Product Liability Flashcards
Negligence
Wide rule = the ‘neighbour principle’
Narrow rule = the circumstances in which a manufacturer of a product would owe a duty of care to the consumer.
To establish narrow rule:
* 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 form in which it left the manufacturer with no
reasonable possibility of intermediate examination.
Who is the manufacturer? Case law has extended this to include any person who works in some way on a product before it reaches the consumer, ie installers, repairers and suppliers of products.
NB: Suppliers, therefore, may owe a duty under the narrow rule if the circumstances are such that they ought reasonably to inspect or test the products which they supply
Product? any item capable of casing damage
Consumer? 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.
Intermediate examination -
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. 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.
Scope of duty under the narrow rule -
in respect of products would cover any injury to persons or damage to property done by the defect in the product. However, he said that 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. Losses stemming directly form the defective quality of product = pure economic loss
Breach of duty -
the actual standard of care expected of the reasonable person
in each case will be determined by looking at all the circumstances, including the magnitude of the foreseeable risk, the gravity of potential injury, and the costs and practicalities of precautions.
In addition, a manufacturer may be able to comply with its duty of care by adequately warning the consumer of any danger connected with the product.
Proof of breach -
the maxim res ipsa loquitur does not apply. This inference differs from res ipsa loquitur in that it does require the claimant to prove
some facts on which the court can base its inference. However, once the inference arises
then, as with res ipsa loquitur, the court will infer breach of duty unless the defendant
can rebut the inference of breach of duty by proving that the defect was not due to the
defendant’s lack of care but to some later problem, for example the claimant’s own misuse
of the product.
Causation and remoteness -
but for test
Defences -
Consent: knowledge of a risk is not on its own enough to amount to consent.
Exclusion and liability: liability to non- consumers in negligence for other loss or damage can be excluded if the reasonableness test is satisfied (UCTA) or the fairness test
if the claimant is a consumer
Contributory negligence
