Tort Unit 7 SBAQs Flashcards
Is the following statement TRUE OR FALSE?
The manufacturer of a product is liable in negligence if damage is caused by a defect in a product.
The statement is false. This is not a correct explanation of product liability in negligence. Case law has established the circumstances in which the manufacturer of a product owes a duty of care to the end consumer. For a successful claim in negligence it is not sufficient to show that damage was caused by a defective product. The claimant would also need to prove breach of duty – by showing that the manufacturer fell below a reasonable standard of care
Is the following statement TRUE OR FALSE?
Under the Consumer Protection Act 1987 a manufacturer will always be liable when a product causes harm.
The statement is false. For a successful claim under the CPA it is not sufficient to show that the product caused harm. The claimant must show that the product was defective, as defined in the Act. Also, a manufacturer would not be liable if one of the available defences under the Act could be established.
Is the following statement TRUE OR FALSE?
In a claim under the Consumer Protection Act 1987 it is not relevant to consider the level of knowledge which a reasonable manufacturer might be expected to possess
The statement is false because it does not take into account of the ‘development risks’ defence. It is a defence to show that a producer of the type of goods in question could not have been expected to discover the defect, because of the state of scientific and technical knowledge at the relevant time.
Which ONE OR MORE of the following imposes strict liability for damage caused by a defective product?
A. Negligence
B. Consumer Protection Act 1987
C. Contract – breach of statutory term of satisfactory quality
The correct answers are B and C. The Consumer Protection Act 1987 imposes strict liability for damage caused by a defective product. In contract, liability for breach of the statutory term of satisfactory quality is also strict. Liability in negligence is not strict. It requires proof of fault on the part of the defendant.
Under which ONE of the following causes of action may a claimant recover damages for the cost of acquiring a defective product?
A. Negligence
B. Consumer Protection Act 1987
C. Contract – breach of term that goods will be of satisfactory quality
The correct answer is C. Only a claim in contract allows the claimant to recover the cost of acquiring a defective product. The cost of acquiring a defective product is pure economic loss. It is not recoverable in the tort of negligence or under the Consumer Protection Act.
Which ONE of the following statements is INCORRECT?
A. A manufacturer is always a potential defendant under the Consumer Protection Act 1987.
B. A supplier is always a potential defendant under the Consumer Protection Act 1987.
C. A repairer is never a potential defendant under the Consumer Protection Act 1987.
D. A supplier is only a potential defendant under the Consumer Protection Act 1987 in limited circumstances
B is the statement that is incorrect. A supplier will not always be liable under the Act. They are only liable if they are asked to name their own supplier and fail to comply with this request (so-called ‘forgetful supplier’).
Is the following statement true or false?
Loss to business property can only be recovered under the Consumer Protection Act 1987 if it is more than £275 in value.
The statement is false. Loss to business property cannot be recovered under the Act at all. It is in relation to private property that there is a minimum value of £275.
Pamela has her boiler serviced by a firm of heating engineers. The service is carried out negligently and Pamela suffers injury when the boiler subsequently explodes.
Which ONE of the following statements is CORRECT?
A. Pamela could sue the firm of heating engineers under the Consumer Protection Act 1987.
B. Pamela could only sue the firm of heating engineers in contract.
C. Pamela could only sue the firm of heating engineers in the tort of negligence.
D. Pamela could sue the firm of heating engineers in both contract and the tort of negligence.
D is the correct answer. Pamela has engaged the firm to carry out a service for her and that service has been performed negligently. Pamela could sue the firm of heating engineers in contract and in the tort of negligence. A repairer can constitute a “manufacturer” and owe a duty of care in negligence. The repairers are not, however, a potential defendant under the CPA.
Consider the scope of the manufacturers’ duty of care in negligence.
Harriet’s microwave explodes because of negligence on the part of the manufacturer. Harriet sustains personal injuries, her kitchen is badly damaged and she suffers loss of earnings because of her injuries.
Which ONE of the following is CORRECT?
A. Harriet can only recover for her personal injuries; her other losses are not recoverable.
B. Harriet can recover for all her losses.
C. Harriet can recover for all her losses except for the cost of replacing the microwave.
D. Harriet can recover for all her losses under the “narrow rule” except for the damage to her kitchen.
C is the correct answer because the cost of replacing the microwave is pure economic loss.
A claimant decides to purchase a novelty unicorn design hot water bottle from a local shop. She fills it with hot water in accordance with the instructions on the label, from the manufacturer. The claimant is distracted by her phone ringing and quickly closes the bottle. She has not removed any air from the bottle before closing it, which she should have done. She falls asleep and inadvertently rolls onto the bottle, causing it to burst. Unfortunately, she sustains serious scalding burns to her body as a result. It becomes apparent that the bottle had a faulty seal and the build-up of air caused the bottle to burst more easily. This problem could only have been identified upon use.
How should a solicitor advise the claimant?
A. The claimant will have a potential claim under the Consumer Protection Act 1987 (‘CPA’) against the shop and the manufacturer of the water bottle. Both the shop and the manufacturer could raise the partial defence of contributory negligence against the claimant.
B. The claimant will have a potential contractual claim against the shop and a possible claim against the manufacturer under the CPA. The manufacturer cannot raise the partial defence of contributory negligence against the claimant under the CPA.
C. The claimant will have a potential claim in negligence against the manufacturer, on the basis that it failed in its duty to act as a reasonable manufacturer. The manufacturer will successfully argue that the problem with the seal should have been identified by the shop.
D. The claimant will have a potential claim under both the CPA and in negligence against the manufacturer. Under both claims the manufacturer could raise the defence of contributory negligence against the claimant.
E. The claimant will not have any potential claims against either the shop or the manufacturer as it was clearly her own actions which caused her injury.
Option D is correct. The claimant will have a potential claim under both the CPA and in negligence against the manufacturer. Under both claims the manufacturer could raise the defence of contributory negligence against the claimant.
Option A is wrong because whilst the manufacturer would be a producer so a claim under the CPA would be possible, the shop is unlikely to be a ‘forgetful supplier’. There is therefore no claim against the shop under the CPA.
Option B is wrong because the manufacturer could potentially raise the partial defence of contributory negligence against the claimant as she did not attempt to remove the air from the water bottle once she filled it and also, she rolled on to it.
Option C is wrong because the problem with the water bottle could only be identified upon use. Therefore, the manufacturer will not be able to argue that the problem with the seal should have been identified by the shop.
Option E wrong as there was clearly a defect with the water bottle which made it unsafe. The claimant will therefore have potential claims.
A claimant buys a new gas cooker from her local appliance shop. She sees several models on display and is impressed by one in particular, which has a large wok burner. She arranges for the cooker to be delivered and it is duly fitted by a qualified gas fitter. She uses the cooker a few times without any issues. However, one day she attempts to turn on the wok burner and presses down on the ignition, in the usual way. However, the gas will not light. She continues to try a few more times. The burner makes a loud noise and the flame catches the claimant’s sleeve. She suffers serious burns to her hand. It becomes apparent that this model has had some issues with its ignition switch.
Which of the following statements best describes the position on possible courses of action?
A. The claimant will have a potential claim under the Consumer Protection Act 1987 (‘CPA’) against the manufacturer of the cooker. Such a claim will enable her to recover the cost of replacing the faulty cooker.
B. The claimant will have a potential contractual claim against the shop and a possible claim against the manufacturer under both negligence and the CPA.
C. The claimant will have a potential claim in negligence and under the CPA against the manufacturer. It will be better for her to pursue a negligence claim as this will enable her to claim for the injuries she has sustained.
D. The claimant will have a potential claim under both the CPA and in negligence against the manufacturer. The manufacturer could successfully raise the defence of contributory negligence against the claimant in any negligence action.
E. The claimant will have a potential claim in negligence against the manufacturer. The manufacturer will be able to successfully argue that an intermediate examination of the cooker by the shop or the claimant should have revealed the danger.
Option B is correct because the claimant will have a potential contractual claim against the shop and a possible claim against the manufacturer under both negligence and the CPA. The claim in negligence is on the basis that it failed in its duty to act as a reasonable manufacturer.
Option A is wrong because a claim under the CPA is possible but s5(2) CPA prevents recovery for the repair or replacement of the defective product.
Option C is wrong because both claims allow her to recover for her injuries.
Option D is wrong because the claimant can pursue both claims. However, the manufacturer cannot raise the defence of contributory negligence against the claimant as the claimant did not behave in a manner that suggested that she failed to take reasonable care for her own safety.
Option E is wrong because the defect was hidden, being an issue with the operation of its ignition switch. The claimant had used the cooker a number of times before the incident occurred so she would not have had any reason to believe there was any such problem.
A solicitor is instructed by a manufacturer of exercise bikes. They have been notified of a claim by a customer. The details of the claim are that the customer bought one of the top of the range exercise bikes from a sports shop that has subsequently ceased trading. They took the bike home, opened the packaging that the bike was supplied in by the manufacturer and read the instruction booklet carefully before using it for the first time. The customer is a professional violinist and decided to practise their violin at the same time as trying out the exercise bike. After a couple of minutes the seat post on the bike collapsed. The customer fell off the bike, broke their arm, smashed their glasses worth £150, and caused extensive damage to their very expensive violin. The customer wants compensation for all these losses and also the cost of a replacement bike. The customer has had the bike inspected by an expert who believes that the seat post collapsed due to insufficient welding on the bike. The expert believes that this defect would not have been apparent on a visual inspection of the bike.
All the manufacturer’s products are sold subject to an exclusion of liability clause for all losses, howsoever caused.
Which of the following statements best explains whether the manufacturer may be liable for the customer’s losses in negligence?
A. No, because the manufacturer did not owe a duty of care to the customer. The duty of care was owed by the sports shop.
B. No, because the customer will not be able to prove breach of duty of care by the manufacturer.
C. No, because the manufacturer will be able to rely on its exclusion of liability for all the customer’s losses.
D. Yes, because the customer is likely to succeed in proving liability for all their losses except the cost of the bike.
E. Yes, because the customer is likely to succeed in proving liability for all their losses except the cost of the replacement bike and the damage to the very expensive violin.
E is the correct answer.
A is wrong because the duty of care will be owed by the manufacturer. Shops and other suppliers will rarely owe a duty of care in negligence to their customers. The exception to this is where the shop is expected to carry out an intermediate examination of the goods. There is nothing to suggest that the manufacturer expected the sports shop to do this. In fact, the bike appears to have been supplied in packaging by the manufacturer and, according to the expert, an inspection of the bike would not have revealed the defect in any event.
B is wrong because, on the facts given, it cannot be said that the customer will definitely not be able to prove breach of duty. There are facts on which the court can base its inference of breach of duty ie an expert who believes that the seat post collapsed due to insufficient welding on the bike. The court will infer breach of duty unless the manufacturer can rebut the inference of breach of duty by proving that the defect was not due to the defendant’s lack of care but to some later problem, for example the claimant’s own misuse of the product. This is unlikely to be the case on the facts. If the bike had been safe then the claimant’s actions would probably not have been unreasonable - just a little unusual.
C is wrong because the manufacturer cannot exclude liability for the personal injury due to the Consumer Rights Act 2015 and they will only be able to exclude liability for the other losses if the exclusion is deemed fair under the Act.
D is incorrect, because, while the customer may succeed in negligence for all their losses excluding the cost of the bike (as it is pure economic loss), a court may consider that the damage to the violin is too remote. It may not be reasonably foreseeable that a person would be playing a violin on an an exercise bike.
A man has been given a rowing machine for his home gym by his wife. On its first use the seat on the machine shot off the back of the rails due to a design defect. As the seat flew off the back it knocked over and damaged a water dispenser (which he purchased for £280). This caused water to spill over the man’s work laptop computer which was damaged beyond repair. The man sustained a whiplash type injury as a result of the incident.
In relation to a claim under the Consumer Protection Act 1987 (‘CPA’) which of the following best describes the man’s position?
A. Because the intention of the CPA is to provide protection to consumers in relation to unsafe products the man can only recover damages for personal injury.
B. The man will be able to recover for all pecuniary and non-pecuniary losses as long as they are foreseeable.
C. The man will be able to recover damages in relation to his personal injury, the damaged water dispenser and the laptop.
D. The man will not be able to recover any damages under the CPA because the rowing machine was a gift.
E. The man will be able to recover damages for personal injury and the damaged water dispenser only.
Option E is the best answer because the damaged water dispenser is (just) above the minimal amount of £275 set down in s.5(4) of the CPA and damages should be recoverable for this as well as damages for the injury sustained.
Option A is wrong because although the CPA provides consumers with protection in relation to unsafe products it covers certain pecuniary (financial) losses in addition to damages for any injury sustained.
Option B is wrong because there is no requirement that any losses should be foreseeable.
Option C is wrong because damages are unlikely to be recoverable for the man’s laptop as it is stated that it is a work computer. So even if it belongs to him (as opposed to say his employer) it is unlikely that it would be regarded as property for his own private use (under s.5(3)) as opposed to his business use.
Option D is wrong because it does not matter that the product in question was a gift for a claim under the CPA; that is only a relevant factor if the claim was brought in contract.
A chef invited a friend to dinner and decided to use the slow cooker she had recently purchased to cook the meal. The chef placed the ingredients into the cooker and turned it on. A heat tester which the chef had borrowed from her employer’s kitchen was placed next to the cooker as a reminder to test the food regularly during the cooking process. The chef then went out shopping. When she returned the contents of the cooker were splattered over the kitchen walls and the tiles next to the cooker had been discoloured. The cooker had shattered and parts of the glass lid and the base had scratched the kitchen floor. The heat tester had melted.
What losses will the chef be able to recover under the Consumer Protection Act 1987?
A. The costs of redecorating the kitchen, repairing the tiles and replacing the kitchen floor.
B. The costs of the cooker, redecorating the kitchen and replacing the kitchen floor.
C. The costs of the heat tester, redecorating the kitchen and replacing the kitchen floor.
D. The costs of the cooker, repairing the tiles and replacing the kitchen floor.
E. The costs of the heat tester, redecorating the kitchen and repairing the tiles.
Option A is correct because these are items of property damage which is recoverable. The cooker is pure economic loss and the heat tester is business property which belongs to her employer, both of which are not recoverable. Section 5 CPA 1987.
Option B is wrong because the cooker is not recoverable but the kitchen tiles are recoverable.
Option C is wrong because the heat tester is not recoverable but the kitchen tiles are recoverable.
Option D is wrong because the cooker is not recoverable but the redecoration costs are recoverable.
Option E is wrong because the heat tester is not recoverable but the kitchen floor is recoverable
A drugs company produced a new drug that proved to be very successful in the treatment of lung cancer. Before the drug was made available to lung cancer victims it was fully tested and extensive research was carried out within the drugs industry in an attempt to ensure that it would be free of potential defects. Unfortunately, patients who took the drug suffered a particular type of liver damage. In the leaflet distributed with the drug there was a warning that it could cause side effects.
Which of the following best describes the ‘development risks’ defence that the producer of the drug may be able to argue in accordance with the Consumer Protection Act 1987?
A. The producer had given a warning that the drug could cause side effects.
B. When making the drug, the producer had to comply with strict manufacturing requirements imposed by industry legislation.
C. The drug was produced using the safest methods possible at the time.
D. Given the knowledge available in the drugs industry at the time the drug was manufactured, it was not reasonable to expect the producer to have been aware that it could cause this particular type of liver damage.
E. At the time it was manufactured, there was no test available for the type of liver damage that was incurred.
Option D is correct because s4(1)(e) of the Consumer Protection Act 1987 confirms “the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control.”
Option A is not the best answer because it does not come within the remit of s4(1)(e).
Option B is not the best answer as this is relevant to the defence available under s4(1)(a) of the Consumer Protection Act 1987.
Option C is not the best answer because it does not come within the remit of s4(1)(e). Also, this argument would only be relevant at common law.
Option E is not the best answer as an argument about inability to test a product for the harm incurred was rejected in A v National Blood Authority [2001].
