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Flashcards in Product Liability Deck (22)
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1

When will a manufacturer of products owe a duty to the consumer to take reasonable care at COMMON LAW?

Donoghue v Stevenson -
1. He sells them in such a form as to show he intends them to reach the ultimate consumer in the form in which they left him with no possibility of intermediate examination
2. He knows that failure to take reasonable care in preparing or putting up the products will injure the consumer’s life or property

2

When will someone injured by a product have resort to common law?

• The loss takes the form of damage to property not intended for private use
• The limitation period under the Act has expired

3

Andrews v Hopkinson

A mere distributor or supplier may be liable if the product is dangerous and he ought to have known of the danger because he had a duty to make inquiries or carry out inspections (here of second-hand cars)

4

Fisher v Harrods

A supplier or distributor may be obliged to satisfy himself as to the reputation of his suppliers

5

How may C prove negligence on the manufacturer's part?

If he shows that the product is defective and on the BoP the defect arose in the course of manufacture by Ds

6

Grant v Australian Knitting Mills

o It is not sufficient for D to show that his quality control system complied with approved practice and was very effective (perhaps his servant has been careless, VL)
o The mere possibility of interference does not affect D’s liability.

7

Grant v Australian Knitting Mills (quote)

If excess sulphites were left in the garment, that could only be because someone was at fault. The plaintiff is not required to lay his finger on the exact person…who was responsible or specify what he did wrong.

8

Evans v Triplex Safety Glass Co

If the evidence shows that on the BoP the defect was caused after the article left the manufacturer’s hands D will not be liable

9

Kubach v Hollands

If the manufacturer sells the product to an intermediary and expressly warns him that it has to be tested before use, he will not be liable if C is injured because the intermediary failed to check it

10

Barcardi-Martini

A defect in packaging causing damage to its contents ought not to be regarded as “damage to other property” because the contents are merged with the packaging to form a new product and C is really claiming for damage to the product

11

When will damage caused by one component of a product to the rest of the product be recoverable?

Murphy v Brentwood suggests that if a defect in a fundamental component of a complex structure (e.g. car engine) causes damage to the rest of the structure this is not recoverable; but if the defective component is an accessory the damage to the rest of the structure might be recoverable (e.g. a heater).

12

Aswan v Lupdine

Lord Nicholls thought D is not liable if defects in the container he manufactures causes loss of or damage to other property but Lord Lloyd thought he was

13

Tesco Stores v Pollard

C was only entitled to expect that a child-resistant screw cap would be harder to open than a normal cap and NOT that D would comply with a voluntary standard to which D had made no reference in marketing and of which the public was not likely to know

14

What is a non-standard product?

Non-standard products are those which are only dangerous because they are not in the condition in which the manufacturer intended it to be distributed to the public.
The test is to compare the product with other products of the same type - if the respect in which it differs from the rest of these products includes the harmful characteristic, it is non-standard.

15

What does C need to show to recover damage by a non-standard product under the CPA? What is the focus of this test?

 The product was non-standard.
 Its non-standard nature made it dangerous.
 Its non-standard nature caused him damage.

The focus is on the individual item causing damage, so even if the public is generally aware of the risk of defective products, the individual user is entitled to expect that his product is defect-free and is not to be taken as participating in Russian roulette.

16

What are standard products? How does the court decide when to impose liability for damage caused by standard products?

Standard products are those in which an element of danger is inherent.
The court does so by performing cost-benefit analysis to avoid imposing liability for injuries caused by products rather than injuries caused by defective products.

17

What does Iman Abouzaid v Mothercare illustrate?

Liability under CPA is stricter than that at common law; C succeeded under statute where his common law claim failed because the risk was not one which at the time of distribution the manufacturer could reasonably have been expected to contemplate as a serious one.

18

When will the avoidability of the risk fall within S.3?

A v National Blood Authority - Never.

 “It is impossible to inject into the consumer’s legitimate expectation matters which would not by any stretch of the imagination be in his actual expectation.”
 “It is inappropriate to propose that the public should not expect the unattainable at least until the public is informed that the tests or precautions are unattainable.”

19

Bogle v McDonalds

Consumers of hot drinks “expect precautions to be taken against the risk of spillage but not to the point that they are denied the basic utility of being able to buy hot drinks and consumed them unlidded on the premises”

20

Worsley v Tambrands

If the manufacturer does enough to draw C’s attention to instructions or warnings attached to the product and the instructions or warnings are sufficiently detailed and accessible to enable C to use the product safely, D is not liable if C does not read the instructions or forgets their contents

21

When does the development risks defence apply?

The defence only applies if there is no knowledge of the existence of the risk in a generic sense; once knowledge of the risk is acquired D produces at his own risk even if the state of scientific and technical knowledge makes it impossible to identify the non-standard products in which the risk has manifested

22

How is the state of scientific and technical knowledge to be determined for the development risks defence?

It must be construed to as to include [the most advanced level of research] in the scientific community as a whole, bearing in mind on the basis of a reasonableness test the actual opportunities for the information to circulate.