Product Liability Flashcards
What are the possible claims that can be brought for a defective product?
- Negligence
- CPA 1987
- Contract (only if buyer AND supplier is in business)
When can someone who has suffered damage from a defective product bring a claim in negligence?
- D is a manufacturer (includes repairer, installer, supplier if they should have inspected or knew of defect)
- Item is a product: any item capable of causing damage AND items supplied with product (packaging, containers, labels, instructions)
- C is a consumer: end user OR neighbour
- Product reached C in form it left manufacturer AND no reasonable possibility of intermediate examination (e.g. sealed OR examination would not reveal defect)
What does reasonable possibility of intermediate examination mean in relation to product liability?
M believes examination is likely (e.g. warning notice, not sealed, more than opportunity or possibility of inspection)
Can a warning discharge M’s duty of care for defective product in negligence?
Yes, if adequate
Is Res Ipsa Loquitur available in defective product claims in negligence?
No
When may the court infer breach in defective product cases?
- C can prove some fact (e.g. presence of chemical in factory and underwear); and
- D cannot prove defect is due to a later problem (e.g. C’s misuse)
Can M exclude liability for a defective product in negligence?
Yes (not personal injury or death but property damage if reasonable under UCTA / CRA)
Who can sue for defective products under CPA?
Anyone who can establish:
1. Suffered damage (death, PI, PPH, property damage to private property exceeding £275 NOT business property or PEL)
2. **caused by **(Re Polemis)
3. **Defect **(safety of product is not such as persons are generally entitled to expect considering warnings, expected use and age of product)
4. In a product (goods / electricity / component parts / raw materials / blood)
What types of damage are permitted under CPA for defective products?
Personal Injury
Psychiatric Harm
Death
Personal property damage exceeding £275
NOT business property or PEL
When will a product be defective under CPA?
Safety is not such as persons are generally entitled to expect considering packaging, warnings, instructions, expected use and age of product
When will blood be considered defective under CPA?
Contains virus even if this is unavoidable (irrelevant if D takes all reasonable care)
What is the limitation period for claims under CPA?
Claim must be brought within 3 years from the later of: date of injury OR date of discovery or date it should reasonably have been discovered.
No claim can be brought after 10 years of product being circulated
Who can be liable for a defective product under CPA?
Producer
Own-brander
Importer
Supplier if they cannot identify anyone else in the supply chain
Defences under CPA?
Producer will not be liable if:
1. Defect inevitable result of compliance with a legal requirement
2. Product was stolen
3. Product was sold by one friend to another
4. Defect was caused by misuse or fair wear and tear
5. D is a manufacturer of component part and the defect is attributable to the design of a finished product or compliance with instructions given by manufacturer of finished product
6. Unable to discover risk at time product time supplied as risk not known to producers at time supplied AND risk unknown
7. Exclusion is unavailable
When can a producer rely on state of art / development risk defence?
- At the time the product was supplied the state of knowledge among producers of the product meant it was impossible to discover risk of defect (inability to fix insufficient); and
- Risk was unknown
Who can bring a claim under CPA / negligence?
CPA: anyone who can prove suffered recoverable loss caused by defect in a product
Negligence: end user or neighbour
Who can a claim be brought against for a defective product under CPA / Negligence?
CPA: producer, own-brander, importer or supplier if cannot identify anyone else in supply chain (can be more than one)
Negligence: Manufacturer including repairers and installers
What does a claimant need to prove to be successful in a claim for defective product in CPA and Negligence?
CPA: safety of product is not such as persons are generally entitled to expect + recoverable type of damage
Negligence: M fell below standard of a reaonable manufacturer
What is recoverable for defective products under CPA / Negligence
CPA: personal injury / physchiatric harm / death / personal property damage exceeding £275
Negligence: personal injury / property damage
PEL never recoverable
Can liability be excluded / restricted under CPA?
No
