Liability for defective products

Question 1

Whats the difference between a claim in contract and tort for liability for defective products?

Answer 1

In contract, there is strict liability - fault doesn’t need to be proved.

In tort, negligence requires proof of fault

Cost of defective product itself can be recovered in contract, in tort it is pure economic loss and therefore is not recoverable

Third party can sue in tort, in contract you need privity of contract

Question 2

Common law negligence - what do you need to establish to recover?

Answer 2

1. manufacturer owes a dut of reasonable care to consumer IF the manufacturer doesn’t expect the product to be examined after leaving the manufacturer
2. Duty owed to anyone who the manufacturer could reasonably foresee is likely to be affected by defect
3. Duty is owed by the manufacturer (not retailer)

Where the retailer is expected to inspect the product, then retailer owes duty to inspect.

4. Duty is breached if claimant can show that there was a manufacturring defect or a design defect

Duty covers personal injury and consequential economic loss

Assumption of risk and contributory negligence = defences

Question 3

When can a claimant claim under the Consumer Protection Act 1987 (CPA)?

Answer 3

Regime of strict liability: when there is a defective product

Anyone who suffers damage by defective product is a potential claiamant

A product is defective where:
- Instructions and warnings are insufficient
- Product packaging or marketing implied the product could be used for something it can’t safely be used for
- Product wasn’t safe to use which it should reasonably be used for (eg a ladder that can hold 250kg should be able to hold 260kg)

Question 4

Who is a potential defendant under the CPA?

Answer 4

• the manufacturer
• anyone who holds themselves out as a anufacturere
• Anyone who imported the product

Question 5

When can a supplier be a potential defendant of a defective product under the CPA?

Answer 5

Only if:
- the claimant requests the name of the manufacturer/importer from the supplier;
- it isn’t reasonably practical for the claimant to identify those people independently; AND
- The supplied doesn’t identify the manufacturer or importer

Question 6

Is damage to business property recoverable under the CPA? What is the minimum value of damage to private property for it to be recoverable?

Answer 6

No.

And damage for privately used property must **exceed £275 ** to be recoverable

Question 7

What are the potential deffences under the CPA?

Answer 7

That the defect didn’t exist when it was supplied by the producer/importer

‘state of the art’ is a defence - that the product couldn’t have been made without the defect, because the technical knowledge didn’t exist at the time

Contributory negligence can be as a defence

Liability for a defective product cannot be excluded or limited under CPA