Tort 5 - Product liability

Question 1

How can a claimant bring an action for injury caused by a defective product?

Answer 1

1. Negligence (Duty / breach / causation)
2. Consumer protection Act 1987 (strict)

Question 2

When does a duty of care arise from a manufacturer to end consumer?

Answer 2

1. Puts product into circulation to reach end consumer
2. No reasonable expectation of examination of product between leaving manufacturer and consumer

Question 3

Who is the duty of care owed to?

Answer 3

Any foreseeable claimant e.g. product user or person coming into contact with product

Question 4

Who is the duty owed by?

Answer 4

Manufacturers, wholesalers, retailers (only if inspect product), repairers, assemblers

Question 5

What injury is covered by a claim in negligence?

Answer 5

1. Personal injury
2. Consequential economic loss
3. Damage to property caused by product

NOT product itself

Question 6

How would you establish breach of duty?

Answer 6

Claimant must prove manufacturer fell below reasonable standard of care in supplying defective product

Question 7

How will the courts assess whether there was a breach of duty?

Answer 7

Infer a breach from the existence of a defect itself

Question 8

What is the liability under Consumer Protection Act 1987?

Answer 8

Strict

No need to prove fault, just that a defect exists

Question 9

Who is the claimant under the CPA1987?

Answer 9

Anyone who suffers damage caused by product

Question 10

Who could potential defendants be under CPA?

Answer 10

1. Producers
2. Person who holds themselves as producer ‘branding it’
3. Importers
4. Suppliers

Question 11

When will a supplier be considered a defendant under CPA 1987?

Answer 11

1. Claimant requests the supplier to identify producer
2. Request in a reasonable time frame
3. Not reasonably practicable for claimant to identify producer independently
4. Supplier fails to identify producer within a reasonable period

Question 12

When will a product be considered defective?

Answer 12

Safety not what people entitled to expect

Question 13

What factors are considered to understand if a product is defective?

Answer 13

1. Warnings and instructions
2. Product packaging and purpose which the product was marketed
3. What might reasonably be expected to be done with the product
4. Time when product was supplied

Question 14

What damage can be claimed under CPA?

Answer 14

1. Death
2. Personal injury
3. Damage to property exceeding £275 and for private use

Question 15

What damage cannot be claimed under CPA?

Answer 15

1. Defected product itself
2. Damage to business property

Question 16

What defences are available under CPA?

Answer 16

1. No defect when product first put into circulation
2. Did not supply within course of business (not producer or not acting for profit in supplying product)
3. State of the art defence
4. Contributory negligence

Question 17

Explain the state of the art defence

Answer 17

Not liable if technology would not have discovered the defect

BUT - if class of products known to carry risk and that technology did not discover the defect = still liable