Product liability Flashcards
what are the two aspects of this topic?
1) consumer protection act 1987
Liability in negligence
What does the CPA 1987 say?
‘Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage..’
So you can see from this that to establish liability you need:
1.A product
(any good or electricity- included component or raw material comprised in another product)
2.With a defect
(safety of the product is not such as people generally are entitled to expect.
Relevant considerations include:
1) manner and purpose for which marketed
2) what might reasonably be expected to be done with it
3) time of supply
3.That causes damage
4.Persons under s2(2) will be liable
What is the damages under this act?
Under section 5(1) damage includes death or personal injury or any loss or damage to any property. It is likely consequential economic loss would also be recoverable.
What is not recoverable under the CPA is pure economic loss and no claim can be brought for loss of the product itself.
In addition, you can only claim for property damage that exceeds £275 (s.5(4) CPA).
Finally, no claim for property damage can be brought unless the property is ordinarily intended for private use or occupation or consumption, and intended by the person suffering the loss or damage mainly for their own private use/occupation or consumption (s.5(3) CPA).
It is this latter point that effectively makes this a ‘consumer’ protection: you can’t recover for damage to property used for business purposes, and obviously a business cannot itself suffer personal injury or death, so there is not much a business can get out of the CPA.
Who is liable?
So if you have a product, which is defective, and causes damage of the types discussed, then the key components of a valid claim are present. The question then is – who is liable?
Section 2(2) of the CPA says that those liable are:
(a)The producer of the product;
(b)any person who has held themselves out as being the producer; or
(c)Any person who has imported the product into the UK from outside of the UK in the course of business.
Section 1(2) of the CPA tells us who the ‘producer’ is – for products manufactured, the manufacturer; for products won or abstracted like coal, the person who won/abstracted it; and for products to which neither applies, but where the essential characteristics are attributable to a process carried out (like agricultural produce), the person who carried out the process.
Under s.2(3) of the CPA a supplier of the product might be liable if the claimant asks the supplier for details of the producer within a reasonable time when they cannot identify the producer themselves, and the supplier fails to identify the producer.
If more than one person is liable for the damage, they will be jointly and severally liable (s.2(5)of the CPA).
What defences are available?
There are several defences under section 4:
(a) that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any retained EU obligation; or
(b)that the person proceeded against, did not at any time supply the product to another; or
(c)
(i)that the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person’s; and
(ii)that section 2(2) does not apply to that person or applies to him by virtue only of things done otherwise than with a view to profit; or
(d)that the defect did not exist in the product at the relevant time; or
(e)that 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; or
(f)that the defect—
(i)constituted a defect in a product ( “the subsequent product”) in which the product in question had been comprised; and
(ii)was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product.
You should read section 4 in full, which also explains what is meant by relevant time.
Note that it is defence (e) that introduces a very limited ‘no fault’ defence where the existence of the defect is caused by limited scientific and technical knowledge – but it is still not the same as the breach-orientated approach of a negligence claim.
Contributory negligence is also a defence under section 6(4)of the CPA.
Finally, any attempt to exclude or limit liability under the CPA is prohibited (under section 7) and there are also limitation provisions – the claim must be brought within 3 years from the later date 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. There is a long stop of 10 years after the product was put into circulation by the defendant, which acts as an absolute defence.
What about liability in negligence?
1) is there a precedent making clear whether or not a duty is owed- Donoghue v Stephenson- manufacturer owes a duty of care to the consumers of the product they manufacture.
