Liability for Defective Products

Question 1

A person injured by a defective product can bring a contractual claim under the which Act?

They can also bring a tort claim under what common law doctrine?

Answer 1

Sales of Goods Act 1979

Negligence

Question 2

Describe three key distinguishing features between a contract claim and a negligence claim for defective products

Answer 2

1. Contract claim is strict liability, negligence requires proof of fault
2. Cost of the defective good is recoverable in contract, it’s not recoverable in tort as it’s pure economic loss
3. Claimant in a contract claim must usually have privity, this isn’t required for negligence claim

Question 3

When will a manufacturer owe a duty to take reasonable care to a consumer who uses their product?

Answer 3

If the manufacturer doesn’t expect the product to be examined after leaving the manufacturer and before reaching the consumer

Question 4

Who is a manufacturer’s duty to take reasonable care owed to?

Answer 4

Anyone whom the manufacturer could reasonably foresee as likely to be affected by a defect

Question 5

When may a retailer owe a duty to reasonably inspect a product?

Answer 5

When the defective product is of a type for which inspection is expected

Question 6

Consumer Protection Act 1987 creates a regime for what type of liability for damage caused by defective products?

Answer 6

strict liability

(i.e. C does not have to prove D was at fault, just that the product was unsafe for reasonably expected use)

Question 7

The CPA 1987 provides that there is a defect in a product if what?

Answer 7

If its safety is not such as persons generally are entitled to expect

Question 8

Describe three situations where a product may be defective under the CPA 1987

Answer 8

1. Insufficient instructions/warning
2. Misleading packaging or marketing
3. Unsafe for reasonably expected use

Question 9

Who are four potential defendants under CPA 1987?

Answer 9

1. Producers ( e.g. Manufacturers)
2. Own-brander
3. Importers
4. Suppliers (only if requirements are met)

Question 10

What are the three requirements for a supplier to be held as a defendant under CPA 1987?

Answer 10

1. Claimant reasonably requests the name of one of the other producers
2. It’s not reasonably practicable for C to identify these producers independently, and
3. The supplier fails to identify the producter/importer

Question 11

Is damage to the defective product itself recoverable under CPA 1987? Why/why not?

Answer 11

No - it’s classed as pure economic loss which generally isn’t recoverable in tort

Question 12

Is damage to business property recoverable under CPA 1987?

Answer 12

No

Question 13

Is damage for private property recoverable under CPA 1987?

Answer 13

Yes if it exceeds £275

Question 14

Actions under CPA 1986 must be started within _ ______ from the date when C first had a cause of action or (if later) first knew or should have known the material facts, but not later than __ _____ from when the product was put into circulation.

Answer 14

3 years, 10 years

Question 15

Can liability under CPA 1987 be excluded by?:
1. Contract
2. Notice

Answer 15

1. Contract - No
2. Notice - No

Question 16

What are 5 defences to a claim under the CPA 1987?

Answer 16

1. Contributory negligence (partial defence)
2. Statutory requirements
3. D was not acting in the course of business
4. Defect didn’t exist at the time of supply
5. ‘State of the art’ defence

Question 17

What is the ‘state of the art’ defence?

Answer 17

Where the product couldn’t have been made without the defect at the time it was supplied, because technical/scientific knowledge needed to make it safer didn’t exist at the time