Unit 7: Product Liability

Question 1

The narrow rule in Donoghue v Stevenson

Answer 1

To show duty of care under the narrow rule must establish:
- the defendant is a ‘manufacturer’
- the item causing damage is a ‘product’
- the claimant is a ‘consumer’
- the product reached the consumer in the form in which it left the manufacturer with no reasonable possibility of intermediate examination.

Question 2

Manufacturer definition

Answer 2

Any person who works in some way on a product before it reaches the consumer, including suppliers in cases where they should reasonably inspect or test the products they supply.

Question 3

Consumer definition

Answer 3

The ultimate user of the article, but also anyone whom the defendant should reasonably have in mind as likely to be injured by the defendant’s negligence.

Question 4

Intermediate examination

Answer 4

If there is a reasonable possibility of intermediate examination then the manufacturer will not owe a duty under the narrow rule. The duty may be owed instead by the party having the opportunity to examine the product. But if an examination by the supplier or consumer themselves would not have revealed the defect, the manufacturer will still be liable.

Question 5

Scope of duty under the narrow rule

Answer 5

Does not cover the cost of replacing/repairing the product itself. This would be considered pure economic loss.

Question 6

Proof of breach under narrow rule

Answer 6

Res ipsa loquitur, can infer some breach of duty.

Question 7

Defences for common law negligence

Answer 7

Volenti (continuing to use the product after noticing the defect), contributory negligence.

Question 8

Consumer Protection Act 1987

Answer 8

Provides additional cause of action to a claim in negligence. Greater protection for the consumer generally. Who can sue? Anyone who can establish:
- that they have suffered damage
- caused by
- a defect
- in a product.

Question 9

Damage under CPA

Answer 9

Includes personal injury; and loss of or damage to private property provided it exceeds £275. Excludes loss of or damage to business property; and the cost of repairing or replacing the defective product itself.

Question 10

Who is liable under CPA?

Answer 10

• The producer of the product
• an ‘own-brander’
• an importer
• a ‘forgetful’ supplier (if they cannot identify the producer or anyone in the chain of production (specific circumstances in s2(3)).

Question 11

Liability under CPA

Answer 11

Strict, claimant does not need to prove the defect resulted from any fault or carelessness on the defendant’s behalf. Does not need proof of fault.

Question 12

Defences for CPA

Answer 12

• The defect was attributable to compliance with legal requirements
• The defendant did not supply the product to another (eg if stolen)
• The defendant supplied the product otherwise than in the course of business (eg sold by one friend to another)
• The defect did not exist when the defendant supplied the product (eg fair wear and tear or misuse)
• A manufacturer of component parts is not liable for a defect in the finished product which is wholly attributable to the design of the finished product or to compliance with the instructions give by the manufacturer of the finished product
• ‘Development risks’ (‘state of the art’)
• Contributory negligence
  Note: under CPA cannot exclude, limit or restrict liability in any way.

Question 13

Liability in contract

Answer 13

Always consider a possible claim in contract!