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Law Second Year > Tort Law - Product Liability > Flashcards

Tort Law - Product Liability Flashcards

1
Q

Leading case on PL at CL

A

Donoghue v Stevenson

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2
Q

Leading statute on PL

A

Consumer Protection Act 1987

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3
Q

What did the CPA1987 implement?

A

EU Council Directive 85/374

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4
Q

EU Council Directive 85/374

A

Harmonisation of product liability

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5
Q

Where is the enterprise basis for PL reform relevant?

A

California

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6
Q

What is the enterprise basis for PL reform?

A

Idea of loss distribution/spreading

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7
Q

Escola v Coca Cola general

A

Bottle exploded

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8
Q

Escola v Coca Cola on enterprise basis

A

Law should be influenced by consequences of defectiveness - if C can’t satisfy burden, bear cost himself, but if D liable, insurance

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9
Q

What case suggested law be influenced by consequences of defectiveness?

A

Escola v Coca Cola

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10
Q

Case on deterrence basis of reform of PL

A

Escola v Coca Cola

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11
Q

Escola v Coca Cola on deterrence basis

A

SL reduces flow of defective products, increasing economic efficiency

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12
Q

Who gives the moral enterprise theory?

A

Stapleton

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13
Q

Moral enterprise theory

A

As a matter of morality, profit from defective products SHOULD = duty to compensate for related losses, regardless of reasonable care

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14
Q

What was the main argument influencing Directive 85/374?

A

Market distortion theory

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15
Q

Commission v France

A

No more stringent measures under Directive 85/374

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16
Q

What shows Directive 85/374 is only partial harmonisation?

A

Certain derogations are allowed

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17
Q

Sanchez v Medicine Asturiana

A

No maintenance of stricter prior laws to Directive

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18
Q

No maintenance of stricter prior laws to Directive

A

Sanchez v Medicine Asturiana

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19
Q

No more stringent measures under Directive 85/374

A

Commission v France

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20
Q

Two potential ways different PL schemes could interfere with FM

A

Deter consumers over uncertainty of legal rights and financial disadvantages

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21
Q

Why can it be doubted consumers are deterred by different PL regimes?

A

No empirical evidence

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22
Q

Why can it be doubted financial disadvantage from different PL regimes

A

Insurance unlikely to be as significant as tax and labour costs

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23
Q

Who gives three problems with new product liability regime?

A

Stapleton

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24
Q

Section 1(1) CPA 1987

A

Interpretation through Directive if uncertain

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25
A v NBA on s.1(1)
Burton J - go straight to Directive for interpretation
26
Arnull on s.1(1) CPA
Only look to Directive if ambiguity
27
Whittaker on s.1(1) CPA
Directive suggests interpretation remains with Member
28
what two academics disagree with Burton J in A v NBA on s.1(1)
Arnull and Whittaker
29
What is not defined in CPA
Causation
30
Three elements to CPA claim
Producer, product and defectiveness
31
S.1(2)(c) CPA
Product definition
32
Product definition section of statute
S.1(2)(c) CPA
33
Product definition in S.1(2)(c) CPA
Goods/electricity/product within another that is 'manufactured, won or abstracted'
34
Who argued s.1(2)(c) probably doesn't include a building?
Winfield and Jolowicz
35
Who thought s.1(2)(c) is unlikely to include incorporeals?
Whittaker
36
Producer
S.1(2) CPA
37
S.1(2) CPA
Producer
38
Definition of producer in S.1(2) CPA
Person who manufactured/won or abstracted/branded/imported/supplier the product
39
S.2(2)(b) CPA
Brander can be producer
40
S.2(3) CPA
Supplier can be producer if no identification of producer/brander/importer
41
Brander can be producer
S.2(2)(b) CPA
42
Supplier can be producer if no identification of producer/brander/importer
S.2(3) CPA
43
What case shows producer in CPA is not limited to purely commercial producers?
A v NBA
44
Defective section of statute
Section 3 CPA
45
Section 3 CPA
Defective
46
Defective definition in CPA
'Not such as persons generally are entitled to expect' considering all circumstances
47
What are the three circumstances noted in Section 3 CPA?
Marketing, timing and use
48
A v NBA general
Hepatitis C
49
Hepatitis C
A v NBA
50
What did LJ Burton divide between in A v NBA when considering defectiveness?
Standard and non-standard
51
Standard product
Meets manufacturer's specs
52
Non-standard product
Does not meet manufacture's specs
53
How to work out non-standard product is defective
Compare with other products and info to consumers to work out expected safety level
54
How to work out standard product defective
Compare with other manufacturers to show ENTIRE product range failed to meet expectations
55
Why did Burton J refuse to consider unavoidability of risk?
Too close to negligence
56
What did Burton J in A v NBA refuse to consider?
Unavoidability of risk
57
Goldberg on A v NBA
Too far in ruling out certain factors
58
What case, in contrast to A v NBA, seems to show consideration of avoidability?
Abouzaid v Mothercare
59
Bogle v McDonalds general
Coffee lid
60
Bogle v McDonalds judgment
No denial of basic utility under CPA
61
Two cases which seem to show negligence-type factors being considered by courts
Bogle; Abouzaid
62
What was considered in Abouzaid v Mothercare, in line with negligence?
Gravity of harm (Paris v Stepney BC) and avoidability
63
Why is it possible reference to availability in Abouzaid not a conflict with A v NBA?
Adds to public expectation of info
64
Richardson v LRC products general
Condom
65
Richardson v LRC products judgment
Reasoning unclear but maybe no liability because public aware not 100% effective
66
Worsley v Tambrands general
TSS warnings
67
What two cases show warnings may negate defectiveness as not public expectation?
Richardson v LRC Products; Worsley v Tambrands
68
TSS warnings
Worsley v Tambrands
69
Condoms
Richardson v LRC products
70
Two sources on whether or not particular industry standard influences s.3 CPA
Pollard v Tesco Stores; EU Directive 2009/48/EC
71
Pollard v Tesco Stores general
Safety cap
72
Safety cap
Pollard v Tesco
73
Pollard v Tesco judgment
Expectation not to standard of British Standards, just harder than regular cap
74
EU Directive 2009/48/EC
Toy safety directive
75
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
76
Why is Whittaker reluctant for intellectual property = defective?
Strays into freedom of expression
77
Who finds defectiveness to derogate from principles of PL reform?
Stapleton
78
Why does Stapleton find defectiveness to derogate from bases of PL reform?
Ironically forces adoption of negligence-derived criteria
79
What kind of damage is not covered under CPA
Pure economic loss
80
What kind of damage IS covered under CPA
Death/personal injury/loss of or damage to proeprty
81
What does property need to be to be damage under CPA?
INTENDED for V's private use, occupation and consumptions
82
Section 45 CPA
Personal injury = disease or any other impairment of physical/mental condition
83
What section of CPA gives definition of personal injury
45
84
Minimum threshold for damage claim under CPA
£275
85
Ide v ATB Sales
Normal causation rules under CPA - prove defect caused damage, not what caused defect
86
Normal causation rules under CPA - prove defect caused damage, not what caused defect
Ide v ATB Sales
87
Section of CPA on defences
4
88
How many defences are there in CPA
5
89
Section 4(a) cpa
Attributable to enactment requirement/community obligation
90
Section 4(b) CPA
No supply
91
Section 4(c) CPA
Supply not in course of business
92
Section 4(d) CPA
Defective did not exist at the time
93
Section 4(e) CPA
Development risks defence
94
What is the development risks defence
State of scientific/technical knowledge meant producer unable to discover defect
95
EC v UK on section 4(e) CPA
Objective assessment of state of knowledge
96
A v NBA on s.4(c)
'Business' includes service financed entirely from public funds
97
Piper v JRI general
Infallible system
98
Piper v JRI judgment
For section 4(d) CPA, prove infallible system AND give other explanation
99
Pearson Commission on s.4(e)
Rejected development risks defence due to policy base of reform
100
What Commission rejected development risks defence
Pearson
101
A v NBA on s.4(e)
No defence if know risk, but can't remove it
102
Roe v Minister of Health general
Vials
103
Roe v Minister of Health judgment
No benefit of hindsight for s.4(e)
104
Three questions raised over s.4(e) defence
Accessibility of knowledge, what is the relevant knowledge and personal burden on producer
105
EC v UK on accessibility of knowledge for s.4(e)
Needs to be published
106
AG opinion in EC v UK
Be in 'information circuit of the scientific community' with Manchurian exeption
107
What case qualified Manchurian exception to only if not published?
A v NBA
108
EC v UK on scientifical/technical knowledge required
Most advanced state of knowledge
109
Abouzaid v Mothercare on scientifical/technical knowledge required
Analysis of material under stress, not just accident statistics
110
What case said accident statistics insufficient for scientific/technical knowledge under s.4(e) CPA?
Abouzaid v Mothercare
111
What defence does section 3 suggest the inclusion of?
Volenti - take into account info provided
112
What defence does section 4(1)(b) suggest the inclusion of?
Illegality - possibility it was stolen
113
What two defences are specifically included in CPA under section 6?
Contributory negligence and Fatal Accidents Act 1976
114
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
115
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
116
Why are there argued to be so few cases on CPA?
Cost of UK litigation
117
Who finds sufficient differences to distinguish CPA from negligence and ensure it isn't the statutory equivalent of Rylands?
Whittaker
118
Who argues medical causation is still a threshold problem to CPA (As in negligence)?
Stapleton

Law Second Year (62 decks)

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