Product Liability

Question 1

Consumer Protection Act 1987

Answer 1

CPA 1987 ensured better protection for consumers from defective products by making producers strictly liable for damage caused by the products they market.

Question 2

scope of the duty

Answer 2

The duty extends to everyone in the production line. E.g.: packers, machine operators, distributors, and retailers.

The ‘ultimate consumer’ goes beyond the ‘end-purchaser’ and also includes the ‘ultimate user’ or ‘end-user’.

The duty extends to bystanders (any person coming into contact with the product). E.g.: Stennett v Hancock & Peters [1939] (pedestrian hit by the wheel of a lorry when it fell off).

Question 3

Breach and causation

Answer 3

The question here is, did the Defendant manufacturer take reasonable care when making the product? This is to be assessed on a case-to-case basis.

A breach can be inferred from the defect in the product. This must be rebutted by the Defendant with evidence. E.g., Grant v Australian Knitting Mills Ltd [1936] (C suffered a painful skin condition after wearing woollen undergarments purchased from D).

But see Evans v Triplex Glass Co Ltd [1936] – no liability because the fault could have been of glass fitters and not manufacturers (reasonable possibility).

Question 4

causation

Answer 4

Courts will draw inferences from the circumstances.
E.g.: the possibility of interference.

Mason v Williams & Williams Ltd [1955]– C was injured while using a chisel, which was too hard for its purpose. The Court held that so long as it is established that nothing had happened to the chisel after it left D’s factory, negligence can be established.

Question 5

Post sale duties

Answer 5

Duty to warn customers – E Hobbs v Baxenden Chemical Co [1992]: the claim that insulation was self-distinguishing was wrong.

Duty to recall – Walton v British Leyland [1978] – a wheel that came off a car caused by failure of bearing. The Court held that the manufacturer owed a duty to recall.

Question 6

Limits of negligence liability:
Design defects

Answer 6

Design defects are difficult to discover, both by the manufacturer and by the ultimate consumer.
It is more difficult for a plaintiff to succeed in a negligence claim in relation to a design defect. The claimant must show (1) that the design defect can cause harm and (2) that it was the actual or material cause of the specific harm being claimed for.
This is particularly difficult for pharmaceutical products.

Loveday v Renton [1988] – C suffered brain damage following the administration of a vaccine. The Court held that the plaintiff did not prove the causal link with the vaccine. One person’s belief is not sufficient (see also Wilsher v Essex Area Health Authority [1988]).

Question 7

ELEMENTS TO ESTABLISH LIABILITY UNDER THE CPA

Answer 7

• Standing to bring a claim [implied in ss 2(1) and 5(1)]
  Anyone who has suffered damage covered by the Act can bring a claim
  • Possible defendants (ss 1 and 2)
    producers/manufactuerers
  • Is the item a product? (s 1)
    “Product” is defined in s 1(2) as ‘any goods or electricity and…a product which is comprised in another product, whether by virtue of being a component part of raw material or otherwise’.
  • Is there a defect? (s 3)
    there is 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”.
  • What type of damages are covered?
    Provided in section 5
    Death and personal injury.
    Property damage exceeding £275

What are the available defences
Development Risks Defence