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Product Liability Notes

GDL Law Notes > GDL Tort Law Notes

Updates Available  

A more recent version of these Product Liability notes – written by Cambridge/Bpp/College Of Law students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Revison: Tort

[PRODUCT LIABILITY]

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Both contract and tort are relevant when considering product liability - also covered by stature o

If suing in contract law - only the purchaser may sue due to the need for privity of contract

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Mainly statute i.e. Sales of Goods Act 1979 etc.

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Although - Contract (Rights of Third Parties) Act 1999 may also be helpful

In tort: there is both a common law action (fault liability), and claims available under the Consumer Protection Act 1987 (strict liability so easier)

Common Law

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The manufacturer owes a duty of care to a customer (Donoghue v Stevenson) - no need for privity, so doesn't matter if the consumer entered into a contract

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"Consumer": o

Definition is very wide

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Even a retailer can be a consumer - Barnett v H& J Packer

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Not limited strictly to the user - anyone within the foreseeable area of risk may sue, regardless of whether or not they have paid - Brown v Cotterill; Stennett v Hancock

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"Manufactuter" o

Wide definition - all those who were involved with the offending productRepairers - Stennett v HancockLift engineers - Haseldine v DawSuppliers - Watson v BuckleyDistributors - e.g. fitter in Malfroot v Noxal LtdAssemblers - Howard v FurnessSecond hand dealers - Andrews v Hopkinson: second-hand car dealer was liable where he sold a car without checking its steering. No absolute duty to inspect and test every product - will depend on what is reasonable in the circumstances

Establishing liability

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Breach: normal principles of negligence apply o

Standard: reasonably competent manufacturer (question of law)

1 Revison: Tort

[PRODUCT LIABILITY]
o

Consider how dangerous the product is: Abouzaid v Mothercare - manufacturer of Cosytoes was not liable as the risk of injury was small and did not warrant additional steps by the manufacturer

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What sort of knowledge should the manufacturer have?State of the Art principle: Defendant (D) judged with regard to the knowledge available at the time of manufacture (Roe v Ministry of Health - where no one knew about the contamination of anaesthetic)

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Onus on the C to prove breach - this may be difficult as they will have poor knowledge of the scientific methodology of the manufacturing processEvans v Triplex Safety Glass: shows difficulty of ensuring a claim is brought against the correct party - here when the C's windscreen shattered they sued the wrong person - the glass itself was fine, but had been assembled negligently

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Causation o

Must establish nexus between the defective product - both factual and legal causation

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Reasonable possibility of intermediate inspection: Grant v Australian Knitting Mills: manufacturer tried to argue that as the product was not sold in a sealed package - there was opportunity for inspection but this was held to irrelevant if the product reached the consumer subject to the same defect as when it left the manufacturer (latent defect)Haseldine v Daw: courts now refer to 'reasonable probability' as opposed to reasonable possibility - manufacturer will be liable if he has no reason to believe that an immediate inspection will occurBut: if there is a warning to check the product which the consumer ignores - then this will constitute an intervening event and will break the chain of causation (Holmes v Ashford)

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C's full appreciation of the danger may break the chain (Farr v Butter Bros - C realised there were parts of a crane missing and continued to build it anyway - he knew the product was unsafe)

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Reasonable foreseeability: (c.f. law on remoteness) o

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Damage must be reasonably foreseeable - (Wagon Mound (No 1))

Damage: must prove damage has occurred o

Damage must be caused to the C or his property - damage to the defective product itself is pure economic loss (this is irrecoverable - Murphy v Brentwood DC

o

Complex Structure Theory: 2

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