimant is a ‘consumer’; and
* the product reached the consumer in the form in which it left the manufacturer with no
reasonable possibility of intermediate examination.

Question 2

Negligence - duty of care - Who is a ‘manufacturer’?

Answer 2

Includes any person who works in some way on a product before it reaches the consumer e.g. repairer, installer etc.

A supplier can be within the scope - if the 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 could also owe a duty if they actually know of a
defect/ danger.

Question 3

Negligence - duty of care - What is a ‘product’?

Answer 3

Covers almost
any item which is capable of causing damage.

Also extends to items supplied with the product, eg packaging, containers, labels, instructions for use.

Question 4

Negligence - duty of care - Who is a ‘consumer’?

Answer 4

Not just the user but also anyone whom the
defendant should reasonably have in mind as likely to be injured by the defendant’s
negligence.

Question 5

Negligence - duty of care - Intermediate examination

Answer 5

If there is a reasonable possibility of intermediate examination then the
‘manufacturer’ of the product will not owe a duty.

e.g. product not sealed in an opaque bottle.

Question 6

Negligence - duty of care - scope of the duty

Answer 6

Covers any injury to
persons or damage to property done by the defect in the product.

Not covered: the cost of repairing the defect or of replacing the product.

Question 7

Negligence - breach of duty - proof

Answer 7

Usually in negligence, where the facts are beyond the knowledge of the claimant, the claimant can be assisted in proving breach of duty by the maxim res ipsa loquitur - cannot use this for products.

Can use inference e.g. proof chemical in underwear and factory which caused injury.
Once the inference arises
then, as with res ipsa loquitur, the court will infer breach of duty unless the defendant can rebut the inference.

Question 8

Negligence - defences

Answer 8

• Consent (voluntary assumption of risk/ volenti non fit injuria)
  Continue with use of defective product.
• Exclusion of liability
  Liability in negligence for death or personal injury cannot be excluded at all where liability arises in the
  course of a business or trade.
  However, liability to non- consumers in negligence for other loss or damage can be excluded if the reasonableness test is satisfied or the fairness test
  if the claimant is a consumer.
• Contributory negligence

Question 9

Consumer Protection Act 1987

Answer 9

Provides an additional cause of action to a claim in negligence
(but the claimant cannot recover damages twice over for the same loss).

Question 10

Consumer Protection Act 1987 - who can sue? - damage

Answer 10

Claims for death and personal injury are without limit.

Damage to private property must exceed £275 before a claim for it can be brought.

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

The cost of repairing or replacing the defective product itself is not recoverable.

Question 11

Consumer Protection Act 1987 - who can sue?

Answer 11

Anyone who can establish:
*that they have suffered damage
*caused by
*a defect
*in a product.

Question 12

Consumer Protection Act 1987 - who can sue? - defect

Answer 12

Must prove that they have suffered damage caused
wholly or partly by a defect in a product.

Defect = unsafe

Question 13

Consumer Protection Act 1987 - who is liable?

Answer 13

• The producer of the product (ie the manufacturer).
• An ‘own- brander’.
• An importer.
• A supplier, but only in limited circumstances outlined under the CPA 1987

Question 14

Consumer Protection Act 1987 - nature of liability

Answer 14

Liability is strict under the
CPA 1987 in that the defendant will be liable without proof of any fault on his part.

Question 15

Consumer Protection Act 1987 - defences

Answer 15

• The defendant supplied the product otherwise than in the course of business
• The defect did not exist when the defendant supplied the product
• A manufacturer of component parts is not liable for a defect in the finished product which is
  wholly attributable to the design of the finished product or to compliance with the instructions
  given by the manufacturer of the finished product
• Development risks’ (or ‘state of the art’)
• Contributory negligence
• Exclusion of liability
  A defendant CANNOT exclude, limit or restrict their liability in any way.