#4655 - Product Liability - GDL Tort Law

• Both contract and tort are relevant when considering product liability – also covered by stature

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

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

  • 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

• 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

• “Consumer”:

  • Definition is very wide

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

  • 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

• “Manufactuter”

  • Wide definition – all those who were involved with the offending product

    • Repairers – Stennett v Hancock

    • Lift engineers – Haseldine v Daw

    • Suppliers – Watson v Buckley

    • Distributors – e.g. fitter in Malfroot v Noxal Ltd

    • Assemblers – Howard v Furness

    • Second 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

• Breach: normal principles of negligence apply

  • Standard: reasonably competent manufacturer (question of law)

  • 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

  • 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)

  • Onus on the C to prove breach – this may be difficult as they will have poor knowledge of the scientific methodology of the manufacturing process

    • Evans 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

• Causation

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

  • 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 occur

    • But: 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)

  • 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)

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

  • Damage must be reasonably foreseeable – (Wagon Mound (No 1))

• Damage: must prove damage has occurred

  • 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

  • Complex Structure Theory:

    • Aswan v Lupdine – applied complex structure theory to products – if the defect (ie packaging) damages the property inside – then you may claim for this damaged property (obiter)

Defences

• Often there will be contributory negligence if the consumer hasn’t used the product properly

  • C’s full appreciation of the danger

  • Misuse of the product

  • Adequate warnings on the product

• Product not defective at the time of supply