Products Liability Notes

Products liability, vicarious liability and non-delegable duties, and joint liability

Products Liability

C has suffered harm bc of a dangerously defective product 3 options:

1. Sue the seller in contract (s14 Sale of Goods Act)

2. Sue the manufacturer in negligence (manufacturer must have been at fault)

3. s2 Consumer Protection Act 1987

Common Law

Persons Liable

Donoghue v Stevenson (1932) – Lord Atkin set out the ‘narrow rule’: “A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable step.”

There is no liability for damage caused by defective products in CL unless there is negligence. There is no product in respect of which there is no liability for negligence. The duty has been extended from manufacturers to repairers, fitters, erectors and assemblers. The duty extends to taking steps concerning dangers which are discovered only after the product has gone into circulation.

Andrews v Hopkinson (1957) – Although a distributor/supplier does not make the product, a duty to carry out an inspection of the product and take reasonable steps accordingly will arise, but only if in all the circumstances the supplier could reasonably be expected to carry out an examination.

Hurley v Dyke (1979) – A suitable warning of possible defects may be sufficient to discharge the DoC (old car was sold “as seen and with all its fault and without warranty” sufficient bc D had no knowledge of the specific defects but knew the car was generally dangerous).

Extension of subject matter

Liability has been extended to non-food/drink products. “Consumer” includes the ultimate user or anyone within physical proximity to the product (Brown v Cotterill (1934)). The duty of reasonable care extends to the product’s transport container or package (Barnes v Irwell Valley Water Board (1938)), plus its labels, directions or instructions (Watson v Buckley (1940)).

Burden of proof

BoP of proving negligence is on C, but C need not specify what D did wrong (i.e. where the manufacturing process went wrong). C need only establish that, on the balance of probabilities, the defect arose in the course of manufacture by D (almost strict liability). This may be by proving that nothing happened to the product post-leaving the factory that could have caused the defect (Mason v Williams & Williams Ltd (1955)).

Grant v Australian Knitting Mills Ltd (1936) – D cannot argue that it is possible that the product was interfered with post-leaving the factory – the mere possibility of interference does not negative D’s liability. There must be, though, sufficient evidence given by C that the defect existed when the article left the manufacturer’s hands and that it was not caused later.

Davie v New Merton Board Mills Ltd (1957) – The use of the article by C for a purpose materially different from that for which the maker designed it or which he might reasonably be taken to have contemplated will also defeat a claim, but use for a different but similar purpose does not – the question is one of fact and degree.

• Good test: was C’s injury caused by the product’s defect or by C’s own misuse of it?

Intermediate Examination

Lord Atkin’s narrow rule in Donoghue v Stevenson only applies where there is “no reasonable possibility of intermediate examination” (this is not a requirement to show negligence, but one factor to be considered). Probability of intermediate examination will only exonerate D if it gives him reason to expect that it will reveal the defect and that this will result in the elimination of the defect or at least C being warned of it in such a way as to make him safe (McIlveen v Charlesworth Developments (1982)).

Nature of the loss

There is no liability for the defect itself – under Donoghue v Stevenson there is only liability for personal injury and property damage caused by the defective product. Financial loss caused by the failure of the product to fulfil its function can only be claimed under the Sale of Goods Act 1979. It would also be impractical for the law to impose liability for defects of quality and performance.

Murphy v Brentwood (1991) – Creating something in a defective condition is not damaging it; there is no decrease in the value/usefulness, just creating a product not as well as it could have been made. This is so even if, e.g. cracks in a house, appear due to defective plastering.

The law regarding complex structures/products was discussed in Murphy v Brentwood DC (1991).

• It is clear that when a defective component in a complex product causes damage to the product itself, and the defective component is a replacement or added part, the manufacturer is liable for damage to the rest of the article (regardless of whether he was the manufacturer of the article in its original state).

• When one part of a complex structure/product cause damage to another part of that complex structure/product, it may be possible to regard the defective part as having caused damage to “other property”. However, what counts as “other property” probably depends on how integral/central the defective part is to the whole product. For example, it is hard to argue that foundations which are defective and cause damage to the rest of the house have caused damage to “other property” – when a single builder builds a house from the foundations upwards he is creating a single, integrated unit. Conversely, where separate contractors install different parts of the structure, or the defective part is “ancillary” to the rest of the product (e.g. a car radio in a car), it may be possible to regard the defective part as “other property” to the rest of the complex product.

• The case was inconclusive and the theory of the complex structure was not wholly embraced.

M/S Aswan Engineering Establishment Co v Lupdine Ltd (1987) – Regarding defects in packaging. C lost some waterproofing compound when the pails in which it was contained collapsed because of high temperatures to which they were exposed in Kuwait. Claim failed bc circumstances in which dmg occurred reasonably foreseeable. Two views expressed:

• Lloyd LJ – If circumstances = reasonably foreseeable, D should be held liable for the dmg.

• Nicholls LJ – Imposing liability for container manufacturers would be unreasonable (and also the contents are not strictly “other property” of C).

NB: These issues are likely better dealt with in contract law, rather than tort.

Where a repairable defect is discovered but the property is used with knowledge of the danger C cannot claim for damages (D&F Estates Ltd v Church Commissioners (1989), Murphy v Brentwood DC (1991)).

Consumer Protection Act 1987

s2 CPA sets out the basic strict liability rule:

Product

s1(2) – product = “Any goods or electricity and includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise”.

• s45(1) – Goods = “substances, growing crops, and things comprised in land by virtue of being attached to it and any ship, aircraft or vehicle”. A whole building “goods”, nor would information, although misleading instructions are not the same as “pure” information. Difficult line to draw between defective software and hardware.

• s1(3) – “A person who supplies any product in which products are comprised… shall not be treated by reason only of his supply of that product as supplying any of the products so comprised”.

Defect

s3 – defect = “There is a defect in a product… if the safety of the product is not such as persons generally are entitled to expect” taking all the circumstances into account s3(2) and Wilkes v Depuy International Ltd (2016) clarifies this…

s3(2) draws attention to the following particular circumstances to consider:

1. “the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;

2. what might reasonably be expected to be done with or in relation to the product; and

3. the time when the product was supplied by its producer to another,

and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.”

A. The law pre-Wilkes

It is useful to draw on an American distinction between types of defect:

Manufacturing defect = when a product does not conform to its intended design (Burton J in A v National Blood Authority (2001, EWHC): a “non-standard” product).

If everyone is aware a manufacturing defect might exist, it is hard to argue that the product is defective under s3. However, even if the public are aware of the risk of defective products, each individual user is entitled to expect that his product is non-defective.

If a defective product is still safer than anyone would expect it to be, it is hard to argue that the product is defective under s3 (Tesco Stores Ltd v Pollard (2006)).

Will normally be possible to infer that it will be defective, unless there is public acceptance of the risk (which case? From seminar).

Producer cannot argue that the product is not defective bc it would be very difficult to ensure it did not suffer from a manufacturing defect (A v National Blood Authority (2001)).

Because we know that non-standard defects will arise in every type of product (e.g. 1 in every 10,000), these defects are predictable and the costs of claims can be built into the business model.

Design and marketing defects (occur in “standard” products = come off the production line as they are intended and designed to be (Burton J)).

• Design defect = product could have been designed to a higher safety standard.

• Marketing defect = product does not carry a warning of a particular risk.

Invariably holding manufacturers liable for damage caused by design defects would lead to very safe but also very costly and inconvenient products. If the product gives the impression of being designed to a higher safety standard than it is very likely defective.

s3(2) has a time element – the safety of a product is to be judged by reference to the standards prevailing when it was put into circulation.

Generally, courts say a standard product is only defective if in retrospect it would have been desirable for the product not to have some dangerous feature X or to have some safety feature Y, given the costs and benefits in installing or removing a feature (this test used by Field J in B (a child) v McDonald’s Restaurants Ltd (2002)).

A standard product is NOT defective only if the manufacturer could be held liable in negligence. Negligence claims depend on foreseeability of injury. Defective product claims depend on whether it would have been better for the product to be differently designed. This was made clear in Abouzaid v Mothercare (UK) Ltd (2001), where a safer sleeping bag could have been designed at no added cost, but the manufacturer was not negligent because injury to someone like C was not foreseeable.

A standard product may be perfectly safe unless used in an improper way or for an improper purpose. Where a risk is not obvious to a user, the product may be defective because it is not accompanied by adequate warnings or instructions.

B. Wilkes v Depuy International Ltd (2016, EWHC)

C underwent a hip replacement operation in 2007, which involved replacing the hip in his left leg with an artificial joint called a C-stem. In 2010 it was discovered that the C-stem had fractured and needed to be replaced. C brought a claim under the 1987 Act against the manufacturer of the C-stem, arguing that it was defective under s3 CPA claim dismissed.

Hickinbottom J emphasised the need for a more flexible and holistic assessment of the safety of a product which took into account all the relevant circumstances, rather than the rigid standard/non-standard distinction; the Wilkes judgment stated that “concentration at this early stage on causation is a distraction from the true focus… which is on defect”. However, Hickinbottom J still used the distinction in his later analysis so the principles defined above are likely still in use.

The Q is one of balancing the risks to the benefits (ask Emily Millard / read case).

NB: It is worth noting the different questions posed by the CL and the Act:

• CL: was it reasonable to produce and market this product in light of the risks and benefits?

• Act: what degree of safety are persons generally entitled to expect from this product?

Who is liable?

Three categories of person listed in s2(2):

1. Producer of the product (s2(2)(a)) –

   • defined in s1(2) as:

1. the person who manufactured it;

2. in the case of a substance which has not been manufactured but has been won or abstracted, the person who won or abstracted it;

3. in the case of a product which has not been manufactured, won or abstracted but essential characteristics of which are attributable to an industrial or other process having been carried out (e.g. in relation to agricultural produce), the person who carries out that process.

• Point (a): if the product causes damage due to a defective part both manufacturer of the component part and final manufacture/assembler are treated as producers.

• Point (b): covers minerals and raw oil.

• Point (c): covers anything not included in the previous two points (this raises awkward questions of what is the “essential characteristic” of the product).

2. ‘Own branders’ (s2(2)(b)) = “any person who by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product”.

• The provision is narrow: not enough to merely put name on goods – must do so in such a way to hold oneself out as the producer question of fact.

3. Importers into the UK (s2(2)(c)) = “any person who has imported the product into the UK from a place outside the UK in order, in the course of any business of his, to supply it to another”. (NB: amended from ‘EU’ to UK’ in light of Brexit).

• This provision relieves C of problems of suing a foreign producer.

s2(3) – A supplier who receives a request from an injured person to ID the producer is liable if he does not do so, within a reasonable time, either ID the producer or his own supplier enables C to trace “anonymous” goods back along the chain of distribution to either (i) the person who carries primary liability under the Act, or (ii) anyone who breaks the chain by his inability to identify his supplier.

Damage

s5(1) – damage = “death or personal injury or any loss of or damage to property (including land)”.

• “Personal injury” = “any disease and any other impairment of a person’s physical or mental condition” (s45(1)) suggests C can claim for psychiatric illness.

No liability is imposed for:

• Auto-destruction – s5(2) – A person shall not be liable in respect of any defect in a product for the loss of or any damage to the product itself or for the loss of or damage to the whole or any part of any product which has been supplied with the product in question comprised in it.

  • Law of negligence allows claims where a product is damaged due to a defective part, provided that that part and the rest of the product can be viewed as two separate items of property (C can then sue whoever was at fault for the defective part of the product).

• Damage to commercial property – s5(3) – A person shall not be liable for any loss or damage to any property which, at the time it is lost or damaged, is not

1. ordinarily intended for private use, occupation or consumption

2. intended by C mainly for his own private use, occupation or consumption.

• suggests C will only be barred from bringing a claim under the CPA if C has suffered damage to property that is both (i) not ordinarily intended for private use, and (ii) not intended by C for private use.

• The Directive, though, specified that damages should only be available if the property damaged was both (i) of a type ordinarily intended for private use or consumption, and (ii) was being used by the injured person mainly for his own private use or consumption.

• ISSUE = when a product is intended for private use but C does not intend to use it for private use OR when a product is not intended for private use but C intends to use it for private use (i.e. fulfils only one of the requirements):

  • s5(3) suggests D is liable.

  • Directive suggests D is not liable.

• Hence, unclear how s5(3) should be read (the 1987 Act was passed to give effect to Council Directive 85/374/EEC courts must interpret Act to give effect to the Directive’s objectives).

• Trivial damage to property – s5(4) – Loss/damage to property must exceed 275 to obtain damages (excluding interest).

  • Unclear whether this applies to each piece of property damaged or whether claims are added together (aggregated).

  • Likelihood = applies to each piece of property damaged (Act talks about claims for compensation in respect of “any property” “any” implies ‘each item’).

  • This also makes sense in principle – the act is trying to weed out trivial claims – if everything in my kitchen was worth 274 each, and all of it was destroyed, on a non-aggregate basis there would be no compensation.

Defences

s4(1)(a)-(f) CPA provides a list of defences for liability for damage caused by defective products. providing that it shall be a defence for D to show:

1. that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any EU obligation; or

   • Compliance with the minimum legal standards does not automatically provide a defence – only when compliance necessitates the existence of the defect.

2. that the person proceeded against did not at any time supply the product to another; or

   • ‘Supply’ here includes hiring or lending, but not merely putting goods in another’s hand for them to use, i.e. the defence that D did not put the product into circulation.

3. that the following conditions are satisfied, that is to say—

   1. that the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person’s; and

   2. that section 2(2) above does not apply to that person or applies to him by virtue only of things done otherwise than with a view to profit; or

   • I.e. there is “non-commercial” supply.

4. that the defect did not exist in the product at the relevant time; or

   • The defect arose from interference, misuse or fair wear and tear – the possibility or probability of intermediate examination does not insulate D from liability.

5. that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control; or

   • ECJ said this is not directed at the state of knowledge in the relevant industrial sector but at the state of knowledge in general. In other words, the knowledge must be accessible. The defence only applies if there is no knowledge of the existence of the risk in a generic sense once this knowledge has been acquired, the manufacturer produces at his own risk, even if it is impossible to identify the individual, non-standard products in which that risk is present.

   • Holding businesses liable for defects they could not possibly have foreseen both raises costs and inhibits innovation.

6. that the defect—

   1. constituted a defect in a product ( “the subsequent product”) in which the product in question had been comprised; and

   2. was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product.

   • Hence, D will avoid liability if A incorporates D’s component into A’s own product, for which D’s component is entirely unsuitable. Unclear where D knows or ought to know, through inexperience, that A intends to make unsuitable use of the component.

s4(2) provides when the “relevant time” is (= when D supplied the product to another or when the product was last supplied by a person to whom s(2)(2) does apply).

CPA applies the Law Reform (Contributory Negligence) Act 1945 – when damage is caused partly by a defect in a product and partly by the fault of the injured person then the defect is to be treated as if it were the fault of every person liable for it under the Act.

• Where C’s fault or misuse is extreme then it may amount to the sole cause in law and deprive him of any damages.

• Howmet v Economy Devices – given that Howmet had discovered the defect before the damage took place, EDL did not owe Howmet a continuing duty in respect of the safety of the thermolevel (from practical law summary) voluntary use of product known to be defective. This is just an extension of the principle that unreasonable conduct of the claimant can break the chain of causation.

D who is sued under CPA cannot use C’s consent as a defence (i.e. volenti non fit iniuiria).

s7 – D cannot limit or exclude his liability “by any contract term, by any notice or by any other provision”, no matter what the nature of the damage.

• Care must be taken to distinguish substance from form: the clause “manufacturers will not be responsible unless this product is earthed” is not an exclusion of liability but a warning which goes to the safety of the product under s3.

s11A Limitation Act 1980 – D cannot be held liable for damage caused by a defective product unless he is sued for that damage within 10yrs of the product going into circulation.

• C must bring claim within 3yrs of suffering the damage, or when he could have reasonably been expected to realise he had suffered “significant damage”. He must identify the person responsible for the damage.

Remedies

Anyone who has suffered actionable “damage” as a result of a product being defective can claim under the CPA (even if we might not say they are a ‘consumer’). The Act gives no limit on the range of third parties who will be entitled to sue for damages.

s6(1) – Any fatal accident which was caused by D’s defective product will be deemed to have been caused by D’s wrongful act, neglect or default.

s6(4) – If C was...

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