Tort Law - Product Liability Flashcards
Leading case on PL at CL
Donoghue v Stevenson
Leading statute on PL
Consumer Protection Act 1987
What did the CPA1987 implement?
EU Council Directive 85/374
EU Council Directive 85/374
Harmonisation of product liability
Where is the enterprise basis for PL reform relevant?
California
What is the enterprise basis for PL reform?
Idea of loss distribution/spreading
Escola v Coca Cola general
Bottle exploded
Escola v Coca Cola on enterprise basis
Law should be influenced by consequences of defectiveness - if C can’t satisfy burden, bear cost himself, but if D liable, insurance
What case suggested law be influenced by consequences of defectiveness?
Escola v Coca Cola
Case on deterrence basis of reform of PL
Escola v Coca Cola
Escola v Coca Cola on deterrence basis
SL reduces flow of defective products, increasing economic efficiency
Who gives the moral enterprise theory?
Stapleton
Moral enterprise theory
As a matter of morality, profit from defective products SHOULD = duty to compensate for related losses, regardless of reasonable care
What was the main argument influencing Directive 85/374?
Market distortion theory
Commission v France
No more stringent measures under Directive 85/374
What shows Directive 85/374 is only partial harmonisation?
Certain derogations are allowed
Sanchez v Medicine Asturiana
No maintenance of stricter prior laws to Directive
No maintenance of stricter prior laws to Directive
Sanchez v Medicine Asturiana
No more stringent measures under Directive 85/374
Commission v France
Two potential ways different PL schemes could interfere with FM
Deter consumers over uncertainty of legal rights and financial disadvantages
Why can it be doubted consumers are deterred by different PL regimes?
No empirical evidence
Why can it be doubted financial disadvantage from different PL regimes
Insurance unlikely to be as significant as tax and labour costs
Who gives three problems with new product liability regime?
Stapleton
Section 1(1) CPA 1987
Interpretation through Directive if uncertain
A v NBA on s.1(1)
Burton J - go straight to Directive for interpretation
Arnull on s.1(1) CPA
Only look to Directive if ambiguity
Whittaker on s.1(1) CPA
Directive suggests interpretation remains with Member
what two academics disagree with Burton J in A v NBA on s.1(1)
Arnull and Whittaker
What is not defined in CPA
Causation
Three elements to CPA claim
Producer, product and defectiveness
S.1(2)(c) CPA
Product definition
Product definition section of statute
S.1(2)(c) CPA
Product definition in S.1(2)(c) CPA
Goods/electricity/product within another that is ‘manufactured, won or abstracted’
Who argued s.1(2)(c) probably doesn’t include a building?
Winfield and Jolowicz
Who thought s.1(2)(c) is unlikely to include incorporeals?
Whittaker
Producer
S.1(2) CPA
S.1(2) CPA
Producer
Definition of producer in S.1(2) CPA
Person who manufactured/won or abstracted/branded/imported/supplier the product
S.2(2)(b) CPA
Brander can be producer
S.2(3) CPA
Supplier can be producer if no identification of producer/brander/importer
Brander can be producer
S.2(2)(b) CPA
Supplier can be producer if no identification of producer/brander/importer
S.2(3) CPA
What case shows producer in CPA is not limited to purely commercial producers?
A v NBA
Defective section of statute
Section 3 CPA
Section 3 CPA
Defective
Defective definition in CPA
‘Not such as persons generally are entitled to expect’ considering all circumstances
What are the three circumstances noted in Section 3 CPA?
Marketing, timing and use
A v NBA general
Hepatitis C
Hepatitis C
A v NBA
What did LJ Burton divide between in A v NBA when considering defectiveness?
Standard and non-standard
Standard product
Meets manufacturer’s specs
Non-standard product
Does not meet manufacture’s specs
How to work out non-standard product is defective
Compare with other products and info to consumers to work out expected safety level
How to work out standard product defective
Compare with other manufacturers to show ENTIRE product range failed to meet expectations
Why did Burton J refuse to consider unavoidability of risk?
Too close to negligence
What did Burton J in A v NBA refuse to consider?
Unavoidability of risk
Goldberg on A v NBA
Too far in ruling out certain factors
What case, in contrast to A v NBA, seems to show consideration of avoidability?
Abouzaid v Mothercare
Bogle v McDonalds general
Coffee lid
Bogle v McDonalds judgment
No denial of basic utility under CPA
Two cases which seem to show negligence-type factors being considered by courts
Bogle; Abouzaid
What was considered in Abouzaid v Mothercare, in line with negligence?
Gravity of harm (Paris v Stepney BC) and avoidability
Why is it possible reference to availability in Abouzaid not a conflict with A v NBA?
Adds to public expectation of info
Richardson v LRC products general
Condom
Richardson v LRC products judgment
Reasoning unclear but maybe no liability because public aware not 100% effective
Worsley v Tambrands general
TSS warnings
What two cases show warnings may negate defectiveness as not public expectation?
Richardson v LRC Products; Worsley v Tambrands
TSS warnings
Worsley v Tambrands
Condoms
Richardson v LRC products
Two sources on whether or not particular industry standard influences s.3 CPA
Pollard v Tesco Stores; EU Directive 2009/48/EC
Pollard v Tesco Stores general
Safety cap
Safety cap
Pollard v Tesco
Pollard v Tesco judgment
Expectation not to standard of British Standards, just harder than regular cap
EU Directive 2009/48/EC
Toy safety directive
What suggests particular industry standard may be relevant for public expectation in Toy Safety Directive?
SL if toy does not comply - consumer expect safety to include Directive compliance
Why is Whittaker reluctant for intellectual property = defective?
Strays into freedom of expression
Who finds defectiveness to derogate from principles of PL reform?
Stapleton
Why does Stapleton find defectiveness to derogate from bases of PL reform?
Ironically forces adoption of negligence-derived criteria
What kind of damage is not covered under CPA
Pure economic loss
What kind of damage IS covered under CPA
Death/personal injury/loss of or damage to proeprty
What does property need to be to be damage under CPA?
INTENDED for V’s private use, occupation and consumptions
Section 45 CPA
Personal injury = disease or any other impairment of physical/mental condition
What section of CPA gives definition of personal injury
45
Minimum threshold for damage claim under CPA
£275
Ide v ATB Sales
Normal causation rules under CPA - prove defect caused damage, not what caused defect
Normal causation rules under CPA - prove defect caused damage, not what caused defect
Ide v ATB Sales
Section of CPA on defences
4
How many defences are there in CPA
5
Section 4(a) cpa
Attributable to enactment requirement/community obligation
Section 4(b) CPA
No supply
Section 4(c) CPA
Supply not in course of business
Section 4(d) CPA
Defective did not exist at the time
Section 4(e) CPA
Development risks defence
What is the development risks defence
State of scientific/technical knowledge meant producer unable to discover defect
EC v UK on section 4(e) CPA
Objective assessment of state of knowledge
A v NBA on s.4(c)
‘Business’ includes service financed entirely from public funds
Piper v JRI general
Infallible system
Piper v JRI judgment
For section 4(d) CPA, prove infallible system AND give other explanation
Pearson Commission on s.4(e)
Rejected development risks defence due to policy base of reform
What Commission rejected development risks defence
Pearson
A v NBA on s.4(e)
No defence if know risk, but can’t remove it
Roe v Minister of Health general
Vials
Roe v Minister of Health judgment
No benefit of hindsight for s.4(e)
Three questions raised over s.4(e) defence
Accessibility of knowledge, what is the relevant knowledge and personal burden on producer
EC v UK on accessibility of knowledge for s.4(e)
Needs to be published
AG opinion in EC v UK
Be in ‘information circuit of the scientific community’ with Manchurian exeption
What case qualified Manchurian exception to only if not published?
A v NBA
EC v UK on scientifical/technical knowledge required
Most advanced state of knowledge
Abouzaid v Mothercare on scientifical/technical knowledge required
Analysis of material under stress, not just accident statistics
What case said accident statistics insufficient for scientific/technical knowledge under s.4(e) CPA?
Abouzaid v Mothercare
What defence does section 3 suggest the inclusion of?
Volenti - take into account info provided
What defence does section 4(1)(b) suggest the inclusion of?
Illegality - possibility it was stolen
What two defences are specifically included in CPA under section 6?
Contributory negligence and Fatal Accidents Act 1976
what happens if C claims under FAA and D liable under section 2?
Damage deemed to have been caused by D’s wrongful act/neglect/default
What are the limitations on CPA?
Claim 3 years from date on which action accrued OR date of knowledge of facts giving rise to action if later
Why are there argued to be so few cases on CPA?
Cost of UK litigation
Who finds sufficient differences to distinguish CPA from negligence and ensure it isn’t the statutory equivalent of Rylands?
Whittaker
Who argues medical causation is still a threshold problem to CPA (As in negligence)?
Stapleton
