Product Liability - Summary Tort Law PDF

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This is condensed notes concerning product liability in Tort law. Cases and textbook summary included. ...

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Tort - Product Liability

Walid Wahab

PRODUCT LIABILITY · · · · · ·

Different actions available to victims of unsafe products Background to current law Requirements to establish product liability claim in negligence Requirements to establish claim under Consumer Protection Act 1987 (Part I)

PURE ECONOMIC LOSS: Defect: where an item is defective it is pure economic loss. The normal remedy is in contract law but in tort law. As per Murphy v Brentwood District Council (1990) Where there is a defect in property which causes damage to another person of property then tort law can be used by the person who suffers damage. e.g. if your vacuum cleaner explodes and you suffer personal injury and maybe your curtains are burn in your house then you may have a remedy in tort as well as contract. If there is an item that is purely defective then the remedy would be in contract. Damage: where there is damage which is caused by defective products then you do have a remedy in tort law.

Options that are available to a person who suffers damage due to a defective product: A Claimant who has suffered damage from a dangerous product may have claims: 1. In Contract law- provided the claimant has a contract. UCTA 1977– defective products. 2. In the Tort of Negligence 3. Under Consumer Protection Act 1987

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Tort - Product Liability

Walid Wahab

Tort of Negligence Duty of Care a duty of care is owed by the manufacturer of a product to their consumer as per: · Donoghue v Stevenson (1932) - Wide ratio as neighbour principle - Narrow was Manufacturers owe DoC to a consumer. A consumer is anyone who the manufacturer should foresee as being affected is a consumer. Owed to? · Stennett & Peters v Hancock (1939): C was pedestrian who was injured by the wheel which came off a lorry. - D had repaired the wheel a few moments before by manufacturers. - They were in breach of duty.

Who is a duty owed by in negligence? · · ·

Repairers Haseldine v Daw (1941) Stennett

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Supplier/assembler Howard v Furness, Houlder Ltd (1936): D was held liable when C was injured by steam which escaped from the boiler. D has to assemble the boiler after it had been fixed.

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Secondhand dealers Andrews v Hopkinson (1957): This was a case about a second hand mini bus. D was a second hand car seller when selling the car to C he said “it’s a good little bus I would stake my life on it you will have no trouble with it”. There was an accident because the bus had a faulty steering. D was held liable because he could have inspected it.

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Tort - Product Liability

Walid Wahab

Breach of duty The standard is the reasonable manufacturer or supplier. The breach would be a matter of facts. Established in: · Carroll v Fearon (1998): - This was a case about a faulty tyre that caused an accident. - C had to prove that the accident was caused by a defect in the manufacturing of the tyre. - C proved that on a balance of probability the defect of the tyre caused the accident. · Wright v Dunlop Rubber Co (1972): - This was another tyre case. - D had put up notice about a defect in the tyre and they carried on supplying the tyre even though they had been notified that there was a defect. - The breach was the continued supply of the tyre where there was a notice given. Not established in: · Roe v Ministry of Health (1954): - Case about medical negligent. - There was a contaminated anaesthetic which caused damage to the patient. - There was the breach of the manufacturers for not knowing the defect could occur. - They used the state of the art defence · Evans v Triplex Safety Glass Co Ltd (1936): - Case about a wind screen of C cracked injuring the C. - Sued the manufacturer of the windscreen. - There were many reasons why the windscreen could have shattered. - It could have been a defect in the manufacturing process or the way it was fitted or some other factor. - C could not prove on the balance of probabilities what had caused the windscreen to shatter.

What is a product? Product is defined widely and would include the way a product is packaged labelled etc. · Kubach v Hollands (1937): - A manufacturer sold chemicals to C without warning them about the explosive nature of the chemicals. - C sold the chemicals to a school without warning them about the explosive nature of the chemicals. - A child was injured and the child sued. - The school was no liable as they were not work about the warning by the second D. - D2 was liable as they should have passed on the warning. · -

Watson v Buckley, Osborne, Garrett & Co (1940): This was a case about hair dye.

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Haseldine- product is widely defined. Andrews

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Tort - Product Liability

Walid Wahab

Causation Normal principles of the test of causation apply. “But for …” test – as usual Consideration of possible NAIs too. · Grant v Australian Knitting Mills Ltd (1936): - This was a case about under pants. - C had bought the under parts. - Due to a manufacturing defect the under pants give C a skin rash. - D tried to argue that C should have shed the under pants before wearing them. And if you did you wouldn’t have caught the disease. - Held: it’s not unreasonable for a consumer not to wash their underpants before they wore them. Therefore there was no intervening act. CONTRAST · Farr v Butters Bros (1932): - This was a case about a crane was supplied and had to be assembled on site. - C had noticed the crane was defective but still assembled it and was then injured. - Held: manufacture was not liable because C did have an opportunity to inspect the defects. But he noticed the defects and carried on to use it. This was an intervening act.

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Tort - Product Liability

Walid Wahab

CPA 1987 (Part I) (This is a structure for answering a question on consumer protection act) · EC Directive 85/374 · Who is Claimant? · Who is Defendant? · Definition of product · Definition of defective · Definition of damage · Defences Product Liability Directive “…liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production.” Who can sue? · · ·

Anyone who suffers damage as a result of defect in product. Not necessarily buyer or consumer. s2(1) and s 5(1)- defines damage.

Who can be sued? s 2(2) · Producer of a product is the one who is sued. Who is a procucer is defied under s1 (2): - Manufacturer - s1(2)(a) - Anyone who has “won or abstracted” - s1(2)(b)- mining natural. - Processor – s1(2)(c) · · ·

Own branders Importers into EU- the first person who imported the product into the EU. Supplier – if they fail to identify the producer – s 2(3)(a)-(c)- if a supplier fails to identified he reasonable producer then the supplier becomes liable.

“Product” “any goods or electricity and…includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise.” s 1(2) Wide definition “Goods” · Definition from s45 – substances, corns things that comprises from the land, ships etc. · Buildings exempt, but not component parts – s 46(3) Widely defined.

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Tort - Product Liability

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“Defective” ·

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A product is defective when it does not provide the safety which persons generally are entitled to expect – s3(1) Richardson v LRC Products (2000) Case about a defective condom. C was a lady who was using a condom which burst and split. C argued that the condom was defective. Held: it was not defective as people generally don’t expect them to be a 100% safe they carry a risk of failure. It’s a known risk.

Factors in deciding are set out in – s 3(2) In deciding whether a product is defective the statute sets out factors that the court has to take into account when deciding whether something provides the safety which people are generally entitled to expect. 1. Presentation/marketing- needs to contains warnings/instructions/ right packaging etc. 2. Reasonable use of product- if the damage is being suffered because the product is being used in unreasonable way than the manufacturer is not going to be liable. 3. Time product was put in circulation- safety is judges at the time the product was put into circulation. Causation 1. · -

C must show their damage was caused wholly or partly by the defect – s 2(1) A&Others v National Blood Authority & Anor. (2001) This was a case about a defective blood. A number of hepatitis patience where given contaminated blood which had hepatitis C. C’s became ill. At the time the blood was supplied it was known that the blood maybe contaminated but there was no way of screening the blood or check. - However it’s held: that the product did not possess the safety that people were generally entitled to expect. · Abouzaid v Mothercare (UK) Ltd (2001): - A child was injured by a spring on a pushing chair. - Manufacturer was liable was they didn’t appreciate this happening. CONTRAST · Sam Bogle & Ors v McDonalds Ltd (2002): - Hot coffee from McDonald’s - Held: no breach the product was not defective.

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Tort - Product Liability

Walid Wahab

“Damage” · · · · · · ·

Death- covered Personal injury- covered Loss or damage to property s 5(1)- covered NOT the defective product itself – s 5(2)- not covered NOT property which is not “ordinarily intended for private use” and not so intended by the claimant – s5(3)- not covered Property claims £275 and under excluded – s5(4)No exclusion clauses – s 7- can't use liability

Defences Defences – s4(1): a) b) c) d) e)

Compliance with statutory provision Producer did not supply product Supply otherwise than in course of business Defect did not exist at time of supply Development risk defence – European Commission v UK (1997)

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s4(1)(f) Defect in subsequent product in which D provided a component part, and defect was wholly attributable to design of subsequent product or compliance to producer’s instructions. s6(4) contributory negligence Limitation 3 years /long stop 10 years – s11A(3) & (4) Limitation Act 1980

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