What is product liability?
What two claims can be made at the same time?
Statutory basis for claiming for damage caused by defective products
Negligent and breach of contract claims can be made at same time
Is product liability a strict liability regime?
Yes - parties can be found liable without it being necessary to show fault on their part
What is the basis for a claim under the Consumer Protection Act 1987 (CPA) for product liability?
Wholly or partly
Where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for damage
What is a ‘product’?
Any goods or electricity - includes product which is comprised in another product (e.g. component part of raw material e.g. computer chip)
Basically any goods or something it contains
When will the safety of the product mean there is a ‘defect’?
If the safety of the product is not such as persons generally are entitled to expect
Children’s toys are more safe than power drills
How is ‘entitled to expect’ decided?
- Manner/purposes for which it has been marketed/packaged (cutlery for younger children safer than cutlery for adults)
- What is reasonably expected to be done with/in relation to product (e.g. should not microwave wet towel)
- Time when product was supplied by producer to another (e.g. some products safe when put into circulation but deteriorate to become less safe)
A warning might also be expected to be given for hazards re the product
Richardson - court rejected C’s action for ‘defective condom’ that led to pregnancy on basis that D did not claim product to be 100% effective
No warning in Abouzaid - C injured when attaching sleeping bag to pushchair and elastic strap sprung into eye causing partial loss of vision - product defective because it was supplied with a design permitting risk to arise without giving a warning
What is the difference between the CPA (product liability law) and standard rules of negligence?
CPA demands considerably more from manufacturers than traditional negligence (through strict liability)
A - Cs sued National Blood Authority under CPA as a result of personal injuries arising from being transfused with blood infected by hepatitis - D argued public was only entitled to expect it had taken reasonable care that blood was safe which it had done - court disagreed and set standard higher; patient undergoing transfusion is legitimately entitled to exepct they will not be given infected blood (to hold otherwise would be to take strict liability out of strict liability regime)
What is ‘damage’? What does it not include?
As in damage caused by the product
- Damage = Death, personal injury or any loss or damages to any property
- Does not include pure economic loss, product itself, or damage to property which is not meant to be privately used/consumed
What is the limit on damage to property by a defective product? What must property be ordinarily intended for for a claim to be brought?
I.e.2 instances where no claim allowed
- No claim re damage to property unless sum exceeds £275 excluding interest
- No claim unless property is ordinarily intended for private use/occupation/consumption
Second limit = losses suffered by business not recoverable
What 3 parties are liable for product liability damage? Can only one of them be liable?
- Producer
- Anyone holding themselves out to producer
- Any person who has imported the product to UK from a place outside the UK in course of business/to supply it to another
I.e. all 3 parties can be liable (inc company outside UK)
Third point ensures there will always be someone in UK who can be a producer (importer)
Who is a ‘producer’?
3 types
- Manufacturer (where goods made)
- Person who won/abstracted it (things extracted from ground)
- Person who carried out the process (things that are the result of a process e.g. agriculture)
When can a supplier be held liable for product liability damage?
If person suffering damage asks for details of producer/importer within a reasonable time and when they cannot identify the producer/importer themselves
Supplier example: retailer selling products they did not produce
If a supplier (e.g. retailer) wants to avoid being liable for defects for products which it sells what does it need to be able to do?
Tell someone suffering damage who produced/imported goods so person suffering damage can pursue them instead
Person may still have contractual claim against retailer
Can more than one person be liable for the same claim for damage under the CPA?
Yes - they will be jointly and severally liable
Who can bring a claim under the CPA? Who cannot?
Consumer - not businesses
Must a C have used/purchased the product? What if the product was bought by a business (who cannot sue) and the damage spills on to property of consumer?
No! Anyone suffering damages as a result can sue (even if product was bought by a business who cannot sue and the damage spills on to property of consumer)
What are the 2 defences available for product liability?
- The defect did not exist in the product at the relevant time
- The state of scientific/technological knowledge at relevant time was not such that a producer (of products of same description as product in question) might be expected to have discovered the defect if existed when under his control
Re 2 - not a defence if aware of defect but knowledge is such that defect cannot be fixed
What if the producer is aware of the defect but scientific/technical knowledge means defect cannot be fixed?
This is not a defence
Can exemption clauses be used for product liability?
No
Remember they also cannot be used for implied terms under CRA - so consistency here (cf SoGA where they can be subject to reasonableness)
What is the limitation period for bringing a claim?
3 years from the later of…
- The date the injury and/or damage occurred
- When the C became aware or should reasonably have become aware of the damage
What is the long stop period?
Absolute defence for D if claim brought after 10 years since product put into circulation
But can still claim in negligence
What is the difference between CPA product liability claim and contract or negligence claim?
- Protection not limited to those in the contract (don’t have to have purchased product)
- Foreseeability of harm not needed like in a negligence claim
- Causation of ‘wholly or partially’ by defect is simpler than negligence causation
Now looking at claiming negligence at common law (not CPA)
To whom does a manufacturer owe a DOC for a negligence claim? What can ‘manufacturer’ extend to and when?
- Duty to all users of product, not just final purchaser (do not have to have purchased the product)
- ‘Manufacturer’ can include repairers, suppliers and distributors where it was reasonable in circumstances to inspect product
What is needed to establish breach of the manufacturer’s duty of care?
Presence of defect (proved by C) in product will usually be sufficient evidence
But does not always show they fell below standard of care
