Product Liability

Question 1

What is the purpose of the consumer protection act 1987?

Answer 1

Provides a statutory basis for claiming in relation to damage caused by defective products. Does not replace any claim in negligence or breach of contract, so should still consider those as well as the act.

Act introduced strict liability regime where parties could be found liable without it being necessary to show fault on their part.

Question 2

Who is liable under the CPA 1987?

Answer 2

Certain people will be liable for damage caused by a defect in a product.

• producer
• any person who has held himself out to be the producer of the product (trademark, putting name on product)
• any person who has imported the product into the UK from a place outside the UK in order to supply it to another

Question 3

What is a product under the CPA 1987?

Answer 3

A product means any goods. And something which is included as a component or raw material in something else is still a product.

Question 4

What is a defect under the CPA 1987?

Answer 4

There is a defect if the safety of the product is not such as persons generally are entitled to expect. (act was meant to demand more of manufacturers than traditional negligence claims).

Safety includes safety with respect to products comprised in that product and risks of damage to property and risks of death or personal injury.

‘Generally entitled to expect’: makes sense ie expectation for a toy is different to power tool.
- depends on marketing, any warnings on package
- what reasonably be expected to be done with product
- time when product was supplied by producer to another

Question 5

What is damage under CPA 1987?

Answer 5

Damage means death or personal injury or any loss or damages to property (including land).

Note: no pure economic loss. No claim can be brought for the loss of the product itself.

Property damage must exceed £275 excluding interest.

Property must be ordinarily intended for private use/occupation/consumption and intended by person suffering the loss or damage mainly for his own private use/occupation/consumption (losses suffered by businesses are unlikely to be recoverable).

Question 6

What damages/losses are recoverable under the CPA 1987?

Answer 6

• Death
• Personal injury
• Loss of or damage to any property (including land)

Question 7

What damages/losses are not recoverable under the CPA 1987?

Answer 7

• Loss of the product itself or any product supplied with the defective product as part of it
• Damage to property not exceeding £275 in total
• Damage to property which is not ordinarily intended for private use/occupation/consumption
• Damage to property which is not intended by the person suffering the loss or damage mainly for his own private use/occupation/consumption

Question 8

Can a party bring a claim on the basis of both negligence and the Consumer Protection Act 1987?

Answer 8

Yes

Question 9

The Consumer Protection Act 1987 aimed to introduce a strict liability regime, meaning?

Answer 9

A regime where parties could be found liable without it being necessary to show fault on their part

Question 10

Who is a producer under CPA 1987?

Answer 10

Producer means:
- manufacturer
- person who won/abstracted it (eg coal)
- person who carried out process (but neither manufactured or abstracted)

Question 11

Can a supplier be liable under CPA 1987?

Answer 11

Yes. Someone who supplied a defective product to any person will be liable for the damage caused by the defect if the person suffering damage asks for details of the producer/importer within a reasonable time and when they cannot identify the producer/importer themselves, and the supplier fails to identify that person.

Means more than one person can be liable for the same damage under the CPA 1987?

Question 12

How are multiple parties held liable under the CPA 1987?

Answer 12

They will be jointly and severally liable.

Question 13

Who can bring a claim under the CPA 1987?

Answer 13

No actual description. But, act obviously meant to apply to consumers, and business losses are not recoverable under the act.

Anyone suffering damage under the Act can sue.

Question 14

What are the defences under CPA 1987?

Answer 14

1. The defect did not exist at the ‘relevant time’
2. 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.
   - this is about inability to discover, not inability to fix. if aware of default this is not a defence.
3. Contributory negligence

Question 15

Can you use an exemption clause under CPA 1987?

Answer 15

No. The act prohibits any exclusion or limitation of liability under the s7.

Question 16

What is the limitation period for bringing a claim under CPA 1987?

Answer 16

The claim must be brought within three years from the later of:

1. the date the injury and/or damage occurred; OR
2. When the claimant became aware or should reasonably have become aware of the damage

Long stop of ten years after the product was put into circulation by the defendant.

Question 17

How does the CPA 1987 add to the law/what are its benefits?

Answer 17

1. Protection is not limited to those who purchased the product. Anyone suffering damage as a result of the defect can sue.
2. No need to establish foreseeability of harm
3. ‘Causation’ requirement under the Act is that the damage was caused ‘wholly or partly’ by the defect. Simpler than in negligence.

Question 18

What is the starting point when considering liability in negligence?

Answer 18

Is there a precedent making clear whether or not a duty is owed?

For manufacturers to consumers (users of the product, not just purchaser): Donoghue v Stevenson.

A manufacturer also owes a duty to a party that neither bought nor used the product, but who comes into contact with it

Question 19

What if the loss is just the loss of the product itself?

Answer 19

Loss of product itself would mean what is sought is the cost of replacement. This is pure economic loss. This is generally not recoverable.

Question 20

How is whether there has been a breach analysed in negligence for defective products?

Answer 20

Whether the manufacturer fell below the standard of a reasonably competent manufacturer.

Consider the standard of care to be expected of the manufacturer
- Whether the manufacturer has fallen below that standard, considering:
likelihood of harm
magnitude of harm
practicality of precautions

Usually presence of a defect in product will be sufficient evidence to establish breach - unless manufacturer can show another reason for the defect.

When defect stems from a problem in the design of the product rather than manufacturing process then the breach may be even more difficult to show.

Question 21

How is causation determined in negligence for defective products?

Answer 21

Causation will be established following the usual principles.

“Intermediate inspection point”: If there is a warning to test the product or use it in a particular way and the claimant fails to carry this out, it may be sufficient to constitute a break in the chain of causation.

Manufacturer will be held liable if they have no reason to contemplate that an intermediate inspection will occur.

Question 22

What is the link between a claim in negligence and a claim under the Consumer Protection Act 1987?

Answer 22

These are two separate causes of action. Both, one or neither may be available. The elements of each cause of action should be considered separately.