Tort 8: Liability for Defective Products

Question 1

Other than tort what claims might one have for a defective product and why might they be better?

Answer 1

May have breach of contract claim under Sale of Goods Act

Good as can recover damages for loss of defective product
- can’t under tort as pure economic loss

Limits
- would require privity of contract
- so might not have remedy against manufacturer

Question 2

When does manufactureer owe duty of care?

Answer 2

Manufacturer of product owes duty of care to end consumer if:

• the manufacturer puts the product into circulation in the form in which it is intended to reach end consumer; and
• there is no reasonable expectation of an intermediate examination of product between leaving manufacturer and reaching consumer.

Question 3

Who is classed as a consumer for defective product liability (ie. who is duty owed to by manufacturer)?

Answer 3

Anyone whom the manufacturer could reasonably foresee as likely to be affected by the defect in the product.

Can include anyone using or coming into contact with it.

Question 4

Who counts as manufacturer for defective product liability?

Answer 4

Anyone who:
- manufactures product
- install product
- repair product

Retailer only if:
- they reasonably ought to have inspected the product for defects before supplying

Question 5

What claims can be made by consumers to manufacturer for defective products?

Answer 5

For:
- personal injury
- consequential economic loss
- damage to property (but not defective good itself)

Question 6

How can a claimant prove that manufacturer fell below standard of care?

Answer 6

Standard
- of a reasonable manufacturer of goods of the kind in question

Breach could be because of:
- manufacturing process; or
- design of product

Proof
- courts may be prepared to infer breach in manufacturing process from the existence of the defect itself
- for design proof can be from strict liability regime

Question 7

What is strict liability under the consumer protection act?

Answer 7

Statute that requires that were damage is caused by a defect in a product it is not pessary to prove that the defect arose because of fault on the part of the defendant.

Question 8

Which defendants does strict liability for defective products apply to?

Answer 8

• the producer;
• anyone who holds themselves out as being the producer by putting their name or mark on it; and
• any person who imported the product in order to supply it in the coarse of their business.

Supplier is liable if:
- claimant requests they identify producer, importer or own brander, in reasonable time;
- it is not reasonably practicable for claimant to identify those person independently; and
- supplir fails to do so

Question 9

What happens if more than one defendant is found for defective product in strict liability case?

Answer 9

They are jointly and severally liable

Question 10

What constitutes a defect under strict liability regime?

Answer 10

If products safety is not such as persons generally are entitled to expect

All circumstances taken into account including:
- instructions and warnings provided;
- product packaging and purpose for which it is marketed;
- what might reasonably be expected to be done with product; and
- time when the product was supplied.

Question 11

What types of damage cannot be recovered under strict liability regime?

Answer 11

• damage to defective product itself
• damage to business property
• property damage that does not exceed £275

Question 12

What defences are available under strict liability regime?

Answer 12

No defect when the product was first put into circulation
- D to show there was no defect when product was supplied to consumer, importer or own brander

Defendant did not supply the product in the course of business.

State of the arm defence

Contributory negligence

Question 13

What must a defendant show to prove a product was not supplied in the course of business

Answer 13

Defence to Strict Liability Regime

Defendant must show:
- D were not acting in the course of a business when they supplied the product; and

Either
- D either was not the producer (or own brander / importer) of product
- D was not acting with a view to profit

Question 14

What is the state of the art defence

Answer 14

Defence to Strict Liability Regime claim

D must show that the state of technical knowledge at the time the product was produced was not such that a producer of products of that type might be expected to have discover the defect

EXCEPTION
- cannot use if the risk of the defect was known but it was not possible to detect it