PRODUCT LIABILITY
Defective products and standard of liability – common law + CPA 1987
Donoghue v Stevenson: consumed bottle of ginger beer, decaying snail floated out, suffered
personal injury (gastroenteritis) + shock claimed snail due to negligence of manufacturerheld
need proximity (neighbour test) between D (created risk) and plaintiff (ultimate consumer) gives
rise to duty to take care take reasonable steps protect consumer from harm
Consumer Protection 1987: additional liability, damage caused by defect in product by
consequential damage, like negligence (in form of property damage or personal injury)
oNo damages for purchase price or value, nor damage done to product itself
oDoes not cover commercial property (unlike negligence) but covers all personal injury
oGives effect to Directive 85/374 liability ‘without fault’ not need show lack of care
oDoes not cover all injuries caused by products needs injury caused by defect in product
os.3(1) CPA 1987 defines ‘defect’ by legitimate expectation by ‘persons in general’
oCPA 1987= show defectiveness in product, common law show negligence in e.g. design
oDirective + CPA 1987 include development risks defence= consumer takes risks of defects which
could not have been discovered at time of manufacture , scientific knowledge not permit know
Negligence to defectiveness: Allocation of risks
Directive of Product Liability considered with apportionment of risks associated with products
Producer takes risk of defectiveness, whether produced by lack of care or not –consumer takes
risks associated with non-defective product development risks defence gives new criteria to
apportionment where defect not discovered by manufacturer, risk not lie with manufacturer
European Communities Commission justifies defence to protect desirable innovation which for
strict product liability, high-tech/high risk sectors will find it hard to get insurance to cover risks
Broader context: limited impact of CPA 1987
Closeness to negligence: few product liability claims under Act not also succeed at common law due
to definition of ‘defect’ + defences like development risks defence
Causation: show injury suffered by defect (statute) or negligence (common law) causation more
difficult show product causing harm manufactured by D, not some other manufacturer
o XYZ v Schering [2002]: number of women actions against manufacturers of ‘third generation’ oral
contraceptives, claimants argued were defective under CPA 1987 and caused to suffer cardio-
vascular injured failed, as not show on balance of probability contraceptives increased risk of
sustaining injuries when compared to risks with previous generation ones excess risk would not
be known to women by the new product thus not ‘defective’
o Ide v ATB [2008]: injured riding bike offroad, handlebar snapped, D argued claimant’s actions
caused handlebars break held defect caused crash, as liability under CPA 1987 established, no
need show what defect caused handlebar to snap – only serious explanation could be discounted
o McGlinchey v General Motors [2012]: car rolled down hill, injured owner, 2 causes: defect on
hand break or failure engage hand break found if failure to engage it, would roll down hill
sooner, other possibilities e.g. wear + tear see if cause probable on balance of probabilities
o Hufford v Samsung [2014]: burden to prove defect was on claimant, even if defect does not need
to identified specifically, defect in fridge led to fire in pile of combustible material
Funding and Access to Justice
Liability rules only affect if claimant has access to justice – importance shown by Paul Sayers
Paul Sayers v SmithKline [2004]: claimants suffered autism + whose families blamed condition on
vaccines manufactured by Ds, major hard to prove causation, Legal Services withdrew funding
claimants then exposed to order of costs against them + actions discontinued
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,Regulation of product safety
General Product Regulation 2005 gives new powers of recall on part of regulators + duties of
notification on part of producers to achieve deterrence
Liability under CPA 1987
CPA 1987 is to give effect to Product Liability Directive
Abouzaid v Mothercare: strap of ‘cosytoes’ hitting child eye= defective
Richardson v LRC: failed condom= not defective
A v National Blood Authority: blood products infected with hepatitis= defective
CPA 1987, s.2 – parties who will be liable
s.2: Liability for defective products
Where damage is caused wholly or partly by a defect in a product, producer, any person putting
their name on product or using a trademark or other mark is a producer, any person who has
imported product into a member state from a place outside member state for business or supply
Any person who supplied the product, whether to the person who suffered damage, or to
producer or to any person is liable for damages if – the person who suffered damage requests
supplier to identify one or more of persons, request made within reasonable period after
damage, or supplier fails within reasonable period after receiving request to comply
Where 2 or more persons liable for same damage, liability is join and several
Liability mainly on producers, but other parties can be under circumstances, like ‘own-branders’
(hold themselves out as producers) + parties who import products outside their member state, if not
claim can be made against supplier who does not identify who producer is
What is a product? s.1(2)(c)
Product= any goods or electricity, and any product comprised in another product by virtue of
being a component or raw material
Faulty component parts treated as separate products producer or importer of this is liable
Manufacturer of component part not liable for damage done to larger product it is incorporated
Damage (s.5)
Damage= death or personal injury, or any loss or damages to any property (including land)
Not liable under s.2 for any loss/damage to any property, is not of description of property
intended for private use, occupation or consumption
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Loss or damage will be regarded as occurred at earliest time person with an interest in property
had knowledge of material facts about loss or damage (defines date of damage for purposes of
determining limitation period)
Loss or damage sufficiently serious to reasonable person of facts observable or ascertainable
Must be damage either to person or property other than the product itself
Component part not treated as having caused the damage if it merely damages product into which
it is incorporated + only consumer property is protected (s.5(3)), not commercial
Defectiveness
Defect= safety not generally entitled to expect, and includes products comprised in that product
and safety in terms of risks of damage to property, death or personal injury
To see what persons generally are entitled to expect – manner product has been marketed, use
of any mark, any instructions, or warning to refrain from doing anything + time product supplied
Safety of product is not such as persons generally are entitled to expect
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, Directive on Product Liability
Art.6: defective when it does not provide safety a person is entitled to expect, in all circumstances
Defectiveness v negligence
Christopher Newdick argued ‘defect’ would be easier to establish than negligence
Jane Stapleton: argued ‘defectiveness’ itself not operate too differently from negligence
Case law shows more scope to succeed under defectiveness easier to prove
Imran Abouzaid v Mothercare [2000]:claimant attaching ‘cosytoes’ made by D, to younger brother’s
pram, elastic strap snapped and metal buckle hit eye, vision substantially impaired held injury
caused by defect, no development defence as could show risk existed at time goods manufactured +
common law negligence fail as risk too small + reasonable manufacturer may fail recognise
Tesco v Conner Frederick [2006]: claimant aged 13months, swallowed dishwasher powder from
Tesco bottle (first D), became ill, powder was Tesco’s own brand but bottle manufactured by second
D, claimed bottle was too easily opened, evidence showed ‘squeeze and turn’ cap had considerable
less resistance to open then required, no legal requirement dishwasher powder sold in containers
with caps held provided level of safety entitled to expect not defective
Earlier case shows consumer responsibility for fair apportionment of risk
Sam Bogle v McDonalds [2002]: injured spillage hot tea not liable negligence nor CPA 1987
A v National Blood Authority [2001]: claimants all contracted Hepatitis from blood transfusions,
actions against D suppliers of the blood products, D and the medical profession knew of risk of
infection, knowledge not shared with public, there was an expectation of ‘clean blood’ which was
not sufficient to level of safety entitled to expect + no test to check blood for virus risk of infection
unavoidable claim only under CPA 1987 not common law held was defective
Art.6 (like s.3) refers to what people are entitled to expect, expecting ‘clean blood’ unreasonable
even though medical profession knew it was unattainable defective
Avoidability of risk is not relevant for test of ‘defectiveness’
infected bags stated as non-standard productsbut infected bags not the same as other bags
some infected (non-standard) and others were not
For standard products, side-effects only acceptable if are made known
Defences
Product not defective (s.3)
Development risks defence (s.4)
s.4
Defect is attributable to compliance of any enactment or with any Community obligation
Person proceeded against did not at the time supply product to another
Supply was not in course of business and done without view of profit
Defect did not exist in product at the relevant time
State of scientific knowledge at time not such producer be expected to discover defect (
Defect was in a product (the subsequent product) which the product comprised in, was wholly
attributable to design of subsequent product or in compliance of producer of subsequent product
Relevant time means time generated before transmitted or distributed, supplied to another
Producer not liable if can establish defect not present at relevant time (time of first supply)
Undue fragility may amount to a ‘defect’
Partial defence of contributory negligence (Law Reform (Contributory Negligence)) is applicable
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