Product Liability Flashcards
(14 cards)
Product liability can be assessed through negligence and the Consumer Protection Act 1987.
Looking first at negligence, what are the required elements for a claimant to succeed in a product liability claim?
Duty of care - there is an established duty of care between consumers and manufacturers
C must therefore establish that there is:
* A manufacturer
* The item causing damage is a product
* The claimant is a consumer
* The product reached them in the same form as it left the manufacturer with no probability of intermediate examination
Breach
Causation
Consider defences
Under negligence, who is a manufacturer?
Includes person who produces goods, but also includes people who work on the product, like repairers and installers + more rarely, suppliers if they ought reasonably to have inspected the product before sale
Under negligence, what is a product?
It includes the item, as well as the packaging and instructions of use
Under negligence, who is a consumer?
Anyone who the manufacturer ought reasonably to have in their minds as being affected by the product
- Bystander walking beside a faulty car can be construed as a consumer
- Someone living in a flat underneath the owner of a faulty washing machine
Under negligence, what is meant by ‘no probability of intermediate examination?’
If there is this probability, and this would have revealed the defect in the product, the duty is then owed by the person who ought reasonably to have carried out the examination
- Must be a reasonable probability of examination that would have revealed a defect
- If it doesn’t apply, then the duty is still owed by the manufacturer
Under negligence, what types of harm/damage/injury can the claimant claim for?
Personal injury, death, damage to other property are claimable, but not the product itself
- This is pure economic loss so not claimable)
Under negligence, what is required to prove breach and what factors will be relevant?
1) Proving breach – lack of reasonable care by manufacturer
- Balancing risk and precautions
- Warnings could discharge the duty in some situations and may be relevant at the intermediate examination stage
2) Res ipsa loquitur doesn’t apply here
- An inference of breach does though – if C can show some facts to show something went wrong during the manufacturing stage (expert evidence), courts may infer a breach of the duty
- D could rebut this with their own evidence
Under negligence, what is needed to prove causation?
Same as negligence in other areas
- Factual causation + intervening acts + remoteness considered
Under negligence, what defences are relevant here?
Same as negligence
1) Consent – aware of defect and willing acceptance of risk
2) Exclusion clause – cannot exclude PI or death
- Can only exclude liability for other losses if the exclusion is deemed fair
3) Contributory negligence
Looking at the Consumer Protection Act 1987 (CPA), what are the required elements for a claimant to succeed in a product liability claim?
This is a statutory claim
- C must show they have suffered damage, caused by a defect in a product
Under the CPA, what is meant by damage?
Includes:
- Personal injury/death - includes mental condition
- Personal property exceeding £275
Does not include
- Claims for business property
- Claims for the product itself (pure economic loss)
An instrument damaged, that is used by a professional, would be business property
Under the CPA, what is looked at to assess if the damage is caused by a defect in the product?
1) Caused by – but for test applies, but remoteness rule isn’t the foreseeability test from negligence; it is a direct causation test (better test for C)
- Doesn’t have to show D’s breach of duty caused damage
- C only needs to show defect caused the damage
2) Defect goes to issue of safety – means the product is not as safe as persons are reasonably entitled to expect
3) Product includes packaging and instructions, same as negligence
4) Strict liability - if there is a defect in the product which causes damage, they don’t have to prove fault
Under the CPA, who may be a defendant?
Producers, own-branders, importers into the EU and suppliers who are unable to say who is higher up in the supply chain (forgetful suppliers)
- Independent contractor who causes a fault cannot be a defendant under the statutory scheme
Under the CPA, what are the various defences that can be raised?
1) Consent and contributory negligence apply
2) Cannot exclude or limit liability in any way
3) Defect attributable to compliance with legal requirements – complete defence
4) D did not supply product to another – complete defence
5) D supplied product outside course of business
6) Defect did not exist when D supplied the product
- Defect arose through wear and tear for example
7) Statutory defence – state of scientific knowledge defence
- If the risk of product causing harm to C was unforeseeable due to state of knowledge worldwide, then D can rely on this
- State of knowledge worldwide was not such as to allow the producer to discover the defect
- Rare and would only apply to new, cutting edge products
