Product liability Flashcards
SL defintion
imposition of liability that does not depend on actual negligence or an intent to do harm
Duty of care
Donoghue v setevenson - considered it important that consumer were giving legal protection in the case that something went wrong with a product
- principle applies to defective products and makers as well: manufacturers, repairs fitters, assemblers, makers of parts and so on
Haseldine v Daw - lift maintenance and repair - can be sued by decades family using Donoghue principles
Recoverable damage
(a) personal injury - includes physical injury (Rothwell), Psychiatric injury (white v cc - primary victim) (Alcock - secondary victim)
- Mustapaha - c failed to show person of ordinary fortitude would suffer serious injury from seeing flies in bottle of water about to be installed
(b) property damage - proving defective product affected another product in which it was installed - (James budget)
(c) pure economic loss - cannot recover pure economic loss caused by defective product - (Murphy v Brentwood)
Proving negligence/ bread of duty
Grant v Australia - C is not required to show what went wrong in manufacturing process
- chemical in pants was hidden and latent defect and could not be dented by consumer - negligence inferred because it was not know how the chemical got there
Causation
If negligent manufacturer can reasonably expect intermediate inspection would have identified the defect before use they can argue the chain of causation is broken
- Kubach - chemicals used in a school lab exploded and injured K - company warned it should be tested before use so there was no liability
- Andrews - sale on defective car, C was injured in accident involving the car the defect as found to be longstanding one not discoverable by ordinary driver - held that D was negligent for failing to warn that car was not examined
- Hurley - car was ‘sold as seen’ - h injured after it was went out of control otr - warning that car came with all its faults discharged duty - C was given opportunity to inspect faults before purchase
Manufacturing defect in tort: issues
consumer generally have little knowledge about products
- Goldberg 2013 - causation is very hard to prove
- Thalidomide scandal - drug marketed as mild sleeping pill for pregnant women but it caused babies to be born with malformed limbs - this brought process
- Pearson commission - recommended strict liability - producers should be liable for death and personal injury caused by defective product
Justifications
- those involved in manufacture of products profited from their enterprise so should accept the risk
- manufactures could better absorb the cost of harm
- strict liability incentivised manufactures to minimise the risk of defects
Consumer Protection Act 1987 - act is theoretically preferable to an action in the tort of negligence because there is no need to prove negligence/ fault on the part of the producer
Cause of action - D is a producer of a product which was defective and caused damage to C.
What are products?
S.1(2) - any goods, electricity, and includes products comprised in products by being a component or otherwise
S.45(1) - it also includes substances, growing crops, things attached to the land and ships, aircraft, and components of a building
exemptions - building as a whole and information are not goods
Who can sue?
S.2(1) anyone who suffers damage as a result of the defective product
Who can be sued?
S.2(2) producer - 3 different types of producer identified in s.1(2)
- manufacturer of the product or component
- person who won/abstracted the produce - refers to farmers or fishermen
- essential characteristic of the product is the result of an industrial or other process
S.2(2) - own brander - any person who by putting his name on the product or using a distinguishing mark, holds himself out to be a producer
S.2(2) - importers into the EU
S.2(3) suppliers
Defect
S.3(1) - product is defective if its safety ‘is not such as persons generally are entitled to expect’
- problematic when dealing with pharmaceuticals because consumers have little knowledge
- design defects - if products is new or cutting edge there’s no clear way of knowing what’s the consumer standard
Material facts in determining defect include
S.3(2) - courts must consider all circumstances when applying s.3
- provision of effective warning/ instructions - it must be effective and adeqaute
Worsley - C suffered injury in the form of toxic shock syndrome - questioned if it was adequate to warn of the risk with tampon use - C husband threw away leaflet should have foreseen leaflet might not be kept or read it should have been outside of box - claim failed D did all that C was entitled to expect
- product had clear warning on outside and information contained on leaflet - manufacturers could not be required to cater to lost of leaflet
Cases that apply negligence based reasoning
Richardson - C became pregnant after using defected condom
- court - what persons are entitled to expect includes all the circumstances including the manner - LRC did not market their product as 100 safe and the company met strict expectations
Bogle - hot drinks served at 70 degrees - court held it was not a defective product consumers know that hot coffee is dangerous but they also expect to take lid off - consumers could not expect 100 safety by making lids removable
Cases interpreted with strict liability approach
A v National blood - blood contaminated with Hep C virus a defective product? risk of infection via blood transfusion was known but presence of virus at time impossible to detect
- Held authority was liable under act even though it was impossible to detect the virus
- Judge suggested there are two types of products: standard (products that perform as expected), non standard ( do not perform as intended)
- blood is non-standard - consumers expect blood to perform as standard and expect 100% safety therefore authority was liable
Abouzaid - a product that reads cancer holds the risk of death wouldn’t be viewed as defective due to it utility but it is different from a product that cures baldness you would expect it not to be defective
Type of damage
act covers death and personal injury - recoverability of damage to property restricted
S.5(2)
