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Law Notes Tort Law Notes

Product Liability Notes

Updated Product Liability Notes

Tort Law Notes

Tort Law

Approximately 1070 pages

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

  • Generally

  • Development: prior to Donoghue, liability restricted due to privity but Lord Macmillan asserted priority of negligence over privity rule liability regularly imposed on manufacturer since Donoghue calls for strict liability as in US + Pearson Commission recommendation EC issued Directive 85/374/EEC requiring harmonisation of product liability laws UK adopted a form of strict liability for PL.

  • Consumer Protection Act 1986- additional liability on manufacturer where damage is caused by defect in the product.

  • Liability extends to consequential damage only (property/PI) – no assessment with ref. to purchase price, value or damage done to the product.

  • Damage to ‘commercial property’ isn’t covered (s2(3) CPA)

  • Justification for Imposing Strict Liability

  1. Efficiency based considerations based upon insights of economic analysis - producers are able to spread the risk of damage through adoption of insurance/pricing + are best placed to minimise the risk of damage by taking precautions at design/manufacturing stages of production

  • But could challenge by saying they load excessive costs of precaution on manufacturers, stifling innovation and possibly leading towards ‘insurance crisis’

  • Validity of economic argument for harmonisation of PL through a directive has been questioned -prior, all MS had laws concerning PL and it was far from clear what effects upon producer prices would come from moving to general strict liability regime. Even on assumption that it might have significant impact on prices, Dir. as drafted is unlikely to level out the conditions of competition, since it doesn’t seek to harmonise remedies available to consumers in various MS.

  • Level of damages payable is left up to MS - it is possible, not obligatory, to impose a maximum limit of 70mln. Euros.

  • Directive allows MS to include/exclude agricultural products &game (UK included the former in 2000).

  • MS can make provisions for own ‘state of art’ defence where producer will be exempt if it’s shown that defect couldn’t have been discovered given the state of scientific/technical knowledge at the time it was put into circulation.

  • It permits but doesn’t require the use of contributory negligence as a defence.

  1. Stapleton’s ‘moral argument-if, in seeking financial profit, enterprise causes certain types of loss, it should be legally obliged to pay compensation to the victim’ this idea links most areas of strict liability in tort, although it doesn’t explain all aspects of modern PL law

  • Justification for the 1985 Directive

  • Preamble argues a different liability regimes b/w MS may distort the market by subsidising producers in some states & penalising others, so liability w/out fault on the part of producer is the sole means for adequately solving the problem, peculiar to the age of increasing technicality & fair apportionment of risks inherent in modern technological production.

  • Objects of PL

  1. compensation of consumer

  2. consumer protection – public & individual safety: behaviour control: regulation

  3. need to balance economic policy

  4. wealth redistributiona very stretched out one?

  • CPA 1987

  • Provided rights over & above those @ commonlaw of tort & contract w/out removing protection offered by it. But, due to ltd scope, C may still sometimeshave to frame his cause of action in negligence/breach of contract instead.

  • In A v National Blood Authority, Burton J declined to engage in detailed interpretation of the Act stating it was better to go straight to Directive itself.

  • Arnull (2001): this goes further than required by ECJ - could be taken to imply that, whatever the national implementing legislation may be, English courts will always give effect to requirements of Directive.

    1. Who may be liable? - s2(2)

  1. Producer

  2. Own brander -someone who, by putting their name or using trademark, holds himself out to be the producer

  • liability depends on nature of the mark

  1. Importer -imports in the course of business & for purpose of ‘supply’ as defined in s46 – applies only to 1st importers into EU

  2. Supplier- mere supply of goods insufficient; however, if conditions in s2(3) are satisfied, may be liable.

  • no liability attaches if can identify one of the three persons above (then consider liability under SGA 1979l i.e. goods have to fit w/description etc.)

    1. ‘Product’ s1(2)

  • Goods (incl. ‘substances, growing crops, things comprised in land by virtue of being attached to it& any ship, aircraft, vehicle’ and product comprised in another product (s45))

  • all movables/goods/electricity,even if incorporated into another movable/immovable

  • agricultural products were excluded from unless undergone ‘industrial process’, but after Modification Order 2000 extends to primary agricultural products

    1. Meaning of ‘Defect’

  • There’s scope for C to succeed under CPA where he couldn’t under negligence & defectiveness is likely to be easier to prove in simple, more mechanical cases. But it’s true that regime isn’t full strict liability one.

  • Test: the public’s as a whole legitimate expectation as to safety of the product (not whether producer took reasonable care to ensure safety!)

  • Steel: interpretation of defectiveness is crucial and if the definition of defect proves to be capricious or anomalous, the resulting regime will only be defensible on the grounds of being a ‘compromise’

  • Relevance to avoidability of defect in assessing defectiveness

  1. Taken into acc & pointed towards concluding product was defective

  • ImanAbouzaid v Mothercare[2001] - C injured by the buckle of elastic trap used to fasten one of the products, producer could have done more to prevent the accident (one of factors why product defective). No development risks defence could arise b/c a simple test could show defect existed at the time of manufacture & the risk wasn’t outside the scope of reachable knowledge.

  • NB: negligence claim would have failed b/c risk of injury was small & reasonable manufacturer...

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