Tort - Product Liability (9) Flashcards
What is tortious liablity?
Tortious Liability: Manufacturers have a duty to the ‘ultimate consumers’ of their products, and must take reasonable steps to ensure their products are safe and free of defects (Donoghue v Stevenson).
(1) Manufacturers: Manufacturers cover any individual who worked on the product prior to consumption.
Repairs: Repairers such as mechanics (Haseldine v Daw).
Installers: Installers such as electricians (Stennett v Hancock).
Suppliers: Suppliers, if expected to inspect the products before supply (Andrews v Hopkinsons).
(2) Products: Any item capable of causing damage, including the packaging.
(3) Ultimate Consumers: Any person the manufacturer should reasonably have had in mind as likely to be injured through their negligence, even if they did not ‘consume’ the product directly.
(4) Intermediate Inspection: There is no duty if there is a reasonable expectation that the product was to be inspected between manufacturer and consumption (Kubach v Hollands).
Breach of Duty
Breach of Duty: Manufacturers are in breach for failing to perform to the standard of the ‘reasonable manufacturer’ of the type of product (Daniels v R White).
(1) Reasonableness: Consider risk, gravity of injury, cost of precautions.
(2) Establishing Breach: Claimants cannot wholly rely on res ipsa loquitur, but breach can be inferred on at least some evidence (Grant v Australian).
Causation
Causation: Causation is the same as in negligence (Evans v Triplex).
(1) Claims: Claims cannot cover cost of product, this is pure economic loss.
Defences
Defences: Manufacturers have a number of defences.
(1) Consent: Claimants who knowingly and freely consent to a defect may be denied (Grant v Australian).
(2) Contributory Negligence: Damages may be reduced by contributory negligence in the ordinary way.
(3) Exclusion Clause: A manufacturer may exclude liability (subject to CRA/UCTA).
>Liability for personal injury or death cannot be excluded.
What is product liability?
Product Liability: Claimants harmed by products may be able to pursue remedies in contract, negligence, or statute. Contract is the only means of recovering the cost of the defective product (see contract law).
How are consumers protected under the Consumer Protection Act 1987?
Consumer Protection Act 1987: Consumers are provided protection by statute in respect of defective product harms.
Elements of Claim
Elements of Claim: Claimants must establish harm caused by a defective product (s2).
(1) Harm: The claimant must establish recoverable harm caused by a defect in a product.
Personal Injury: Personal injury or death is recoverable in damages.
Personal Property: Personal property is only recoverable if valued in excess of £275 per asset (s5).
Business Property: Business assets are not recoverable (S5).
Defective Product: The defective product itself is not recoverable.
(2) Causation: Causation satisfied on ‘but for’ test. Full extent of harm is recoverable, need not be ‘foreseeable’.
(3) Defect: An unsafe and unexpected element of the product, including packaging. It is irrelevant that the manufacturer could not have detected the defect, subject to one defence (A v National Blood).
>Assets that are unsafe by design are not ‘defective’ for their intended purposes, i.e. cut by a knife.
(4) Product: Products are any good or electricity, including raw materials contained in other products.
Liability
Liability: Relevant defendants are strictly liable - no intent, carelessness or fault is required (s2). Defendants are either:
(1) Producers: Producers of the ultimate product or the defective element of a product.
>I.e. Boeing is the ultimate producer of a faulty plane, and ‘Company B’ the producer of the faulty wing. Both are liable.
(2) Own-Branders: Those who trademark or place their name on products, such as supermarkets.
(3) Importers: Those who imported the product from abroad.
(4) Suppliers: Those who sell the product if they cannot provide the name of other liable parties (s2).
Defences
Defences: A number of defences apply. Note that liability cannot be contractually excluded. (s7).
(1) Attributable to Legal Compliance: Defect was the inevitable result of compliance with a legal requirement.
>I.e. The government required all products to be sold using defective packaging.
(2) Product Not Supplied by Defendant: Product was not supplied by the defendant.
>I.e. The defective product was stolen from the production line of a company.
(3) Product Not Supplied in Business: Product was not supplied in furtherance of business.
>I.e. The product was created by a friend and gifted to another person.
(4) Design or Specification of Product: Defect wholly attributable to the intended design of the product, or because of the specifications of bespoke instructions.
>I.e. The customer asked the business to make a product to their specification, and their specification was the cause of the defect.
(5) Developmental Risks: State of knowledge at time of supply was not sufficient to detect the defect.
Threshold: Defendant is judged to the highest standard of knowledge accessible anywhere in the world at the time; if information was accessible, the defence is not applicable (Commission v UK).
>I.e. A product caused cancer but no person in the world knew this at the time.
>If a single piece of research suggests that it does, then the defence does not apply.
(6) Defect Arose Since Supply: Defect arose since the supply.
>I.e. Product was purchased ten years ago and the defect was a result of ordinary wear and tear.
(7) Contributory Negligence: Claimant may have damage reduced in accordance with contributory negligence.
