Product Liability

Question 1

The Consumer Protection Act 1987

Answer 1

Provides a statutory basis for claiming in relation to damage caused by defective products. It does not replace any claim in negligence/breach of contract but is considered alongside.

Question 2

How does the Consumer Protection Act differ from a claim in general negligence

Answer 2

It introduces a strict liability regime, where parties could be found liable without it being necessary to show fault on their part.

Question 3

Consumer Protection Act s 2(1)

Answer 3

‘Where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for the damage.’

Question 4

Product

Answer 4

Section 1(2) - ‘product’ means any goods or electricity and includes a product which is comprised in another product, whether by virtue of being a component part, raw material or otherwise

Question 5

Defect

Answer 5

Section 3(1) - there is a defect in the product if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘safety’…shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury

Question 6

What does ‘generally entitled to expect’ entail

Answer 6

Section 3(2) have regard to all the circumstances:

• the manner/purpose for which the product has been marketed (e.g. children’s cutlery should be safer than adult’s cutlery)
• what might reasonably be expected to be done with/in relation to the product
• the time when the product was supplied by its producer to another (e.g. one time, mobiles were rarely purchased by children but now are commonly)

Question 7

Examples

Answer 7

Richardson v LRC Products - rejected a claimant’s action for a defective condom that led to pregnancy on the basis that the defendant did not claim its product was 100% effective
Abouzaid v Mothercare - claimant was injured when attaching a sleeping bag to a pushchair. The product was held to be defective because ‘it was supplied with a design which permitted the risk…to arise and without giving warning’

Question 8

Example of the difference between s 3(1) and the standard of care in general negligence

Answer 8

A v National Blood Authority - rejected at general negligence because defendant argued that it had taken all reasonable care to ensure the blood was not infected.

However, under s 3(1), it is enough to claim that a patient undergoing a blood transfusion is entitled to expect that he will not be given infected blood.

Question 9

Damage

Answer 9

Section 5(1) - damage means death or personal injury or any loss of or damage to property (including land)
- So most types of loss count as damage but it would appear not pure economic loss.

Question 10

Limits on type of damage for which a claim can be brought

Answer 10

• s 5(4) - no claim can be brought in relation to damage to property unless the sum to be awarded exceeds £275
• s 5(3) - no claim for damage to property can be brought unless the property is ordinarily intended for private use and intended mainly for the person suffering the loss or damage’s own private use
• therefore losses suffered by businesses are unlikely to be recoverable

Question 11

Persons liable for damage

Answer 11

Section 2(2)

(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
(c) any person who has imported the product into a member State from a place outside the member States in order to supply it to another

Question 12

Meaning of ‘producer’

Answer 12

Section 1(2) - For products that are manufactured, the manufacturer.

• For products that are ‘won or abstracted’ (e.g. coal), 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 (e.g. farming), the person who carried out that process.

Question 13

Section 2(3)

Answer 13

Someone who supplied a defective product to any person will be liable for damage caused by the defect if the person suffering damage asks for the details of the producer/importer within a reasonable time and the supplier fails to identify that person.

Question 14

Section 2 (5)

Answer 14

More than one person can be liable for the same damage under the Act. If so, they will be jointly and severally liable

Question 15

Who can bring a claim?

Answer 15

• No definition of consumer in the relevant provisions
• However, broadly, businesses losses cannot be recovered under the Act
• The effect of this approach is that protection is not limited to people who purchased the product or even people who used it. Anyone suffering damage as a result of the defect can sue

Question 16

Defences

Answer 16

• the defect did not exist in the product at the relevant time (s 4(1)(d))
• 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 (s 4(1)(e))
• if a manufacturer is aware of a defect but not how to fix it, this will not be a defence to the claim.

Question 17

Exemption clauses

Answer 17

Section 7 prohibits any exclusion or limitation of liability under the provisions of the Act

Question 18

Limitations

Answer 18

The claim must be brought within three years from whichever is later of:

• the date the injury and/or damage occurred
• when the claimant became aware or should reasonably have become aware of the damage (s 11A(4) Limitation Act 1980)
• there is a long stop of 10 years after the product was put into circulation by the defendant; this is an absolute defence (s 11A(3) Limitation Act 1980)

Question 19

Defective products under general negligence - Duty

Answer 19

Donoghue v Stevenson - precedent for the fact that a manufacturer owes a duty of care to those people who use its products.

• The claimant in Donoghue did not purchase the beer -her friend did.
• So the manufacturer owes a duty not only to the purchaser, but also to other users of the product.

Stennett v Hancock - a manufacturer owes a duty to a party that neither bought nor used the product, but who comes into contact with it

Malfroot v Noxal - no absolute duty to inspect and test every product; what is reasonable will depend on the circumstances

Question 20

Defective products under general negligence - Pure economic loss

Answer 20

When the loss being considered is the loss of the product itself, this is pure economic loss. This is not generally recoverable.

Question 21

Defective products under general negligence - breach

Answer 21

Analysed in the same way as usual
In many cases the presence of a defect in a product will be sufficient evidence to establish breach, unless the manufacturer can show another reason for the defect
It is still for the claimant to prove the breach.

Question 22

Causation

Answer 22

• will follow the usual principles
• a manufacturer might argue that where goods were going to be examined at some point between the manufacture and use by consumer, then any harm caused to the consumer is not the manufacturer’s responsibility.
• Haseldine v Daw - the manufacturer will be held liable if he has no reason to contemplate that an immediate inspection would occur
• Holmes v Ashford - if there is a warning to test the product in a particular way and the claimant fails to carry this out, this may be sufficient to constitute a break in the chain of causation.