Product Liability

Question 1

What rights does the Consumer Protection Act 1987 provide?

Answer 1

Statutory basis for claiming in relation to damage caused by defective products.

Question 2

Does the Consumer Protection Act 1987 replace any claim a consumer might have in contract or negligence?

Answer 2

No so claims in negligence, contract and under the act should all be considered

Question 3

What counts as a product under the Consumer Protection Act 1987?

Answer 3

Any goods or electricity, including things which are included as component or raw material in something else.

Eg computer chip is still a product even though it is part of a computer

Question 4

When is a product defective under the Consumer Protection Act 1987?

Answer 4

When the safety of the product is not such as persons are generally entitled to expect

Question 5

In relation to safety of a product, what are people generally entitled to expect?

Answer 5

• the manner/purposes for which it has been marketed (eg cutlery for young children should be safer than cutlery for adults). The product description on packaging and any warnings are potentially relevant to what people are entitled to expect
• what might reasonably be expected to be done with/in relation to the product (eg would not be reasonable to use a microwave to dry a wet towel)
• the time when the product was supplied by its producer to another as expectations of safety may change over time. Additionally safety of some products may deteriorate over time

Question 6

Is a condom that gets someone pregnant a defective product?

Answer 6

No - a seller did not claim that product was going to be 100 per cent effective.

Generally people realise that such precautions are not totally effective

Question 7

What impact do warnings have on whether a product is defective or court?

Answer 7

Courts have treated presence/absence of warnings as significant.

Warnings can mitigate liability by warning products of dangers

Question 8

How does the standard of care for negligence stand against the level of protection afforded by Consumer Protection Act 1987?

Answer 8

The Standard of care is higher in relation to Consumer Protection Act 1987.

Question 9

What expectations are patients undergoing blood transfusions entitled to have?

Answer 9

Patients legitimately entitled to expect that they will not be given infected blood

Question 10

What kind of damage is covered by the Act?

Answer 10

• death
• personal injury
• loss or damages to any property
• Not pure economic loss
• not the loss of the product itself or any product supplied with the defective product

Question 11

What limitations are there on property damage that can be recovered under the Consumer Protection Act 1987?

Answer 11

• damage must exceed £275 (excluding interest)
• no claim for damage to property can be brought unless the property is ordinarily intended for private use/occupation/consumption

Question 12

Who is liable under the Consumer Protection Act 1987?

Answer 12

The producer of the product.

Any person who holds themselves out to be the producer of the product

Any importer of the product into the UK from a place outside the UK

Question 13

Why will there broadly always be someone within the UK who is liable under the Consumer Protection Act 1987?

Answer 13

As the producer will either be based here or importer will be

Question 14

What does producer mean?

Answer 14

• for products that are manufactured (eg a car) - the manufacturer
• for products that are ‘won or abstracted’ (eg coal, which is abstracted from the ground, but not manufactured) - the person who won/abstracted it
• for products to which neither of the above applies, but where the essential characteristics are attributable to a process carried out (eg agricultural produce) - the person carried out that process

Question 15

When will a supplier be liable for a defective product?

Answer 15

When the person who suffers the 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

Question 16

If more than one person is liable for the same damage under the CPA how will liability be shared?

Answer 16

Jointly and severally liable

Question 17

Who can bring a claim under the Consumer Protection Act 1987?

Answer 17

As business losses cannot be recovered under the CPA, only consumers can claim

Broader than just those who have purchased the product as would usually be the case for contract claims.

Broader than those who just use the product.

Covers anyone suffering damage as a result of the defect.

Question 18

When might a claim under Consumer Protection Act 1987 still be made even though the whole manufacture, supply, and use of the product is business orientated?

Answer 18

When that product damages consumer property due to a defect in that product

Question 19

What defences are available for a party who is is potentially liable under the Consumer Protection Act 1987?

Answer 19

• the defect did not exist in the product at the relevant time
• 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
• contributory negligence

Question 20

Can liability under Consumer Protection Act 1987 be excluded or limited?

Answer 20

No

Question 21

When must a claim under Consumer Protection Act 1987 be brought by?

Answer 21

Must be brought within three years from the later of:

• the date the injury and/or damage occurred or
• when the claimant became aware or should reasonably have become aware of the damage

Long stop of ten yers after the product was put into circulation by D (still might be negligence claim)

Question 22

What is the starting point when considering liability for a defective product under negligence?

Answer 22

Seeing if there is a precedent making clear whether or not a duty of care is owed

Question 23

Who does a manufacturer owe a duty of care to under the law of negligence?

Answer 23

The final purchaser and other users of the product, and anyone who comes into contact with the product

Question 24

Who is liable for a defective product under negligence?

Answer 24

• manufacturer
• repairers, suppliers, distributors where they should have inspected the product and would then have discovered the defect

Question 25

Is there an absolute duty on repairers, supplies, and distributors to inspect the product and discover defects?

Answer 25

No - what is reasonable will depend on the circumstances

Question 26

Can the cost of the loss of the product itself be recovered?

Answer 26

No - pure economic loss

Question 27

What will presence of defect mean for assessing breach of duty?

Answer 27

Will in many cases be sufficient evidence to establish breach, unless the manufacturer can show another reason for the defect

Question 28

When will the breach be more difficult for the claimant to show in negligence?

Answer 28

When the defect stems from a problem in the design of the product rather than the manufacturing process

Question 29

What is required by way of causation and defective products in negligence?

Answer 29

Causation must be established following the usual principles

Question 30

How will intermediate inspection ie where the products were going to be examined at some point between the manufacture and use by the consumer, break causation?

Answer 30

When there is a reasonable probability rather than a reasonable possibility of intermediate examination.

Causation will not be broken if manufacturer has no reason to contemplate that an intermediate inspection will occur.

Question 31

What effect will warnings have on the chain of causation?

Answer 31

If there is a warning to test a product or to use it in a particular way, and the claimant fails to carry this out, the chain of causation may be broken.