Product Liability

Question 1

PRODUCT

Answer 1

s.1(2)c - manufactured/created in factory, or “won”/”abstracted” (e.g. crops/harvest)

Question 2

PRODUCER

Answer 2

s.1(2)a,b s.2(2)a,b - person who manufactured/won/abstracted it

• or person who trademarked it
• or first importer into the EU

Question 3

DEFECTIVE

Answer 3

s.3 - what a person is “generally entitled to expect” taking into consideration “all” circumstnaces

Question 4

s.3(2) - specific things to take into account for defectiveness

Answer 4

a) GET UP and marketing (packaging/instructions)
b) what might reasonably be done with/in relation to product (e.g. cotton buds)
c) time the product was supplied (no hindsight allowed)

Question 5

A v National Blood Authority

Answer 5

Burton J evaluated s.3
NON-standard = product does not mean manufacturers own specifications
- VERY hard to show it ISN’T defective in this case
- unless consumers are told and accepted the risk

STANDARD = met manufacturers own specifications

• harder to show defective
• entire product range needs to fail to offer level of safety people are entitled to expect
• objective test for what public are entitled to expect

Question 6

Abouzard v Mothercare

Answer 6

Consider gravity of harm (if severe injury - a warning should come with it)

Consider avoidability of danger (if producer did more like instructions, or different way of fastening it, then might not be defective)

Question 7

Bogle v McDonald’s Restaurants

Answer 7

Rejected argument that coffee was too hot

• purpose of product is destroyed if it is deemed defective
• lengths you would have to go to to stop product being defective would defeat purpose of product

Question 8

Pollard v Tesco Stores

Answer 8

people can’t expect a regulatory standard imposed by another body
- that radically rewrites s.3

Question 9

Richardson v LRC Products

Answer 9

If public knows and accepts risk then it isn’t defective (e.g. condoms)

Question 10

Whittaker says:

Answer 10

instructional books - be careful to call them defective (america does)

Question 11

DAMAGE

Answer 11

S.5

• death
• personal injury (might include psychiatric?)
• property damage
• NOT for PEL

Question 12

DAMAGE: COMPLICATIONS

Answer 12

S.5(2) - no liability for loss/damage to the whole or part of product that was supplied with the alleged product in question inside it
- e.g. defective tyre in new car? property damage to car irrecoverable? but if tyre came separate and added later, damage to car is recoverable?

Question 13

CAUSATION

Answer 13

BUT FOR - Mcglinchey v General Motors

Question 14

Ide v ATB

Answer 14

C only needs to prove defect caused damage, not what caused defect

Question 15

DEFENCES

Answer 15

S.4(1)
A) defect attributable to compliance with law
b) product stolen from producer w/o consent
c) supply to D was not in the course of business (not incl. medical service)
d) defect did not exist at time of D’s supply
e) technological knowledge at time was not such that producer of product could have been expected to discover the defect

Question 16

Piper v JRI Manufacturing

Answer 16

used s.4(1)d defence - defect did not exist at time of D’s supply

• evidence that specific product had no defect but that manufacturing system had no defect
• D suggested alternative

Question 17

Grant v Australian Knitting Mills

Answer 17

D didn’t suggest alternative so didn’t succeed in s.4(1)e defence
- even though manufacturing process produced proportionally fewer defects then Piper

Question 18

European Com v UK

Answer 18

Scientific/technical knowledge - most advanced not most general
accessibility - as long as knowledge is known in SOME way (AG said Manchurian exception but Burton in A said nah only if unpublished)

Question 19

contributory negligence

Answer 19

yes