Tort Law - Product Liability Flashcards
To claim product liability under the relevant statute (Consumer Protection Act 1987), what 3 things do you need to show?
Who has standing to bring a claim?
- Product
- Had a Defect
- Which has caused damage
This is a STRICT LIABILITY regime (fault/negligence is not required).
Any CONSUMER that has suffered DAMAGE can bring a claim, even if:
- they did not buy the product (not limited to contractual nexus);
- a consumer uses a business-specific product and they used in a retail/consumer setting and suffered damage.
Who can you claim against for product liability under the Consumer Protection Act 1987
You can claim against any producer, anyone who has held himself out as a producer, or any UK importer who has brought a product into the UK.
“Producer” includes anyone involved with the product at any stage, e.g. repairers, suppliers, and people who carried out processes (e.g. agricultural produce; extracting coal from the ground).
For example: C was injured when he fell to the ground in a faulty lift. He bought a case against the lift engineers, and as specialists who worked on the lift a week earlier, they were held to be “manufacturers”.
What is the definition of a “product” under the Consumer Protection Act 1987
Products are any goods, raw materials or electricity.
Even when raw materials are used as components in another product, they remain products in their own right.
EG: Plastic sheeting is still a product when used in a toy.
EG: Layer of glass is still a product when used in a window.
EG: Computer chip is still a product when used in a PC.
What is the definition of a “defect” under the Consumer Protection Act 1987
What factors must be considered when identifying a potential “defect”?
Where the SAFETY of a product is not as “PERSONS ARE GENERALLY ENTITLED TO EXPECT”.
This refers to safety against property damage, personal injury or death.
Consider also:
- PURPOSE/MANNER FOR WHOM/WHICH THE PRODUCT IS MARKETED
(child’s cutlery would be safer than the cutlery used by adults)
- REASONABLE USE OF THE PRODUCT
(e.g. microwave is not used to dry clothes);
- USE OF PRODUCT OVER TIME
(some products might deteriorate over time; sometimes products are more commonly bought for younger ages, e.g. mobile phones)
If a sleeping bag has an elastic strap which has a tendency to lose control and ping back (risking injury to person, for example, in the eye), is this a defect?
Yes, this is a clear defect because the public was entitled to expect greater safety from the manufacturer.
On the facts, the elastic strap lost control and a metal buckle hit a child in the eye, causing partial loss of vision (Abouzaid v Mothercare UK Ltd).
How does the standard of care in product liability compare to negligence?
The standard of care is higher - it is about what people are entitled to expect re. a product’s safety. This is a STRICT LIABILITY regime (fault is not required).
There is no mention of “reasonableness” and this is for policy reasons, e.g. consumer vs manufacturer; bargaining powers; and safety of the public.
What sort of “damage” can you claim under Consumer Rights Act 1987?
Damage to property (including land), personal injury or death.
Pure economic loss (e.g. loss of the product) is not possible.
EG: A defective washing machine’s motor causes the machine to spit fire, damaging a home and homeowner. The personal and property damage is recoverable, but not the cost of the washing machine, nor its motor.
EG: A defective washing machine’s motor causes the machine to spit fire, damaging a home and homeowner, and the washing machine and its motor are destroyed. What is recoverable?
The personal injury and property damage are recoverable, but not the cost of the washing machine, nor its motor.
The Consumer Protection Act 1987 imposes 2 limits on claiming - what are these?
- Cannot claim for anything less than £275.
- Cannot claim for property damage if the property is ordinarily intended (and was intended by C) for private use, occupation or consumption.
This effectively restricts businesses from claiming losses; this is primarily a consumer-focused statute. Remember that Strict Liability is mainly to protect consumers.
Can you bring concurrent claims in the tort of negligence and a statutory claim under the Consumer Protection Act 1987?
Yes, you can bring both claims.
What defences are available to prevent finding product liability?
- Contributory negligence
- If the defect arises from the overall design of the whole product (not the manufacturer’s component - which is still a product), then that manufacturer is not liable.
- The defect did not exist at the “relevant time”, i.e. when he supplied the product to another.
- The scientific and technical knowledge at the “relevant time” was not there, such that the producer could not be expected to realise or notice the defect.
(Does not apply if the producer knew of the defect and continued to pass it on, even if the science was not there for him to rectify it - he should NOT have passed it on!)
What is the statutory limitation period for bringing a claim under the Consumer Protection Act 1987?
3 years from:
- date of the damage
- date at which claimant became aware, or should have reasonably became aware, of the damage
Once a product is put into circulation/into the market, the producer (Defendant) only has 10 years during which he can be liable. Therefore, some claimants are time-barred to only claim negligence (6 years’ limitation period).
Can you exclude the Consumer Protection Act 1987 via exemption clauses, or limit liability via limitation clauses?
No, you cannot exclude or limit liability under the Consumer Protection Act 1987.
Are there causation, foreseeability or remoteness rules relating to the Consumer Protection Act 1987?
Explain where causation might be broken, by the consumer or another party.
Only causation, which is very straightforward: was the damage caused “WHOLLY OR PARTLY” by the defect in the product?
There is no foreseeability or remoteness rules (as this is strict liability), provided causation is satisfied.
Causation might be broke where:
- An “intermediate inspection” is done by another party between Manufacturer and Consumer, e.g. a supplier inspects the goods before they go to the consumer.
- The Consumer fails to test the product in accordance with instructions, e.g. hairdresser fails to test the hair dye properly.
John buys a drying machine (for drying clothes). The drying machine catches fire during normal use, damaging the house owned by him and his wife (the damage exceeds £2,000). The attendance of the fire service stops customers attending a sandwich shop next door, and so the sandwich shop suffers a substantial loss of profits. Who can potentially bring a claim under the Act?
John AND his wife
- claim exceeds £275.
- wife’s property is also damaged as home is jointly owned.
