9. Liability in Tort for Defective Products

Question 1

What are the usual elements of negligence which must be proven when a claimant is injured by a defective product?

Answer 1

1. Duty or care
2. Breach of duty
3. Causation

Usual defences available.

Question 2

What two conditions must be satisfied for a manufacturer to owe a duty of care in negligence to the end customer of that product?

Answer 2

1. Manufacturer put the product into circulation in the form in which it is intended to reach the end consumer, and
2. No reasonable expectation of an intermediate examination of the product before reaching the consumer

Question 3

To whom will the manufacturer owe a duty in negligence?

Answer 3

Anyone whom it is reasonably foresee would be affected by a defect in the product

Question 4

Who is the duty of care in negligence for a defective product owed by?

Answer 4

The person who manufactured the product, but the class of defendants can also extend to those who install/repair products

Question 5

Will a retailer who merely supplies a product generally owe a common law duty of care?

Answer 5

No, unless they reasonably ought to have inspected the product for defects before supplying it

Question 6

What is the extent of the duty of care in negligence for a defective product which will be owed by a manufacturer?

Answer 6

Personal injury caused by the product and economic loss consequential to the injury. And property damage.

Question 7

Does the duty of care in negligence extend to damage caused to property by a defective product?

Answer 7

Yes, but damage caused to the defective product is specifically excluded and cannot be claimed for.

Question 8

Are the usual negligence defences available?

Answer 8

Yes

Question 9

What is the strict liability regime under the Consumer Protection Act 1987 for damage caused by defective products?

Answer 9

When damage is caused by a defect in a product in a consumer context, it is not necessary to prove that it arose because of fault on the part of the defendant, but it is still necessary to prove the defect

Question 10

Who can claim under the CPA product liability regime?

Answer 10

Anyone who suffers damage caused by a defect: not limited to people who purchased the product as would usually be the case in a contractual claim), nor even limited to people who used the product.

NB: business losses cannot be recovered under the CPA.

Question 11

What three categories of parties may be a defendant under the CPA regime?

Answer 11

1. Manufacturer/producer of the product
2. Any person who held themselves out as a manufacturer/producer of the product by putting their own mark on it, and
3. Any person who imported the product to supply it in their course of business

Question 12

Under the CPA regime, what is the liability of each defendant where there are two or more defendants?

Answer 12

Joint and several

Question 13

What three conditions must be satisfied for a supplier to be liable under the CPA regime?

Answer 13

1. Person who suffered damage requests identity of producer within a reasonable time
2. Not reasonably practicable for the claimant to identify the producer on their own, and
3. Supplier fails to identify the producer (or its own supplier) within a reasonable time

Question 14

Under the CPA regime, when is a product defective?

Answer 14

When its safety is not of the standard people generally are entitled to expect

• higher standard of expectation than in negligence. Wider than ‘reasonable care.’

Question 15

In determining whether a product’s safety is not of the expected standard and therefore defective, what will be taken into account?

Answer 15

1. The manner and purposes for which it was marketed
2. What might reasonably expect to be done with/ in relation to the product
3. Instructions and warning provided
4. The time of supply (e.g., mobile phones changing consumer base)

Question 16

What is the definition of damage under the CPA regime?

Answer 16

Death or personal injury, or damage to personal property (value over £275)

Question 17

Damage to what three things is excluded under the CPA regime?

Answer 17

1. Damage to the defective product itself (contract option still available)
2. Business property (naturally as it is the Consumer Protection Act)
3. Property damage which does not exceed £275

Question 18

What are the six defences available under the CPA regime?

Answer 18

1. Contributory negligece
2. Product not supplied in the course of business
3. Defect did not exist in product at time of supply (ie. misuse of product, best before date on goods).
4. State of the Art defence - not known or forseeable at date of circulation.
5. Manufacture of component is not liable if finished product is defective and defect is due to a flaw in design of finished product.
6. Limitation period

Question 19

What two conditions must be met to argue the defence that the product was not supplied in the course of business?

Answer 19

1. Defendant was not acting in the course of business when they supplied, and
2. Defendant either was not the producer of the product, or the defendant was not acting with a view to profit

Question 20

What must be shown for the state of the art defence?

Answer 20

Due to the state of scientific and technical knowledge at the time the product was supplied, the producer could not have been expected to discover the defect even if it existed

Question 21

In what situation is the state of the art defence not available?

Answer 21

Where a class of products carries a known risk of containing a defect and a defect arises, the defence will not be available

Question 22

Can liability be excluded under the CPA regime?

Answer 22

No

Question 23

What four elements are relevant in establishing a claim for product liability at common law?

Answer 23

governed by negligence principles
1) Defendant must be a manufacturer;
2) Product must have caused damage;
3) To its ultimate consumer - anyone; foreseeably affected by the product.
4) No likelihood of intermediate examination (ie. coca-cola can)

Question 24

Where a claimant is aware of the product’s defect/danger, will they be liable if they continue to use it?

Answer 24

yes

Question 25

What is the limitation period for a claim for product liability under the CPA 1987?

Answer 25

three years from injury or damage.
or
10 years from date product was put in circulation.

Question 26

How are products defined under the CPA 1987?

Answer 26

product liability under statute extends to any goods, electricity, product comprised in another product.
- goods includes substances, growing crops, things attached to land, ship, vehicle, aircraft.