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29 Cards in this Set

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CPA


Common Law negligence

Damage, Causation, Defect, Product, Who is liable, Defences




Manufacturer, Products, Ultimate Consumer, Intermediate Examination

What is product liability?

Liability for unsafe products

Who is liable under CPA?




cf Allen v Depuy International Ltd

liability is joint and sev. cannot be excluded : s7


s.2(1) damage wholly/partly caused by




s.2(2):automatically liable:




(a)the producer of the product; (s.1(2): manufacturer (of whole+component parts); of not manu he who won/abstracted; if neither, if essential chracteristics attributable to industrial/other process being carried out, he who carried it out (eg agri process)




b) own-brander




(c)first importer into EU, in course of business to supply to another




s.2(3): only liable if fail to state where bought it from:




'forgetful supplier'




“Fall-back” liability – supplier escapes liability by identifying such a person as is referred to in s. 2(3)




Any supply suffices; no need to supply items to C+ includes supplier of defective component prod to producer. Covers wholesalers and retailers but not those who supply other than in the course of business (see s. 4(1)(c))

Allen v Depuy International Ltd

(defective prosthetic hip manu in UK)




Consumer Protection Act 1987 did not extend to damage caused outside the United Kingdom or EEA.

Who can bring a claim?????

The act is silent on this. This leads us to believe that anyone whosuffers damage by the defective product may be able to bring an action, and this is implicitly supported by case-law (Abouzaid v Mothercare (2001) and the principled basis of the act as exemplified by Donoghue v Stevenson (1932).)

Product

s. 1(2) goods, electricity, product comprised in another product (component/raw material/otherwise)




s.45(1) substances, growing crops, things comprised in land by virtue of being attached to it, ship/aircraft/vehicle




includes biological products (A v Nat Blood)




Info is not covered by act


US case law: Winter v G Putnam’s SonsC ate mushroom relying on encyclopedia: publisher no duty to act as a guarantor for the contents of all books that it publishes ---- info not a good.+




Cardazo v True: (purchaser of cookbook suffered injuries due to poisonous ingreds in recipe) --- diff b/w tangible&content---info not a good, but books themselves are.




but!!! As to SOG act not CPA, St Albans City and District Council v International Computers Ltd (UK case): if instructions in manual wrong in imp respect, Anybody who follows them is likely to cause serious damage to product. instructions are an integral part of the manual. whether in a book or a video cassette, the manual would in my opinion be “goods”. + extends to software 'instructing' computer. ----

When is a “product” defective?




does not require that the producer be negligent. Liability if the product is defective and causes damage, whether or not the producer was at fault. ---- strict liab

3(1) defective if safety not such that generally entitles to expect. (“safety” includes safety with respect to products comprised in that product and safety in the context of risks of damage to property, death or personal injury.) --- 'unsafe' v/s just defective!!!




3(2) consumer expectations test--- all circumstances including:




s. 3(2):(a) manner+purposes for marketed, its get-up, the use of any mark in relation to the product and any instructions/warnings doing or refraining from doing anything with or in relation to the product;


(b)what might reasonably be expected to be done with or in relation to the product;


(c) the time when the product was supplied by its producer to another;no defect from the fact alone that safety of later product is greater.

Proof of defectiveness




Ide v ATB Sales Ltd [2008]

C fell off bike--broken handlebar. only needed to show defect caused damage not what caused defect

Non-standard products




A v National Blood Authority

declined different standards of liab! all cases = legitimate expectation (set by judges! so even if public's lower i.e. even if aware of untraced infections in blood --- entitled to expect safe transfusion.)




non standard (i.e not in condition manu intended they be distributed) = compare with all other products of nature and point to defect.




standard: inherent dangers in all products of type. compare with sim products of type/ other brands.




ALL CIRCUMSTANCES: also said 'avoidability' (here no way of tracing...) and utility not 'relevant circumstances' of 'all circumstances'




(non standrad quite easily determined defect but for standard) but under act remains legitimate expectation test but essentially involves cost benefit approach (what evid to decide public can expect more?).. DTI explanatory note of directive: more potent and life saving the drug = lower standard entitled. takes into account utility!!!! (counters A v????????) (How determine if entitled to expect if not question whether possible to avoid???? also 3.2(c??))




CRITICISM: Many commentators think goes too far.




Abouzaid (case) : while right that unavoidability doesn't completely negate, may be given less weight but still relev 'all circums' ---eg in Abouzaid: factor influencing could have done more........McDonald's: utility.




Richardson v London Rubber Co Ltd (2001)




cf Buckley v Henkel Ltd

husband's condom split leading to an unwanted pregnancy. The court held that (1) it was probs caused post manufacture and, (2) the fact that the condom had split did not prove, by itself, that it had been defective (cases where split spontaneously for no discernible reason). ///// alternate interpret: even if damaged there, users must expect risk

Pollard v Tesco Stores Ltd [2006]

Q could child resistant cap be defective as did not comply w/ British Design Satndard.



NO LIAB: generally entitled to expect that the bottle in the instant case would be more difficult to open than if it had an ordinary screwtop and judges by this standard not defective. Anything more specific, as a test of public expectation, ran into difficulties. (Laws: people would not be aware of the standard) (consumer responsibility (that parent would take effective steps also a factor in determining whether injury was foreseeable)

Abouzaid v Mothercare (UK) Ltd

whilst assembling a pram, an elastic strap snapped out of the claimant’s hand and he was struck in the eye by the buckle. contended no scientific knowledge in form of accident reports.




The Court of Appeal held that the injury was caused by a defect in the product because they could have done more to prevent such injuries. There was an identifiable risk. Whether or not M had been aware of the particular defect in the product was irrelevant as hinged on public expec.




accident reports were not "technical knowledge" for the purposes of s.4(1)(e). (when negligence being decided: accidents could be taken into account)

Bogle v McDonald’s Restaurants Ltd [2002]

court did not hold Mcdonalds coffee as being defective for being too hot: people who bought coffee were expected to know the inherent risks of spilling it on themselves.




also spoke of utility: expected precaustions but not to extent of denying them the basic utility of buying hot drinks




also obvs risk no need to warn (although here, effective warning)

Worsley v Tambrands Ltd [2000]

W, suffered toxic shock syndrome from use of a tampon said product was defective + T ought to have foreseen that (1) warning leaflets placed inside each box of tampons might not be read or retained.




Held, product was not defective (not know that tampon use even relates) and D had placed on the outside of the box a clearlylegible warning directing the user to the leaflet contained inside; leaflet waslegible (irrelev big/small?), literate, unambiguous and adequate.

Buckley v Henkel Ltd




relev guidance on when defective

(C purchased hair dye manufactured by the D. Instructions includedallergic reaction risk + patch test instructions. C did not react testbut suffered a severe reaction on using. )




inclusion of PTDdid not make the product defective. not entitled generally to expect thatcertain products will be completely safe, particularly where the risks are highlighted + has been in market. instructions made risks clear and provided several warnings and suggested precautions.




Further, PTD was andcontinued to be permitted under the relevant EU directives.




patch tests improved safety. would not conclude that a product was made defective because a procedure designedto improve its safety was not completely effective when it did not purport to be.

What types of damage are recoverable?

s5(1): loss/damage personal property (including land!)




s5(3):only for damaged property ordinarily intended + actually used for private use.




s5(4): claimant’s damage exceeds £275


Clerk and Lindsell (i.e. probs in UK): cumulatively


Art 9(b) of EC Directive: individually




personal injury and death s5(1):




Richardson v London Rubber Co Ltd (2001) : unwanted pregnancy was reasonable injury




cost of loss/damage to product itself/ anything supplied with it not recoverable s5(2)





Defences

SECTION 4(1)




a) defect attributable to compliance w/ legal requirements --- min standard.


b) did not supply goods to another (stolen??)


c)not supplied in course of business /// (Charity church but not say OXfam) .


but for s.2(2) not in supply for business and not with view to profit


d)did not exist in product at time supplied (wear and tear, misuse, 'best b4 dates')




e)development risks defence: state of scientific knowledge such that defect not expected to be discovered (compare w/ directive provision: not such as to enable to discover.....so if not possible, not liable) but in A still liable.






f) manu of component parts not liable if defect solely due to design of finshed product/ performed in compliance w/ design.




10 year limitation period from when circulated by D and must claim w/ 3 years of injury/damage: not for common law liab.



Miscellaneous issues

Causation: as usual




s. 6(4): The Law Reform (Contributory Negligence) Act 1945 applies




s. 7: Prevents exclusion of liability under CPA

Manu

Assemblers, Installers, Service engineers/repairers:Haseldine v Daw (lift engineers), retailers, suppliers: Andrews v Hopkinson (second hand car dealer failed to inspect steering wheel! duty to inspect depends on what is reasonable to expect in circums.)

Products

extends to packaging, labelling and safety instructions VACWELL ENGINEERING CO. LTD. v. B.D.H chemicals ltd.

Consumer

anyone who may be foreseeably affected (Stennett v Hancock and Peters) or anyone in physical proximity.

When will sue in negligence rather than CPA?

1) not be able to bring a claim in negligence:


product does not count as being defective


2) highly unlikely that C will succeed in negligence against the manufacturer: manufacturer can take advantage of a defence under CPA, harm suffered is damage to the product itself or another form of pure economic loss.


3) negligence claim may be available:


When C is a business, not normally intended for private domestic use; or property damage is minor (less than £275 worth)





Donoghue v Stevenson

narrow rule: a manu of products,sells in form as to show he intends them to reach ultimate consumer in that form w/o reasonable possibility of intermediate examination, and w/ knowledge that lack of reasonable care as to production/putting up may result in injury owes duty to take reasonable care.

Product??

Donoghue v Stevenson [1932] AC 532 and subsequent extension in terms of productsand who can be sued (cost/ benefit analysis?)




Products include anything that can cause damage including packaging, labelling and safety instrictiosn (Vacwell Engineering Co Ltd v BDH Chemicals Ltd)





Factors

Prove fault1) Damages2) Who can sue?3) causation, remoteness of damage and negligence claims.

Intermediate examination

if reasonable possibility of intermediate expansion that should have revealed defect---breaks chain in causation. but must be reasonably probable/ likely rather than just foreseeable.




if intermediate expansion discovered defect, not liable/ intermediary ignores clear warning






also if intermediary ignores clear warning. however, no liab if defect arose post manufacture.

Dfiference comapared to negligence + situations where can sue

Difference:


=>need for fault, 'fault based' rather than 'defect based' (foresight, precautions may be relevant, avoidability, ought reasonably to be aware of defect)




=>The manufacturer's duty of care did not cease when the goods were sold and if it realised that an omission to warn past customers about potential injury might result in injury to them it must take reasonable steps to warn them, however lacking in negligence it was at the time the goods were sold E Hobbs (Farms) Ltd v Baxenden (Chemical Co) Ltd




=>a failure to recall a product, if extremely dangerous>?? (+failure to take care during desogn phase, including research, perform tests, manufacture, warn)

Damges

Personal injury, Damage to property other than the defective product + NO CONSEQUENTIAL LOSS FOR EITHER!!!




Complex structure problem: The Rebecca Elaine: cannot sue for defective engine's problem to ship -- repair+ towing costs




A. Tettenborn (article) : integral v non integral objects. non intgeral have use of their own. no independent use? manu of bigger should sue that of smaller.






=>items not firmly attached and have indep use “the same property”.


=>so attached/ only use is in conjunction -- same property

Who can sue/ be sued?

anyone suffering injury, not just user -- donoghue




be sued?manu, assembler, installers, service engineers/ repairs (Haseldine v Daw and son) , retailers, suppliers, erectors (Brown v Cotterill -- tombstone fell on child)