Product liability Flashcards
q
A man buys some moisturiser. The packaging states ‘test the product on a small area of skin and wait 15 minutes before use all over the body. Do not use if a rash occurs’. The man tests the moisturiser on his arm and waits 5 minutes without any reaction. He then applies it to the rest of his body and later experiences a severe rash.
Which of the following statements most accurately reflects whether the man can successfully bring a claim in the tort of product liability under the Consumer Protection Act 1987?
The claim will likely succeed because the warning clearly explains what consequences may occur after the skin test.
The claim will likely succeed because the warning is on the packaging not the product itself.
The claim will not likely succeed. The warning is sufficiently clear about how long to wait and it was not reasonable for the man to wait for only 5 minutes.
The claim will likely succeed because the manufacturer produced a defective product.
The claim will likely succeed. The warning is not sufficiently clear about how long to wait and it was reasonable for the man to wait for only 5 minutes.
The claim will not likely succeed. The warning is sufficiently clear about how long to wait and it was not reasonable for the man to wait for only 5 minutes.
Correct. It seems unreasonable to only wait 5 minutes. If the manufacturer has given an adequate warning which the claimant has not followed then the manufacturer will likely successfully be able to argue that the product was not defective. The warning would be a reason for the man’s claim to fail because he was given adequate warning of what to do and what consequences to watch out for. A claim will not necessarily succeed simply because the warning was not on the product itself.
An NHS Trust is being sued by a number of patients under the Consumer Protection Act 1987. The patients claim to have been transfused with blood infected by hepatitis in one of the Trust’s hospitals. The Trust wishes to say in its defence that it took all reasonable steps to prevent such a thing occurring, and that in any event the risk of infection was very small. The Trust wishes to know whether the blood was a defective product. Which one of the following is the best advice to give as to the question the court will ask itself when determining whether the blood was defective?
In deciding whether or not the blood was defective, the court will judge the Trust against the standard of the reasonably competent NHS Trust.
In deciding whether or not the blood was defective, the court will examine the expectations of the individual claimants in this litigation.
In deciding whether or not the blood was defective, the court will have regard to the expectations patients generally have a right to have.
In deciding whether or not the blood was defective, the court will ask itself whether the Trust took as much care as its resources would allow to guard against infection.
In deciding whether or not the blood was defective, the court will consider that the state of scientific knowledge was not such as could have allowed the risk of infection to be discovered.
In deciding whether or not the blood was defective, the court will have regard to the expectations patients generally have a right to have.
Correct. Under Section 3 of the Consumer Protection Act 1987 we find the test for whether a product is defective and this option is the closest to the wording of that test. Considering the other answers, it is the expectations of ‘persons generally’ which are crucial, not the expectations of the particular claimants. Neither the concept of ‘the standard of the reasonably competent NHS Trust’ nor an assessment of the Trusts resources are part of the test. The ‘state of scientific knowledge’ may be relevant to a defence, but not to considering liability in the first instance.
A manufacturer makes a defective car and sells it to a car dealership. The car dealership sells the car to a woman. The brakes on the car malfunction due to the defect and the woman suffers serious injuries in a car crash from which she dies several weeks later. The woman’s estate asks the car dealership for the name of the manufacturer because they have no other way of ascertaining it. The car dealership refuses to disclose the name of the manufacturer.
Which of the following statements most accurately reflects the claim(s) that the woman’s estate can currently bring in the tort of product liability under the Consumer Protection Act 1987?
The woman’s estate cannot bring any claims because claims cannot be brought on behalf of a dead person’s estate.
The woman’s estate can only bring a claim against the car dealership.
The woman’s estate can only bring a claim against the manufacturer.
The woman’s estate cannot bring any claims because whilst claims can in principle be brought on behalf of a dead person’s estate, in this particular case, there is no cause of action.
The woman’s estate can bring a claim against the manufacturer and the car dealership.
The woman’s estate can only bring a claim against the car dealership.
Correct. A claim can be brought against the car dealership as a supplier of the defective product that refuses to identify the manufacturer under s 2 (3) of the Consumer Protection Act 1987. A claim cannot currently be brought against the manufacturer because the identity of the manufacturer is not known. Claims can be brought on behalf of a deceased person’s estate.
A woman buys a new steam cleaner. Two weeks later, while she is using it, it overheats and explodes causing irreparable damage to her wedding dress which had been hanging in the room. The dress is ruined and the wedding, due to be held the next day, has to be postponed. She purchases a replacement steam cleaner. Which of the woman’s losses are in principle recoverable if she brings a successful negligence claim against the manufacturer of the steam cleaner?
The woman will be able to claim for the damage to the dress and the costs of postponing the wedding, but not for the cost of replacement of the steam cleaner.
The woman will not be able to claim for the cost of replacement of the steam cleaner, the wedding dress nor the costs of postponing the wedding.
The woman will be able to claim only for the cost of replacement of the steam cleaner.
The woman will be able to claim only for the costs of postponing the wedding.
The woman will be able to claim for the damage to the dress, the costs of postponing the wedding and the cost of replacement of the steam cleaner.
The woman will be able to claim for the damage to the dress and the costs of postponing the wedding, but not for the cost of replacement of the steam cleaner.
Correct. The cost of repair or replacement of an inherently defective product itself is not claimable in general negligence; this is regarded as pure economic loss. A claim can also be brought in relation to the ruined dress. It may be arguable that the wedding did not have to be postponed, just because the dress was ruined, in which case the postponement costs may not be recoverable, but the woman would be best advised to make the claim.
A chemist is being sued by several customers under the Consumer Protection Act 1987 who claim that a brand of the chemist’s own cough mixture has caused allergic reactions leading to fever and a painful rash. The chemist will say it has taken all reasonable care in the manufacturing process, and the medical evidence is virtually unanimous in saying that there is no known risk of such a reaction through taking this cough mixture. Only one article, published in Mandarin by a final year biochemistry undergraduate on his personal blog (which has 10,000 regular visitors) sets out research which indicates a 2% risk of such a reaction. This article was published one week ago. The chemist wishes to rely on the ‘development risks’ defence. Which one of these is the most accurate advice to give?
The defence might apply. The court will have to consider whether the blog article is sufficiently mainstream to bring the matter within the state of scientific knowledge.
The defence will apply as a reasonable body of medical opinion says there is no risk.
The defence will apply. It does not matter whether or not the blog article is considered mainstream in this case.
The defence will not apply as the risk has now been discovered.
The defence will apply. The risk has been published and is therefore within the state of scientific knowledge.
The defence will apply. It does not matter whether or not the blog article is considered mainstream in this case.
This is correct. The development risks defence judges the state of scientific knowledge at the time the product was put into circulation, so this article is not included in it. The discussion about whether the blog article is sufficiently mainstream to prevent the defence is therefore not relevant. Considering the other answers. The ‘reasonable body of medical opinion’ sounds more like negligence and the Bolam test, but the Consumer Protection Act is a different regime. ‘Discovering’ the risk or something being published about it is not enough to prevent the defence from applying.
Question 1
A solicitor is instructed by a manufacturer of exercise bikes. They have been notified of
a claim by a customer. The details of the claim are that the customer bought one of the
top- of- the- range exercise bikes from a sports shop that has subsequently ceased trading.
They took the bike home, opened the packaging that the bike was supplied in by the
manufacturer and read the instruction booklet carefully before using it for the first time. The
customer is a professional violinist and decided to practise their violin at the same time as
trying out the exercise bike. After a couple of minutes the seat post on the bike collapsed.
The customer fell off the bike, broke their arm, smashed their glasses worth £150, and
caused extensive damage to their very expensive violin. The customer wants compensation
for all these losses and also the cost of a replacement bike. The customer has had the
bike inspected by an expert who believes that the seat post collapsed due to insufficient welding on the bike. The expert believes that this defect would not have been apparent on
a visual inspection of the bike.
All the manufacturer’s products are sold subject to an exclusion of liability clause for all
losses, howsoever caused.
Which of the following statements best explains whether the manufacturer may be
liable for the customer’s losses in negligence?
A No, because the manufacturer did not owe a duty of care to the customer. The duty of
care was owed by the sports shop.
B No, because the customer will not be able to prove breach of duty of care by the
manufacturer.
C No, because the manufacturer will be able to rely on its exclusion of liability for all the
customer’s losses.
D Yes, because the customer is likely to succeed in proving liability for all their losses
except the cost of the bike.
E Yes, because the customer is likely to succeed in proving liability for all their losses
except the cost of the replacement bike and the damage to the very expensive violin.
Answer
Option E is correct.
Option A is wrong because the duty of care will be owed by the manufacturer. Shops and
other suppliers will rarely owe a duty of care in negligence to their customers. The exception
to this is where the shop is expected to carry out an intermediate examination of the goods.
There is nothing to suggest that the manufacturer expected the sports shop to do this. In fact,
the bike appears to have been supplied in packaging by the manufacturer and, according to
the expert, an inspection of the bike would not have revealed the defect in any event.
Option B is wrong because, on the facts given, it cannot be said that the customer will
definitely not be able to prove breach of duty. There are facts on which the court can base
its inference of breach of duty, ie an expert who believes that the seat post collapsed due
to insufficient welding on the bike. The court will infer breach of duty unless the manufacturer
can rebut the inference of breach of duty by proving that the defect was not due to the
defendant’s lack of care but to some later problem, for example the claimant’s own misuse
of the product. This is unlikely to be the case on the facts. If the bike had been safe then the
claimant’s actions would probably not have been unreasonable – just a little unusual.
Option C is wrong because the manufacturer cannot exclude liability for the personal injury
due to the Consumer Rights Act 2015 and they will only be able to exclude liability for the
other losses if the exclusion is deemed fair under the Act.
Option D is wrong, because, while the customer may succeed in negligence for all their losses
excluding the cost of the bike (as it is pure economic loss), a court may consider that the
damage to the violin is too remote. It may not be reasonably foreseeable that a person would
be playing a violin on an exercise bike.
Question 2
A solicitor is instructed by a manufacturer of exercise bikes. They have been notified of
a claim by a customer. The details of the claim are that the customer bought an exercise
bike from a sports shop. They took the bike home, opened the packaging that the bike
was supplied in by the manufacturer and read the instruction booklet carefully before using it for the first time. After a couple of minutes the seat post on the bike collapsed.
The customer fell off the bike, broke their arm, and smashed their glasses worth £150.
They also caused extensive damage to their very expensive violin that was near the bike
at the time. The customer is a professional violinist and wants compensation for all these
losses, their income lost as a result of not being able to play the violin and the cost of a
replacement bike.
The manufacturer has made thousands of this particular exercise bike without any
complaints of this nature. They have investigated their production records and are confident
that they are not at fault in any way.
All the manufacturer’s products are sold subject to an exclusion of liability clause for all
losses, howsoever caused.
Which of the following statements best explains whether the manufacturer may be
liable for the customer’s losses under the Consumer Protection Act 1987?
A Yes, because the manufacturer will probably be held liable for all the losses except the
cost of the replacement bike and the cost of the glasses.
B Yes, because the manufacturer will probably be held liable, but only for the personal
injury and the customer’s lost income.
C No, because the customer should be bringing a claim against the sports shop in
contract.
D No, because the manufacturer will be able to rely on its exclusion of liability for all the
customer’s losses if the clause is fair.
E No, because the customer will not be able to prove that the manufacturer was at fault.
Answer
Option B is correct. The customer suffered ‘damage’ for the purposes of the CPA 1987 as they
have broken their arm, and their consequential lost earnings, due to their inability to play the
violin with a broken arm. They will not be able to claim for the cost of repairing or replacing
the bike as damage to the defective product itself is excluded by the Act. Neither will they
be able to recover the cost of the damaged violin if it is regarded as ‘business’ property. The
cost of replacement glasses will not be recoverable as they are worth less than £275. The
customer’s recoverable losses were caused by a ‘defect’ as the safety of the bike was not
such as persons generally were entitled to expect in all the circumstances. The bike is clearly
a ‘product’ for the purposes of the CPA 1987. The customer will be able to claim against the
manufacturer of the bike as the producer of the product.
Option A is wrong as it fails to consider that the violin will not be recoverable as it is business
property.
Option C is wrong because, while the customer would also have a claim in contract against
the shop, this does not mean that the customer is barred from bringing an alternative claim
against the manufacturer under the CPA 1987 and/ or negligence.
Option D is wrong because it is not possible to exclude liability under the CPA 1987; the
question of whether the exclusion is fair is irrelevant.
Option E is wrong because liability under the CPA 1987 is strict. It is irrelevant, therefore, that
the manufacturer may have evidence that they are not at fault (subject to the defence that the
defect did not exist when the defendant supplied the product).
Question 3
A client has sought advice of a solicitor arising from the following events. The client lives in
a ground floor flat. The client works from home as an IT consultant and their very expensive
laptop, which they use for their work, has been damaged beyond repair. This was caused
by water from a washing machine in the flat upstairs leaking into their flat. The owner of
the upstairs flat’s washing machine was brand new and was installed by an independent
contractor. It appears that the contractor had forgotten to correctly tighten one of the hoses
on the washing machine and this is why the water leaked into the client’s flat.
Which of the following statements best explains whether the client may be successful in
a claim for the cost of their laptop against the independent contractor under both the
Consumer Protection Act 1987 (CPA 1987) and negligence?
A No, because it is not generally possible for a claim to be commenced under both the
CPA 1987 and negligence; claimants must choose between the two claims.
B No, because, while a claim under the CPA 1987 may succeed as the washing machine
was defective, the claim in negligence is bound to fail as the independent contractor
was not a manufacturer.
C No, because the claim under the CPA 1987 is bound to fail as the independent
contractor is not a potential defendant under the CPA 1987. The claim under
negligence may succeed.
D Yes, because liability under the CPA 1987 is strict and the claim under negligence may
also succeed.
E Yes, because the independent contractor is a potential defendant under the CPA 1987
and liability under the CPA 1987 is strict. The claim in negligence may also succeed
Answer
Option C is correct. The CPA 1987 claim is bound to fail as the independent contractor
is not one of the potential defendants under the CPA 1987 as they are not a producer of
the product, an ‘own-brander’, an importer or a ‘forgetful’ supplier. (It is also questionable
whether the washing machine itself was ‘defective’ because, if it was unsafe, this was due
to the actions of the installer.) The negligence claim is likely to succeed. The independent
contractor is a ‘manufacturer’ who owes a duty to the client as a ‘consumer’ (it is reasonably
foreseeable that the client would be affected by the contractor’s actions and there is nothing
to suggest that an intermediate examination of the contractor’s work would be expected). The
contractor’s breach of duty by failing to tighten a hose has caused reasonably foreseeable
harm to the client.
Option A is wrong because it is generally possible for a claim to be commenced under both
the CPA 1987 and negligence. The claimant cannot, however, recover damages twice over for
the same loss.
Option B is wrong because the claim under the CPA 1987 is bound to fail for the reasons
discussed above. Option B is also wrong because the term ‘manufacturer’ (under the narrow
rule from Donoghue v Stevenson) has been interpreted to include installers. The independent
contractor is, therefore, a potential defendant in negligence.
Option D is wrong because, while liability under the CPA 1987 is strict, the independent
contractor is not one of the potential defendants under the CPA 1987.
Option E is incorrect for the same reason as option D.
Question 21
A man is using his new mountain bike which is a state of the art product. It has a specially developed metal frame which enhances the bike’s performance over rough terrain. However, due to metal corrosion in some of the screws, which was unforeseeable, the handle bar snaps in two when the man is using it. He breaks both wrists.
Which of the following best explains whether the man can recover damages for his injuries under the Consumer Protection Act 1987?
A. Yes, because the bike is defective.
B. Yes, because there has been a breach of the duty of care.
C. Yes, because his injuries are not too remote.
D. No, because the injuries were not foreseeable.
E. No, because damages for personal injuries are not awarded under the Consumer Protection Act.
A - Yes, because the bike is defective.
