Product Liability

Question 1

How does a duty of care arise under the narrow rule in Donoghue v Stevenson [1932]?

Answer 1

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 the form in which it left the manufacturer with no reasonable possibility of intermediate examination.

Question 2

How is a ‘manufacturer’ defined in case law?

Answer 2

Any person who works in some way on a product before it reaches the consumer such as repairers, installers and on rare occasions suppliers.

Question 3

How may suppliers owe a duty of care under the narrow rule?

Answer 3

If the circumstances are such
that they ought reasonably to inspect or test the products which they supply.

Question 4

How is a ‘product’ defined in case law?

Answer 4

It covers almost any item which is capable of causing damage.

The duty extends to items supplied with the product such as packaging, containers, labels and instructions for use.

Question 5

How is a ‘consumer’ defined in case law?

Answer 5

This term includes not only the ultimate user of the product, but also anyone whom the
defendant should reasonably have in mind as likely to be injured by the defendant’s
negligence (neighbour principle)

Question 6

What happens if there was a reasonable possibility of intermediate examination of the product?

Answer 6

if there is a reasonable possibility of intermediate examination then the ‘manufacturer’ of the product will not owe a duty under the Donoghue v Stevenson narrow
rule. This does not necessarily mean an injured party will be without a cause of action as the
duty may be owed instead by the party having the opportunity to examine the product.

Question 7

When will the ‘reasonable possibility’ of intermediate examination exonerate a manufacturer?

Answer 7

A mere opportunity or possibility of intermediate examination
will not be enough to exonerate a manufacturer. The manufacturer must believe there is a
likelihood of such an examination taking place.

If an examination by a third party (eg a supplier), or by the consumer himself, would
not have revealed the defect (eg because it is a hidden defect), the manufacturer will not be
exonerated.

Question 8

What types of loss are covered under the narrow rule?

Answer 8

It covers any injury to persons or damage to property done by the defect in the product but not if the only loss is the defective quality of the product itself, the reduction in value of the product,
or the cost of repairing the defect or of replacing the product would not be covered by the
duty of care.

Question 9

What is the effect of warnings on breach of duty?

Answer 9

A manufacturer may be able to comply with its duty of care by adequately warning the consumer of any danger connected with the product.

Question 10

How does the defence of consent operate for the narrow rule?

Answer 10

If a claimant is aware of a defect in a product and nonetheless decides to continue with the
use of the product then there is scope for the defendant to argue the defence of consent.
However, knowledge of a risk is not on its own enough to amount to consent. The claimant’s
conduct must also indicate a willing acceptance of the risk.

Question 11

Who can sue under the CPA 1987?

Answer 11

Anyone who has suffered damage caused by a defect in a product.

Question 12

How is damage defined in the CPA 1987?

Answer 12

Claims for death and personal injury are without limit. Personal injury is defined as including ‘any disease and any other impairment of a person’s physical or mental condition’.

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 13

How is causation assessed under the CPA 1987

Answer 13

The usual but for test applies and the claimant must show that the defect caused the damage not the breach of duty.

Question 14

How is ‘defect’ defined under the CPA 1987?

Answer 14

‘Defect’ as defined by the CPA 1987 effectively means ‘unsafe’, ie that the safety of the
product is not such as persons generally are entitled to expect.

Question 15

How is a product judged to be unsafe under under the CPA 1987?

Answer 15

By Looking at the whole get-up and presentation of the product, what the expected use of the product is and the age of the product in question.

Question 16

How is product defined in the CPA 1987?

Answer 16

‘any goods or electricity and… includes a product which is comprised in another product
whether … a component … or raw material’.

It includes blood.

Question 17

What are the four categories of potential defendant under the CPA 1987?

Answer 17

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 18

Who is an ‘own-brander’ under CPA 1987?

Answer 18

This is the person who, by putting their name or trademark on the product, holds themselves
out as being its producer.

Question 19

Who is an importer under CPA 1987?

Answer 19

This is a person who imported the product into the UK from outside of the UK in order to
supply it to another person.

Question 20

Under what circumstances will a supplier be found liable under CPA 1987?

Answer 20

A supplier (eg retailer) is liable only where they are unable to meet a victim’s request to identify any of the people involved in the chain of supply (eg the wholesaler or the manufacturer).

Suppliers are otherwise not liable under the CPA 1987.

Question 21

What is a claimant not required to prove under CPA 1987?

Answer 21

A claimant does not need to prove that the defect resulted from any fault or carelessness on the defendant’s behalf.

The fact that the defect in the product was unavoidable was not an argument the defendant could put forward.

Question 22

What are the defences under CPA 1987?

Answer 22

Compliance with a legal requirement will absolve a producer from liability only if the defect was an inevitable result of compliance.

The defendant did not supply the product to another.

The defendant supplied the product otherwise than in the course of business

The defect was caused by misuse of the product or by fair wear and tear.

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.

Question 23

What is the development risks or state of the art defence?

Answer 23

A defendant must prove that the state of knowledge, at the time the product was supplied, amongst producers of the product in question, was not
such as to allow a producer of the product to discover the defect.

The producer in question should
be judged against the highest standard of knowledge that is accessible anywhere in the
world. A producer would only be able to rely on this defence, therefore, if they could show
that they could not have discovered the defect via any information accessible anywhere in the world.

The defence only applies to defects/ risks that could not have been foreseen.

Question 24

Can liability be excluded under CPA 1987?

Answer 24

No, a defendant cannot exclude, limit or restrict their liability in any way.