Week 4- Liability for defective goods and premises

Question 1

What is the general premise of the Consumer protection act 1987 with regards to defective products?
What is the first limitation on what can be claimed as damage deriving from defectives products?

Answer 1

• This is once again a negligence-like tort, deriving from the case of Donoghue and Stephenson, concerned with the negligence of a drinks manufacturer who owed a duty of care to her ‘neighbour’ to prevent personal injury- someone with a direct relationship to the defendant which could be described as ‘proximate’ (not necessarily physical proximity was required).
• The consumer protection act 1987 increases the extent of liability on the part of the manufacturers, where a defect of their product causes damage. It only extends to consequential damage much like negligence, but no liability for damages by reference to the purchase price or value of the product, or damage done to the product itself. Liability is referred to under the act without any reference to fault on Ds behalf. There is no requirement that fault be established for the producer.
• The act does not dictate liability is established for all injury or damage caused by a product; there must be a defect in the product. This differs to common law negligence in that negligence would be in relation to design, manufacture or marketing of the product, whilst this tort is concerned with an actual defect of product. There may be negligence without defect in the product, but this would not fall under the Consumer protection act 1987.

Question 2

What does the CPA dictate the meaning of ‘producer’ to be?

What is a ‘product’ defined as?

Answer 2

(a) the person who manufactured it;
(b) in the case of a substance which has not been manufactured but has been won or abstracted, the person who won or abstracted it;
(c) in the case of a product which has not been manufactured, won or abstracted but essential characteristics of which are attributable to an industrial or other process having been carried out (for example, in relation to agricultural produce), the person who carried out that process;

“product” means any goods or electricity and (subject to subsection (3) below) includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise

Question 3

What does the EU directive on liability for defective products say?

Answer 3

-The EU product liability directive has dictated that product manufacturers take the risks of defectiveness, whether these risks are produced by lack of care or not, whilst consumers take the risks associated with non-defective products (subject to liability for contract and tort).

Question 4

What is the main defence under the CPA 1987?

Answer 4

Development risks defence
-The main defence is that a manufacturer would not be liable for subsequent damage sustained by a consumer from a defective product where the scientific knowledge at the time of production does not allow for the defect to be discovered by the producer.

Question 5

Who can be liable as a producer under s2 of the CPA?

For what are they liable for under the statute?

Answer 5

2 Liability for defective products

(1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.
(2) This subsection applies to—
(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trade-mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
(c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.

Question 6

What is a product as per the CPA? what limitations are there with regards to components?

Answer 6

1(2)(c) ”product” means any goods or electricity and (subject to subsection (3) below) includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise; … By section 2(3) (above), faulty component parts are treated as being separate products, and the party who is potentially liable if those components are defective is the producer (or importer, and so on) of those components, rather than of the product in which they are incorporated. However, the manufacturer of a component part will not be liable for damage done to the larger product in which it is incorporated: see section 5(2) extracted below, refining the definition of ‘damage’ recoverable under the Act

Question 7

What damage can a producer be liable for?

What is the monetary limit placed on actionable claims for defective products?

Answer 7

1) Subject to the following provisions of this section, in this Part “damage” means death or personal injury or any loss of or damage to any property (including land).
(2) A person shall not be liable under section 2 above in respect of any defect in a product for the loss of or any damage to the product itself or for the loss of or any damage to the whole or any part of any product which has been supplied with the product in question comprised in it.

(4) No damages shall be awarded to any person by virtue of this Part in respect of any loss of or damage to any property if the amount which would fall to be so awarded to that person, apart from this subsection and any liability for interest, does not exceed £275. (avoids litigation for trifling property damage)

Question 8

Overview of the CPA and its comparison to negligence regarding actionable damage and statutory limitations on recoverability?

Answer 8

The damages recoverable under the CPA are similar to those in negligence, and the damage must be to the person (death or personal injury) or to other property including land (but excluding damage to the defective product).
-Component parts are their own individual products, and it does not suffice that this component causes damage to product in which it is incorporated into.
-£275 minimum damage claim must be reached
Finally, damage to property not intended for private or family use (eg commercial property) is not recoverable under the act

Question 9

what is the meaning of ‘defectiveness’ as per the CPA? What is the general standard of product?

Answer 9

1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

The key question with regard to defects is whether the safety of the product is not such as persons generally are entitled to expect, with all the circumstances being taken into account. These may include the purposes and manner in which the product has been marketed, instructions, warnings, the time that the product was supplied.

Question 10

facts and significance of Tesco Stores v Connor Frederick Pollock 2006? Regarding understanding of defectiveness under CPA 1987?

Answer 10

Facts- the claimant was a 13-month old child who had swallowed dishwasher powder from a plastic bottle bought from Tesco, causing him to become seriously ill. The bottle was meant to have a “child resistant cap” yet the one year old managed to open it. Evidence showed the cap was far too easy to open compared to what was expected under British standards, although conversely it required much more force than was reasonably expected from a 13-month-old child. The question was, in the absence of a legal requirement for a child-proof cap, whether the product could be described as defective under the Consumer products act, and therefore if it provided the level of safety that persons generally would be entitled to expect of this product.

Significance- the action failed, and the product was deemed not to be defective.

• Laws LJ “What, on the facts here, were ‘persons generally entitled to expect’ of the safety features of this cap and bottle? In my judgment they were entitled to expect that the bottle would be more difficult to open than if it had an ordinary screwtop. Anything more specific, as a test of public expectation, runs into the difficulties which I have just described. Here, the bottle was more difficult to open than an ordinary screwtop, though not as difficult to open as it would have been if the British Standard torque measure had been complied with. There was, in my judgment, no breach of the 1987 Act.”
• Some might argue that some more specificity was required as to what the reasonable person could be entitled to expect from the bottle cap. Surely it merely required that any extra resistance required to open the cap compared to a normal cap would suffice for deeming the product not defective. Conversely, the resistance of the cap may be in the range of reasonable expectations of the product, even if towards the lower end of the spectrum of reasonable expectations which consumers are entitled to hold with regards to this product. Either way, for the purposes of the CPA, the screw top bottle could not be described as defective.

Question 11

A v National blood authority and another 2001 facts and significance?

Answer 11

Facts- All claimants had contracted Hepatitis from blood transfusions, and the actions were brought against the suppliers of the relevant blood products. At the time of the transfusions, the medical professions and the defendants were aware of the risk of Hepatitis C infection, but this knowledge was not shared with the general public. There was an ‘actual expectation’ of clean blood, but this was not the same as what the public was entitled to expect from a product, owing to their own lack of scientific knowledge of the risks. There was no test available to test the blood being used for the transfusion, so the risk of infection was unavoidable and not negligent. The only action that could be brought was under the CPA.

Significance- The question was whether or not the blood products were defective, even where it was unavoidable that some would be infected by Hepatitis C. It was held that they were defective, and the ‘development risks defence’ did not apply, as there was no way to find out which blood was infected.

• The binding judgement of the ECJ meant that, whilst the CPA had not incorporated the express words of the ECC directive, the judge construed the CPA with reference to the meaning of the ECC directive instead (whilst other cases decline to bypass the wording of the CPA) (Burton J)
• The blood was decided to be defective for the following reasons:
  1) The general public were unaware of the risk, even though the medical professionals were aware of the risk; the public were therefore entitled to expect clean blood based off of their own knowledge, even though the professionals knew it could be unattainable. Even though the blood supplied was no worse than any other blood which was supplied, the knowledge of the general public meant they were entitled to expect a higher quality than what they received; they were entitled to expect safe blood, but this was not supplied, and it was impossible for anything else to be supplied.

2) Unavoidability was irrelevant to the safety of the product; the fact that something is unavoidable will not afford a defence for the defendant, and it was not relevant for the test for defectiveness. The considerations in s3(2) affect the safety of the product and are to be considered eg who is going to use it, how it is likely to be used etc. Unavoidability has no place here.
3) The bags were non-standard. Whilst some products eg alcohol or tobacco are inherently risky, they carry the same risk, and it is up to the claimant’s individual characteristics or use as to how far this risk materialises. This is accepted by consumers, and so they are not entitled to expect anything from such products other than the potential harm which they may cause. Unlike this, some blood bags were infected, and some weren’t. There was no acceptance of the non-standard nature of the product. Those which weren’t infected were standard bags whilst those which weren’t were not; it did not matter that it was not ascertainable which were standard, and which weren’t. Further to this, inherently risky products inform the consumer of the risks, whilst the risks associated with the blood were not disclosed to the public. The risks associated with standard products of alcohol and tobacco aren’t avoidable, but they are disclosed and the same for all standard products, and therefore cannot be described as ‘defective’. (standard products can have design defects, which some would argue are present in tobacco/ alcohol).

Question 12

What is the difference between manufacturing defects and design defects?

Answer 12

A manufacturing defect is one which makes the product defective for the purposes of the CPA 1987, because it can be considered as non-standard when compared to how the product is usually made (and therefore what the public at large are entitled to expect from a non-manufacturing defect product). It has not been manufactured to the same level of safety as other products, which is why the public are entitled to expect a higher level of safety than is otherwise provided by this anomaly.

A design defect may still be a standard product, with the public at large accepting the defective design which is inherent in all of the same batch of products eg alcohol or tobacco, where the use and design of the product is inherently risky and dangerous (but the extent of the danger can be determined by many factors outside of the manufacturers control). The public is only entitled to expect a risk to the safety of their own health from tobacco or alcohol, as this is inherent in the design of the product.

Question 13

What is the difference between standard and non-standard products?

Answer 13

Non-standard products- products which are not at the standard expected by a producer ie compared to the rest of the same batch of products. Defects which arise in non-standard products are defective because the level of safety that the consumer is entitled to expect is likely to be that which the standard product without the manufacturing defect would provide. Therefore, you run the consumer expectation test, and it is likely that the defendant would be liable for the personal injury or property damage which resulted from this MANUFACTURING DEFECT
-Liability is strict under the CPA, and therefore it does not matter if the manufacturer could not avoid the manufacturing defect. Even if he could, in the case of A he would test all the blood for hepatitis C, and only supply standard products, then he is still liable unless all the standard products were not defective. The risk was unavoidable, and they were still liable.

Standard products: Standard products are a group of products which are all of the same quality and level of safety; the standard likely to be expected by the consumer, as they are entitled to expect this. Standard products may still be defective, as a result of a design defect, if they are inherently ‘unsafe’. Instead of running the consumer safety test, the avoidability test is incorporated into a risk-utility test. Was the cost of avoiding the defect, combined with the risk of the design defect so great as to outweigh the current benefits associated with the product? If the utility gained is higher than the risks and costs of failing to change the design, then there is no defect. This is a matter for the courts.

Question 14

What is the development risks defence for producers?

Answer 14

The development risks defence:
-The producer only takes the risks of defects that could have been discovered at the relevant time, otherwise a latent defect which could not be ascertained at the point of supply is a risk which falls upon the consumer. The key element is the ‘apportionment of risk’, as noted in the preamble to the EU directive 85/374/EEC:
“Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;
…
Whereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof that as to the existence of certain exonerating circumstances…”

It is suggested that the reason for this defence is to avoid the ‘deterrence of beneficial risk-creation’, in that they do not want to discourage innovation and stifle productive risks. Any issues with this defence may be further exacerbated by the UKs treatment of the directive, and the way in which they have ‘apportioned this risk’.

Question 15

What does the textbook suggest are the two main criticisms of the UK’s integration of the risk apportionment EU directive (recognising a defect)?

Answer 15

1. There is claimed to be a substantial difference between what a producer might be expected to discover, as in the Act; and what it would be possible to discover, given the existing state of knowledge, as in the Directive. It is argued by some that the former sets a standard of reasonable expectation, and is therefore quite similar to negligence. (p. 867)
   
   2. The UK wording seems to suggest that the relevant knowledge (when judging whether it would have been possible to recognize the defect) is knowledge of producers in the industry. The wording in the Directive seems to encompass scientific knowledge wherever it was being developed, rather than industry wide, making it a much more strict defence than the defence which the CPA seems to be incorporating.
      There has been some support for the UK’s interpretation of the development risks defence. For example Christopher Newdick suggested at the time of enactment that the version adopted by the UK simply expressed more clearly what would be the inevitable content of the test.”

Question 16

Facts and significance of Grant v Australian knitting mill 1936?

Answer 16

Facts- The claimant bought underwear from a company, and proceeded to wear them without washing them, as there were no instructions instructing him to do so. He suffered skin irritation as a result, which got progressively worse. He sued the manufacturer for being negligent, as the underwear allegedly contained high amounts of sulphites, which were dangerous.

Significance- There was a legitimate expectation that the garments would be fit for wearing, and the claimant only bought them for the natural and only reason of wearing them.
-The following comments from Lord Atkin in D v S were cited: “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

-Where a manufacturer knows that a consumer may be injured if the manufacturer does not take reasonable care, he owes a duty of care to the consumer to take reasonable care, so long as the products are expected to reach the consumer without any further intervention. Prior to this, in the preceding centuries, a duty of care was only owed where there was a particular relationship between the injured party and the negligent party; usually a relationship arising from a contract. This was extended in the UK by Donoghue v Stevenson, which said that a duty of care was owed to all neighbours who could reasonably be said to be within the proximity of the negligent party, who could reasonably be expected to be affected by the negligent person and suffer injury if a reasonable degree of care was not taken.

Question 17

Facts and significance of Muirhead v industrial tank specialists regarding negligence and loss?

Answer 17

Facts- The claimant was a fish merchant, who employed the defendants to supply fish tanks for the claimant to store lobsters. He would buy lobsters for cheap in the summer and sell for more in the winter. The defendants were an industrial tank specialist who subcontracted motor manufacturers for the pumps required for the tanks. The motors supplied were designed for use in France, where they use lower voltage. The pumps failed and the lobsters all died. As the tank company were insolvent, the claimant brought a claim in negligence for a number of things, including the cost of the pumps, the cost of the electrician who helped fix the pumps, the anticipated economic losses associated with future plans to store lobsters, and the loss of interest and profit as a result of the dead lobsters.

Significance- the case decided that pure economic loss cannot be recoverable under negligence- only foreseeable physical loss and consequential economic loss as a direct result of this physical loss could be recovered.

• The loss of profits which are consequential from the dead lobsters are recoverable, but pure economic loss including the further anticipated losses which he wanted to recover from more lobsters which he would eventually house in the tanks were not recoverable. This is not to say that pure economic loss is not recoverable in all cases, but it is certainly subject to restrictions eg Hedley Byrne
• “I therefore conclude that the third defendant should be held liable to the plaintiff, not in respect of the whole economic loss he suffered but only in respect of the physical damage caused to his stock of lobsters, and of course any financial loss suffered by the plaintiff in consequence of that physical damage”. per Robert Goff L.J

Question 18

Facts and significance of Hamble fisheries v Gardner 1999 following Hedley Byrne?

Answer 18

Facts- X manufactured dodgy engines and their engines were sold by retailers to the plaintiff (HF). The defendant bought the piston making business, and the dodgy engine caused pure economic loss to the claimant (but no physical damage to either person or property had occurred). The claimant sued D for failing to warn consumers that the engines were dodgy.
-The claimant also argued that where there was a known risk by the manufacturer that there could result in pure economic loss, the defendant should warn the claimant, and such a situation should not be limited to warning only of physical damage to person or property.

Significance- Pure economic loss was not recoverable where there was no contractual or proximate relationship showing a voluntary assumption responsibility by the defendants. As the claimant and the defendant had no dealings with eachother, the defendant had never voluntarily assumed any responsibility to warn the claimant of the danger. Cannot recover for pure economic loss unless certain circumstances exist eg assumed responsibility or some contractual elements.

Question 19

Facts and significance of Murphy V Brentwood DC 1991?

Answer 19

Facts- The local council had approved plans to build a house, despite defective designs leading to subsequent complications and pure economic loss (the builder failing to build sufficient foundations for the house). The claimant had to sell the poorly built house at a substantial loss, and sought to claim this loss back from the council as they approved the plans.

Signifincance- the court held that Anns v Merton should be overruled and that the council did not owe a duty of care to the house buyer, despite the fact they approved the plans. Rather, the only duty which the council owed was to protect the house owner from property damage or personal injury, neither of which had materialised.

“The House of Lords rejected that the duty owed by the council should extend to pure economic loss. Lords Keith and Bridge both relied on policy arguments in support of this conclusion. In particular, they highlighted the extent of such a duty and the burden it would impose on councils. Lord Keith concluded that such an extension, “would open up an exceedingly wide field of claims, involving the introduction of something in the nature of a transmissible warranty of quality.” As in D&F Estates, their Lordships also highlighted that this duty would extend further than what Parliament legislated for in the Defective Premises Act 1972, which the lords were unwilling to do”

Question 20

Facts and significance of D and F estates v Church commissioners 1989?

Answer 20

Facts- A builder had negligently plastered a wall, which was realised 15 years later when the house needed re-decorating. Contended whether the builder owed a duty to take reasonable care to avoid causing pure economic loss.

Significance- No duty was owed, a distinction was drawn between defects which caused damage to property or injury before they were discovered, or defects which merely inflicted pure economic loss.
-“According to Lord Oliver, Anns only made two extentions to the tort of negligence. Firstly, that a defendant is liable for the “creation of the risk or apprehension of damage involving the safety of person or property” (more than actual damage). Secondly, the case is important for extending the duty of care to public authorities.

Applying this to the current facts, Lord Oliver held that the loss was pure economic loss and therefore not recoverable: the defective plaster had not caused damage to a separate part of the building, nor posed a significant risk person or property.”

Question 21

Facts and significance of Targett v Torfaen BC 1992?

Answer 21

Facts- Claimant was a tenant of a council house, designed and built by the defendant (BC). The claimant suffered injury falling down an external set of stairs, with insufficient light and no handrail. The claimant was aware of the issue of the staircase.

Significance- The BC were liable, although the claimant was 25% contributorily negligent. The default position is not that a defendant can avoid liability where the claimant becomes aware of the defective premises, as it is not always in the power of the claimant to avoid the danger.

• This was the only entrance available to the claimant into his house, and it was not economically viable or unreasonable for him to be aware of the risk as well as failing to mitigate the risk. S4 of defective premises act.
• This case was also distinguished from Murphy as above, because that case was concerned with pure economic loss where no personal injury or property damage was yet caused. Pure economic loss was not recoverable, whereas consequential economic loss as a result of direct damage to persons or property was recoverable.
• Russell LJ: “A plaintiff’s knowledge of or opportunity to inspect a defect will not exclude D’s liability except where P was free to remove or avoid the danger (i.e. it was reasonable for him to do so) AND unreasonable for him to run the risk of injury.”
• Must have real choice to avoid the defect, if you can mitigate the risk yourself then you are expected to do so, and failure to do so which results in subsequent injury is not actionable

Question 22

What is the general application of the latent damage act 1986?

Answer 22

“In 1986, the Latent Damage Act introduced an extension to the ordinary six-year statutory limitation period. This extension is available for negligence claims for latent defects – a defect in a property, caused by a fault in design, materials or workmanship, that existed at the time construction was completed but was not apparent at the time of completion. It does not apply to personal injury claims, but rather damage to property; D and F estates shows that the damage is imperative.

Where there is a latent defect, the time limit is the later of:

Six years from the date of accrual of the cause of action being raised; and
three years from the earliest date on which the potential claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence
subject to an overall limit of fifteen years from the accrual of damage.

In other words, the Latent Damage Act introduces an element of ‘discoverability’ which provides for a further period of three years from the discovery of the latent defect, and yet still provides some element of certainty to construction contractors with the creation of a final claim date of fifteen years from the accrual of damage.”

Question 23

Wilkes v Depuy 2016 facts and significance?

Answer 23

Facts- The claimant had a hip replacement made by Depuy, which fractured 3 years later, requiring him to undergo replacement surgery. He brought a claim under the CPA.

Significance- The court held that, despite arguments that the design was faulty and the prosthesis was defective, that the claim failed, and the product had not been defective. The fracture was a rare but known risk, which the company had expressed on the label of the prosthesis.

• The approach to be taken is not what a “legitimate expectation” of the consumer is with regards to the product (departing from A v national blood authority) but reaffirming that objective test as to what level of safety consumers are “entitled to expect” from the product.
• The first step to take was not to find what damage had been caused from the product, but whether the productive was first ‘defective’ within the provisions of s3(2) of the CPA 1987.
• Things which must be taken into consideration as to what consumers are generally entitled to expect have no boundaries.
• “It accepts that the risk a product may cause injury may be outweighed by its benefits, even If that risk could have been eliminated by adopting a different design. The decision should also deter speculative claims, particularly when the product has obtained regulatory approval or has met relevant standards.”

Question 24

What changes to the law on defects and non-standard products does Wilkes v Depuy introduce following A v national blood authority?

Answer 24

-That the distinction between standard and non-standard products may not always be helpful, because it prevents a risk-benefit analysis being properly explored to determine whether the public accept the risky nature of a product, and therefore ascertain whether they are ‘entitled to expect’ a given level of safety. Further confusion with design and manufacturing defects.

• “Under s3 (1) of the 1987 Act there is a “defect” in the product if it’s safety is “not such as persons generally are entitled to expect”. In a departure to the approach adopted in A v National Blood Authority, the Court held that the focus must first be on whether the product suffered from a “defect” and not on identifying “the harmful characteristic which caused the injury”. The latter circular approach was rejected by the Court as it prematurely considered the issue of causation before properly identifying the defect. The Court also confirmed that the test as to the level of safety is objective. The level of safety persons “generally are entitled to expect” is not what a person or persons actually expect or generally expect, but what, as a matter of law, they are entitled to expect.
• The Court rejected the approach adopted A v National Blood Authority which considered the “legitimate expectation” of persons generally in dealing with this question. This was held to be an “unnecessary and unhelpful gloss on the Act”.” (Clyde and Co).

Question 25

What are included in the landlord duties under the Defective premises act?

Answer 25

Landlord’s duty of care in virtue of obligation or right to repair premises demised.

(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.
(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.
(3) In this section “relevant defect” means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises; and for the purposes of the foregoing provision “the material time” means—
(a) where the tenancy commenced before this Act, the commencement of this Act; and
(b) in all other cases, the earliest of the following times, that is to say—
(i) the time when the tenancy commences;
(ii) the time when the tenancy agreement is entered into;
(iii) the time when possession is taken of the premises in contemplation of the letting.
(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.

Question 26

What does Case c-300/95 v UK Commission suggest is the extent of the development risks defence?
How strict is the development risks defence (ie to what extent does the EU directive on liability for defective products favour the plaintiff?)

Answer 26

The Court held that there was no necessary conflict between s.4(1)(e) of the Consumer Protection Act 1987 and Article 7(e) of Council Directive 85/374. There was no indication that the national courts would not construe s.4(1)(e) in a narrow and objective manner.

This Case is Authority For…
The research development defence does not concern the knowledge available or the standards in use in the producer’s industry. The relevant scientific and technical knowledge is the most advanced knowledge accessible at the time the product was put into circulation. The subjective knowledge of the producer is therefore irrelevant.

This clearly favours the claimant much more than the producer, considering the subjective knowledge of the producer is held to be irrelevant.