Tort - Product Liability and Breach of Statutory Duty

Question 1

Liability for defective product

Answer 1

Where no contractual duty exists between consumer and manufacturer (i.e. no privity of contract)

Question 2

Negligence Liability

Answer 2

Product manufacturer duty of care

1. Put out product in final form intended to reach consumer
2. No reasonable expectation that intermediary will inspect product

Extends to those who may come into contact with the product

Also owed by those who install or repair the product

Duty extends to personal injury and economic loss consequential to such injury

Extends to damage caused to other property but not the defective product itself

Question 3

Proving breach of duty

Answer 3

1. Show manufacturer failed to exercise reasonable care
2. Court may infer breach of duty because defect exists (an application of res ipsa) on the basis that the defect could only arise from a fault in the manufacturing process

If fault due to a third party the manufacturer must have known it was defective

Question 4

Consumer Protection Act 1987

Answer 4

1. Defect
2. Suffered damage - does not include damage to product itself
3. Caused by defect
4. Defendant is producer, own brander or importer of product

Strict liability - no requirement for defendant to be at fault

Question 5

Defences under 1987 Act

Answer 5

1. Defect did not exist when producer supplied product
2. Product not supplied in course of business and not acting to make a profit
3. Existence of defect not discoverable at time product supplied - ‘State of the Art’ defence

State of the Art defence does not apply if a risk is known but scientific and technical knowledge is not such that the producer is unable to detect the defect before supply and the product does contain the defect and causes damage

Question 6

Breach of statutory duty

Answer 6

If a statute is silent as to civil liability the court will consider several questions:

1. Did Parliament intend the statute to give rise to a civil claim?
2. C falls within class protected by statutory duty
3. Statutory duty breached by D
4. C suffered type of damage statute intended to protect against

Statute may expressly provide for civil claims or expressly exclude them

Entirely separate from a claim in the tort of negligence

Question 7

Defendants under the CPA 1987

Answer 7

1. The producer of the product
2. Anyone holding themselves out to be the producer (i.e. put their name or mark on it)
3. Any person who imported the product in order to supply it in the course of their business

If two (or more) potential defendants are liable to the claimant for the same damage they are jointly and severally liable

Question 8

Liability of Supplier

Answer 8

1. Only liable if the claimant has requested the supplier to identify the producer
2. The request has been made within a reasonable period of time
3. It is not reasonably practicable for the claimant to identify the producer indepedently; and
4. The supplier fails to identify the producer within a reasonable time

Question 9

Damage

Answer 9

CPA 1987 defines damage as death or personal injury or damage to property

Damage to defective product itself and damage to business property are not recoverable

Damage to property must exceed £275 to be recoverable