Product liability Flashcards
What are the two methods to pursue a claim for product liability?
Tort of negligence
Consumer Protection Act 1987
How do you establish a duty of care for negligence for product liability?
The defendant is a manufacturer
The item causing damage is a product
The claimant is a consumer
The product reached the consumer in the form which left the manufacturer with no reasonable possibility of intermediate examination.
What is a ‘manufacturer’ in respect of product liability?
Any person who works on the product before it reaches the consumer.
What is a ‘product’ in respect of product liability?
Any item which is capable of causing damage. This includes labels and packaging.
What is a ‘consumer’ in respect of product liability?
The ultimate user of the product, including anyone the defendant should have in mind who may be injured from their negligence.
How do you determine a breach of negligence in product liability?
The defendant must reach the standard of a reasonable manufacturer.
Consider how likely it is that the defendant’s actions could result in an injury.
How do you determine causation in a negligence claim for product liability?
Factual causation (‘but for’ test)
Legal causation - were there any intervening acts? Is the loss a reasonably foreseeable loss?
What defences are available for negligence in product liability?
Consent - a claimant is aware of the defect but uses the product anyway.
Exclusion of liability in limited circumstances.
Contributory negligence - someone is injured as a result of their own carelessness.
How can you exclude liability for negligence in product liability?
If it was supplied during the course of business, liability for personal injury and negligence cannot be excluded under UCTA and CRA.
If it was a non-consumer (i.e. not the intended end user of the product), it can be excluded if the exclusion is reasonable and fair.
How can you bring a claim for product liability under the Consumer Protection Act 1987?
A consumer must have suffered damage which has been caused by a defect in a product.
What ‘damage’ is considered under the CPA for product liability? (4)
There is no limit on claims for death or PI.
Damage to private property must exceed £275
Damage caused by a defective product to business property is out of scope
The cost of repairing the defective product is not recoverable.
What is considered a ‘defect’ under the CPA for product liability?
An unsafe product.
This is determined by the presentation (including packaging and instructions), expected use and the age of the product.
Who may be liable under the CPA for product liability?
Producers
‘Own-branders’ e.g. Tesco
Importers
Suppliers, where nobody in the supply chain can be identified.
What defences exist for defendants under the CPA for product liability? (5)
The defect was attributable to compliance with legal requirements.
The defendant supplied the product outside of the course of business.
The defect did not exist when the product was supplied.
Producers could not have known at the time due to knowledge in the industry.
Contributory negligence.
