Tort Law - Product Liability Flashcards Preview

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Flashcards in Tort Law - Product Liability Deck (118):
1

Leading case on PL at CL

Donoghue v Stevenson

2

Leading statute on PL

Consumer Protection Act 1987

3

What did the CPA1987 implement?

EU Council Directive 85/374

4

EU Council Directive 85/374

Harmonisation of product liability

5

Where is the enterprise basis for PL reform relevant?

California

6

What is the enterprise basis for PL reform?

Idea of loss distribution/spreading

7

Escola v Coca Cola general

Bottle exploded

8

Escola v Coca Cola on enterprise basis

Law should be influenced by consequences of defectiveness - if C can't satisfy burden, bear cost himself, but if D liable, insurance

9

What case suggested law be influenced by consequences of defectiveness?

Escola v Coca Cola

10

Case on deterrence basis of reform of PL

Escola v Coca Cola

11

Escola v Coca Cola on deterrence basis

SL reduces flow of defective products, increasing economic efficiency

12

Who gives the moral enterprise theory?

Stapleton

13

Moral enterprise theory

As a matter of morality, profit from defective products SHOULD = duty to compensate for related losses, regardless of reasonable care

14

What was the main argument influencing Directive 85/374?

Market distortion theory

15

Commission v France

No more stringent measures under Directive 85/374

16

What shows Directive 85/374 is only partial harmonisation?

Certain derogations are allowed

17

Sanchez v Medicine Asturiana

No maintenance of stricter prior laws to Directive

18

No maintenance of stricter prior laws to Directive

Sanchez v Medicine Asturiana

19

No more stringent measures under Directive 85/374

Commission v France

20

Two potential ways different PL schemes could interfere with FM

Deter consumers over uncertainty of legal rights and financial disadvantages

21

Why can it be doubted consumers are deterred by different PL regimes?

No empirical evidence

22

Why can it be doubted financial disadvantage from different PL regimes

Insurance unlikely to be as significant as tax and labour costs

23

Who gives three problems with new product liability regime?

Stapleton

24

Section 1(1) CPA 1987

Interpretation through Directive if uncertain

25

A v NBA on s.1(1)

Burton J - go straight to Directive for interpretation

26

Arnull on s.1(1) CPA

Only look to Directive if ambiguity

27

Whittaker on s.1(1) CPA

Directive suggests interpretation remains with Member

28

what two academics disagree with Burton J in A v NBA on s.1(1)

Arnull and Whittaker

29

What is not defined in CPA

Causation

30

Three elements to CPA claim

Producer, product and defectiveness

31

S.1(2)(c) CPA

Product definition

32

Product definition section of statute

S.1(2)(c) CPA

33

Product definition in S.1(2)(c) CPA

Goods/electricity/product within another that is 'manufactured, won or abstracted'

34

Who argued s.1(2)(c) probably doesn't include a building?

Winfield and Jolowicz

35

Who thought s.1(2)(c) is unlikely to include incorporeals?

Whittaker

36

Producer

S.1(2) CPA

37

S.1(2) CPA

Producer

38

Definition of producer in S.1(2) CPA

Person who manufactured/won or abstracted/branded/imported/supplier the product

39

S.2(2)(b) CPA

Brander can be producer

40

S.2(3) CPA

Supplier can be producer if no identification of producer/brander/importer

41

Brander can be producer

S.2(2)(b) CPA

42

Supplier can be producer if no identification of producer/brander/importer

S.2(3) CPA

43

What case shows producer in CPA is not limited to purely commercial producers?

A v NBA

44

Defective section of statute

Section 3 CPA

45

Section 3 CPA

Defective

46

Defective definition in CPA

'Not such as persons generally are entitled to expect' considering all circumstances

47

What are the three circumstances noted in Section 3 CPA?

Marketing, timing and use

48

A v NBA general

Hepatitis C

49

Hepatitis C

A v NBA

50

What did LJ Burton divide between in A v NBA when considering defectiveness?

Standard and non-standard

51

Standard product

Meets manufacturer's specs

52

Non-standard product

Does not meet manufacture's specs

53

How to work out non-standard product is defective

Compare with other products and info to consumers to work out expected safety level

54

How to work out standard product defective

Compare with other manufacturers to show ENTIRE product range failed to meet expectations

55

Why did Burton J refuse to consider unavoidability of risk?

Too close to negligence

56

What did Burton J in A v NBA refuse to consider?

Unavoidability of risk

57

Goldberg on A v NBA

Too far in ruling out certain factors

58

What case, in contrast to A v NBA, seems to show consideration of avoidability?

Abouzaid v Mothercare

59

Bogle v McDonalds general

Coffee lid

60

Bogle v McDonalds judgment

No denial of basic utility under CPA

61

Two cases which seem to show negligence-type factors being considered by courts

Bogle; Abouzaid

62

What was considered in Abouzaid v Mothercare, in line with negligence?

Gravity of harm (Paris v Stepney BC) and avoidability

63

Why is it possible reference to availability in Abouzaid not a conflict with A v NBA?

Adds to public expectation of info

64

Richardson v LRC products general

Condom

65

Richardson v LRC products judgment

Reasoning unclear but maybe no liability because public aware not 100% effective

66

Worsley v Tambrands general

TSS warnings

67

What two cases show warnings may negate defectiveness as not public expectation?

Richardson v LRC Products; Worsley v Tambrands

68

TSS warnings

Worsley v Tambrands

69

Condoms

Richardson v LRC products

70

Two sources on whether or not particular industry standard influences s.3 CPA

Pollard v Tesco Stores; EU Directive 2009/48/EC

71

Pollard v Tesco Stores general

Safety cap

72

Safety cap

Pollard v Tesco

73

Pollard v Tesco judgment

Expectation not to standard of British Standards, just harder than regular cap

74

EU Directive 2009/48/EC

Toy safety directive

75

What suggests particular industry standard may be relevant for public expectation in Toy Safety Directive?

SL if toy does not comply - consumer expect safety to include Directive compliance

76

Why is Whittaker reluctant for intellectual property = defective?

Strays into freedom of expression

77

Who finds defectiveness to derogate from principles of PL reform?

Stapleton

78

Why does Stapleton find defectiveness to derogate from bases of PL reform?

Ironically forces adoption of negligence-derived criteria

79

What kind of damage is not covered under CPA

Pure economic loss

80

What kind of damage IS covered under CPA

Death/personal injury/loss of or damage to proeprty

81

What does property need to be to be damage under CPA?

INTENDED for V's private use, occupation and consumptions

82

Section 45 CPA

Personal injury = disease or any other impairment of physical/mental condition

83

What section of CPA gives definition of personal injury

45

84

Minimum threshold for damage claim under CPA

£275

85

Ide v ATB Sales

Normal causation rules under CPA - prove defect caused damage, not what caused defect

86

Normal causation rules under CPA - prove defect caused damage, not what caused defect

Ide v ATB Sales

87

Section of CPA on defences

4

88

How many defences are there in CPA

5

89

Section 4(a) cpa

Attributable to enactment requirement/community obligation

90

Section 4(b) CPA

No supply

91

Section 4(c) CPA

Supply not in course of business

92

Section 4(d) CPA

Defective did not exist at the time

93

Section 4(e) CPA

Development risks defence

94

What is the development risks defence

State of scientific/technical knowledge meant producer unable to discover defect

95

EC v UK on section 4(e) CPA

Objective assessment of state of knowledge

96

A v NBA on s.4(c)

'Business' includes service financed entirely from public funds

97

Piper v JRI general

Infallible system

98

Piper v JRI judgment

For section 4(d) CPA, prove infallible system AND give other explanation

99

Pearson Commission on s.4(e)

Rejected development risks defence due to policy base of reform

100

What Commission rejected development risks defence

Pearson

101

A v NBA on s.4(e)

No defence if know risk, but can't remove it

102

Roe v Minister of Health general

Vials

103

Roe v Minister of Health judgment

No benefit of hindsight for s.4(e)

104

Three questions raised over s.4(e) defence

Accessibility of knowledge, what is the relevant knowledge and personal burden on producer

105

EC v UK on accessibility of knowledge for s.4(e)

Needs to be published

106

AG opinion in EC v UK

Be in 'information circuit of the scientific community' with Manchurian exeption

107

What case qualified Manchurian exception to only if not published?

A v NBA

108

EC v UK on scientifical/technical knowledge required

Most advanced state of knowledge

109

Abouzaid v Mothercare on scientifical/technical knowledge required

Analysis of material under stress, not just accident statistics

110

What case said accident statistics insufficient for scientific/technical knowledge under s.4(e) CPA?

Abouzaid v Mothercare

111

What defence does section 3 suggest the inclusion of?

Volenti - take into account info provided

112

What defence does section 4(1)(b) suggest the inclusion of?

Illegality - possibility it was stolen

113

What two defences are specifically included in CPA under section 6?

Contributory negligence and Fatal Accidents Act 1976

114

what happens if C claims under FAA and D liable under section 2?

Damage deemed to have been caused by D's wrongful act/neglect/default

115

What are the limitations on CPA?

Claim 3 years from date on which action accrued OR date of knowledge of facts giving rise to action if later

116

Why are there argued to be so few cases on CPA?

Cost of UK litigation

117

Who finds sufficient differences to distinguish CPA from negligence and ensure it isn't the statutory equivalent of Rylands?

Whittaker

118

Who argues medical causation is still a threshold problem to CPA (As in negligence)?

Stapleton

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