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Law Second Year > Tort Law - Product Liability > Flashcards

Tort Law - Product Liability Flashcards

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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
Q

A v NBA on s.1(1)

A

Burton J - go straight to Directive for interpretation

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26
Q

Arnull on s.1(1) CPA

A

Only look to Directive if ambiguity

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27
Q

Whittaker on s.1(1) CPA

A

Directive suggests interpretation remains with Member

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28
Q

what two academics disagree with Burton J in A v NBA on s.1(1)

A

Arnull and Whittaker

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29
Q

What is not defined in CPA

A

Causation

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30
Q

Three elements to CPA claim

A

Producer, product and defectiveness

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31
Q

S.1(2)(c) CPA

A

Product definition

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32
Q

Product definition section of statute

A

S.1(2)(c) CPA

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33
Q

Product definition in S.1(2)(c) CPA

A

Goods/electricity/product within another that is ‘manufactured, won or abstracted’

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34
Q

Who argued s.1(2)(c) probably doesn’t include a building?

A

Winfield and Jolowicz

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35
Q

Who thought s.1(2)(c) is unlikely to include incorporeals?

A

Whittaker

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36
Q

Producer

A

S.1(2) CPA

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37
Q

S.1(2) CPA

A

Producer

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38
Q

Definition of producer in S.1(2) CPA

A

Person who manufactured/won or abstracted/branded/imported/supplier the product

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39
Q

S.2(2)(b) CPA

A

Brander can be producer

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40
Q

S.2(3) CPA

A

Supplier can be producer if no identification of producer/brander/importer

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41
Q

Brander can be producer

A

S.2(2)(b) CPA

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42
Q

Supplier can be producer if no identification of producer/brander/importer

A

S.2(3) CPA

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43
Q

What case shows producer in CPA is not limited to purely commercial producers?

A

A v NBA

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44
Q

Defective section of statute

A

Section 3 CPA

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45
Q

Section 3 CPA

A

Defective

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46
Q

Defective definition in CPA

A

‘Not such as persons generally are entitled to expect’ considering all circumstances

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47
Q

What are the three circumstances noted in Section 3 CPA?

A

Marketing, timing and use

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48
Q

A v NBA general

A

Hepatitis C

49
Q

Hepatitis C

A

A v NBA

50
Q

What did LJ Burton divide between in A v NBA when considering defectiveness?

A

Standard and non-standard

51
Q

Standard product

A

Meets manufacturer’s specs

52
Q

Non-standard product

A

Does not meet manufacture’s specs

53
Q

How to work out non-standard product is defective

A

Compare with other products and info to consumers to work out expected safety level

54
Q

How to work out standard product defective

A

Compare with other manufacturers to show ENTIRE product range failed to meet expectations

55
Q

Why did Burton J refuse to consider unavoidability of risk?

A

Too close to negligence

56
Q

What did Burton J in A v NBA refuse to consider?

A

Unavoidability of risk

57
Q

Goldberg on A v NBA

A

Too far in ruling out certain factors

58
Q

What case, in contrast to A v NBA, seems to show consideration of avoidability?

A

Abouzaid v Mothercare

59
Q

Bogle v McDonalds general

A

Coffee lid

60
Q

Bogle v McDonalds judgment

A

No denial of basic utility under CPA

61
Q

Two cases which seem to show negligence-type factors being considered by courts

A

Bogle; Abouzaid

62
Q

What was considered in Abouzaid v Mothercare, in line with negligence?

A

Gravity of harm (Paris v Stepney BC) and avoidability

63
Q

Why is it possible reference to availability in Abouzaid not a conflict with A v NBA?

A

Adds to public expectation of info

64
Q

Richardson v LRC products general

A

Condom

65
Q

Richardson v LRC products judgment

A

Reasoning unclear but maybe no liability because public aware not 100% effective

66
Q

Worsley v Tambrands general

A

TSS warnings

67
Q

What two cases show warnings may negate defectiveness as not public expectation?

A

Richardson v LRC Products; Worsley v Tambrands

68
Q

TSS warnings

A

Worsley v Tambrands

69
Q

Condoms

A

Richardson v LRC products

70
Q

Two sources on whether or not particular industry standard influences s.3 CPA

A

Pollard v Tesco Stores; EU Directive 2009/48/EC

71
Q

Pollard v Tesco Stores general

A

Safety cap

72
Q

Safety cap

A

Pollard v Tesco

73
Q

Pollard v Tesco judgment

A

Expectation not to standard of British Standards, just harder than regular cap

74
Q

EU Directive 2009/48/EC

A

Toy safety directive

75
Q

What suggests particular industry standard may be relevant for public expectation in Toy Safety Directive?

A

SL if toy does not comply - consumer expect safety to include Directive compliance

76
Q

Why is Whittaker reluctant for intellectual property = defective?

A

Strays into freedom of expression

77
Q

Who finds defectiveness to derogate from principles of PL reform?

A

Stapleton

78
Q

Why does Stapleton find defectiveness to derogate from bases of PL reform?

A

Ironically forces adoption of negligence-derived criteria

79
Q

What kind of damage is not covered under CPA

A

Pure economic loss

80
Q

What kind of damage IS covered under CPA

A

Death/personal injury/loss of or damage to proeprty

81
Q

What does property need to be to be damage under CPA?

A

INTENDED for V’s private use, occupation and consumptions

82
Q

Section 45 CPA

A

Personal injury = disease or any other impairment of physical/mental condition

83
Q

What section of CPA gives definition of personal injury

A

45

84
Q

Minimum threshold for damage claim under CPA

A

£275

85
Q

Ide v ATB Sales

A

Normal causation rules under CPA - prove defect caused damage, not what caused defect

86
Q

Normal causation rules under CPA - prove defect caused damage, not what caused defect

A

Ide v ATB Sales

87
Q

Section of CPA on defences

A

4

88
Q

How many defences are there in CPA

A

5

89
Q

Section 4(a) cpa

A

Attributable to enactment requirement/community obligation

90
Q

Section 4(b) CPA

A

No supply

91
Q

Section 4(c) CPA

A

Supply not in course of business

92
Q

Section 4(d) CPA

A

Defective did not exist at the time

93
Q

Section 4(e) CPA

A

Development risks defence

94
Q

What is the development risks defence

A

State of scientific/technical knowledge meant producer unable to discover defect

95
Q

EC v UK on section 4(e) CPA

A

Objective assessment of state of knowledge

96
Q

A v NBA on s.4(c)

A

‘Business’ includes service financed entirely from public funds

97
Q

Piper v JRI general

A

Infallible system

98
Q

Piper v JRI judgment

A

For section 4(d) CPA, prove infallible system AND give other explanation

99
Q

Pearson Commission on s.4(e)

A

Rejected development risks defence due to policy base of reform

100
Q

What Commission rejected development risks defence

A

Pearson

101
Q

A v NBA on s.4(e)

A

No defence if know risk, but can’t remove it

102
Q

Roe v Minister of Health general

A

Vials

103
Q

Roe v Minister of Health judgment

A

No benefit of hindsight for s.4(e)

104
Q

Three questions raised over s.4(e) defence

A

Accessibility of knowledge, what is the relevant knowledge and personal burden on producer

105
Q

EC v UK on accessibility of knowledge for s.4(e)

A

Needs to be published

106
Q

AG opinion in EC v UK

A

Be in ‘information circuit of the scientific community’ with Manchurian exeption

107
Q

What case qualified Manchurian exception to only if not published?

A

A v NBA

108
Q

EC v UK on scientifical/technical knowledge required

A

Most advanced state of knowledge

109
Q

Abouzaid v Mothercare on scientifical/technical knowledge required

A

Analysis of material under stress, not just accident statistics

110
Q

What case said accident statistics insufficient for scientific/technical knowledge under s.4(e) CPA?

A

Abouzaid v Mothercare

111
Q

What defence does section 3 suggest the inclusion of?

A

Volenti - take into account info provided

112
Q

What defence does section 4(1)(b) suggest the inclusion of?

A

Illegality - possibility it was stolen

113
Q

What two defences are specifically included in CPA under section 6?

A

Contributory negligence and Fatal Accidents Act 1976

114
Q

what happens if C claims under FAA and D liable under section 2?

A

Damage deemed to have been caused by D’s wrongful act/neglect/default

115
Q

What are the limitations on CPA?

A

Claim 3 years from date on which action accrued OR date of knowledge of facts giving rise to action if later

116
Q

Why are there argued to be so few cases on CPA?

A

Cost of UK litigation

117
Q

Who finds sufficient differences to distinguish CPA from negligence and ensure it isn’t the statutory equivalent of Rylands?

A

Whittaker

118
Q

Who argues medical causation is still a threshold problem to CPA (As in negligence)?

A

Stapleton

Law Second Year (62 decks)

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