Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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Product Liability
Remedies under contract law
If C could show a contractual relationship between himself and D
Then could claim for defective product
Advantage = C would not be required to show fault of seller
Merely that seller in breach of the term of contract
Equally, no problem in awarding damage caused by defective property, whether personal or injury
Will also award compensation for replacement
And Sales of Goods Act 1979 help with “implied terms”
If you buy something from a shop, there is a contract with implied terms that
Product will be of satisfactory quality
And fit for purpose
Disadvantages of relying on contract law for remedy are many:
Must be a term in contract which provides products should not be defective
Subject to Contract (Rights of Third Parties) Act 1999, Privity rules stop third parties from claiming and taking advantage of terms contracted between parties.
Seller may exclude liability for the breach owing to exemption clauses
Although Unfair Contract Terms Act 1977 does help to negate this problem
Chain of contracts between parties mean liability will eventually flow back to the manufacturer
BUT chain can be easily broken by exemption clauses or insolvency of one of the parties, meaning claim may fall arbitrarily on one party in the chain, regardless of fact it is manufacturer’s fault.
Remedies under Tort law – negligence
Before developments in the law, only if product was inherently dangerous (e.g. dynamite) and classified as such would M owe duty to warn recipient of the danger
Scrutton LJ: shouldn’t be a difference between “dangerous” products (e.g. poison) and products which by negligent construction become dangerous
The latter is probably more dangerous because it is a wolf in sheep’s clothing
rather than an obvious wolf like the former
Donoghue v Stevenson [1932]:
Lord Buckmaster (dis):
Breach of D’s contract with A to use care and skill in and about the manufacture or repair of an article
does not of itself give any cause of action to B.
when he is injured by reason of the article proving to be defective
Exceptions to the rule exist
When product is inherently dangerous and B comes to harm owing to A not taking reasonable care during manufacture
When product is not inherently dangerous and B comes to harm owing to A failing to disclose a known defect.
Lord Atkin:
If M prepares goods knowing they will be opened by the ultimate consumer (X)
before X has any chance of inspecting the goods/ reasonably ascertaining any problem before purchase
Then if M, by negligence, causes the goods to be poisoned
X should have a remedy against M.
If this is not the law, it should be.
What is the scope of negligence liability?
Must be a product
Donoghue v Stevenson [1932]:
Lord Atkin: anything manufacturer knows/should reasonably know might be used by not just the ultimate purchaser but someone else.
Need to establish normal duty of care
But this can be applied to anyone involved in any part of the manufacturing process
And to people other than the recipient
E.g. tyre flies off of van owing to negligent repairs and injures bystander
Repairer is liable to that bystander, even they were not the recipients of the repair (the drivers/owners were).
And breach
There is a presumption that adequate care has not been taken if the product is defective
Grant v Australian Knitting Mills [1936]: C injured from wearing underpants with too much sulphur in them, even though D claimed to have taken many precautions to stop this very problem.
Lord Wright:
Fact product is defective is all C can reasonably be expected to prove – can’t be expected to show where in the process reasonable care was not taken
Thus, presumption = if C proves defect = not reasonable care
And it is up to D to show that reasonable care was taken despite the presence of the defect
Stuff you can claim
Personal injury
Property Damage
Murphy v Brentwood [1991]:
But not PEL – which is essentially the cost of repair or replacement of the defective product.
Defences
Reasonable possibility that product was interfered with after leaving M
M only liable if it was M’s fault
Grant v Australian Knitting Mills [1936]:
However, mere possibility that the products could have been interfered with after leaving manufacturer is irrelevant
Only if interference of X causing defect can be shown to be “reasonable possibility” will M not be liable
Caveat Emptor – C or another could have inspected the product for defects before use
In Donoghue v Stevenson the ginger beer bottle was opaque and impossible to inspect without opening, which would only be done after purchase.
But where reasonable opportunity for supplier to examine product for obvious defects after receiving from M.
Then supplier will be liable, not M for any subsequent injury to C or C’s property.
But not where M knows no inspection will be carried out on the product owing to its immediate use
M places warning to product must be examined before use.
Liability under statute – CPA 1987
Who can sue and what is actionable damage?
S.5(1)
the person who suffers
Personal Injury
OR Property Damage
as a result of a defective product.
S.5(3) Unless product is not
(a) ordinarily intended for private use
(b) intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption
S.5(2)
Or property damaged came with the defective product (so no PEL)
Who is liable?
S.2(5) – If more than one tortfeazor under different...
Buy the full version of these notes or essay plans and more in our Tort Law Notes.
Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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