#5373 - Product Liability Notes - Tort Law

• Donoghue (1932) – Court – manufacturer of products sold with ultimate aim of reaching a consumer in the form in which they left his possession and with knowledge that absence of reasonable care in preparation would likely result in injury owes a duty to take reasonable care in not sending products which you can reasonably foresee would be likely to cause injury. Also suggested a requirement of control of manufacturer over product existed.

• Grant (1936) – Woollen garments were negligently exposed to sulphates during production. C contracted dermatitis as a result.

Lord Wright – For product liability proximity is only needed in the sense that want of care and the injury are connected. The ‘control’ element specified in Donoghue isn’t needed except in sense that nobody else has messed with the product.

There must be a hidden, latent defect.

The Consumer Protection Act 1987.

• EU Directive on Liability for Defective Products – Art 1 – a producer will be liable for damage caused by a defect of their product.

Art 2 – ‘Product’ means all movables even if incorporated into another moveable or on an immovable. Includes electricity.

• Consumer Protection Act 1987 – Part 1:

1(1) – Part will have effect so as to give effect to Directive.

1(2) – ‘Producer’ means manufacturer, person who won or abstracted it, person who carried out industrial process/other process. ‘Product’ means any goods or electricity including products comprised in other products whether being raw material, component or otherwise.

1(3) – Person supplying any product in which products are comprised shall not be treated as having supplied those components just because he supplied the whole.

2(1) – where damage caused wholly/partly by defect in product everyone under (2) is liable.

2(2) – producer, person who by putting name or distinguishing mark holds himself out to be producer, person who imported the product into a MS from outside MSs in course of business to supply to another.

2(3) – Where defect causes damage supplier (to any person) liable if (a) sufferer requests supplier to identify someone under (“) above, (b) request made in reasonable time where not reasonably practicable for requestor to find them, and (c) supplier fails within reasonable period to identify at least his supplier.

2(5) – Liability joint and several if more than one liable under this Part.

3(1) – Defect if safety of product is not such as persons generally are entitled to expect. ‘Safety’ shall include safety with respect to products comprised in that product and in context of damage to property and in context of risks of death/injury.

3(2) – In determining what person is entitled to expect all circumstances to be considered including: (a) the manner in which, and the purposes for which, the product has been marketed, instructions, warnings, (b) what might reasonably be expected to be done with or in relation to the product, (c) the time when the product was supplied by its producer or another.

4(1) – defences: (a) defect attributable to compliance with requirement imposed by EU enactment or other obligation, (b) person proceeded against didn’t at any time supply product to another, (c) following conditions satisfied – (i) only supply by D was not in course of business, and (ii) 2(2) above doesn’t apply or only applies by virtue of things done without view of profit, (d) defect didn’t exist at relevant time, (e) 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, or (f) that the defect: (i) constituted a defect in a product in which the product in question had been comprised, and (ii) was wholly attributable to the design of the subsequent product or to instructions given by the producer of that product.

4(2) – relevant time for electricity is when generated, for other products (a) if 2(2) applies then when product supplied to other, (ii) if it doesn’t apply the time it was last supplied under 2(2).

5(1) – ‘damage’ means death, personal injury or loss of or damage to property (inc. land).

5(2) – not liable for damage to product itself or part/whole of product supplied with it.

5(3) – not liable for damage for property which at time of damage is not of a description ordinarily intended for private use, and is not intended for C’s private use.

5(4) – damage must exceed 275.

5(5) – damage regarded as occurring at earliest time at which a person with an interest in the property had knowledge of material facts about the damage.

5(6) – material facts are those about damage as would lead a reasonable person with an interest in it to consider the damage sufficiently serious to justify his instituting proceedings against a defendant who wouldn’t dispute the case.

5(7) – person’s knowledge includes that which he might reasonably be expected to acquire from facts ascertainable or from facts ascertainable with expert advice reasonable to seek.

7 – liability shall not be limited in contract.

45(1) – business = trade or profession, activities of a professional or trade association or public authority.

Goods = substances, growing crops, things comprised in land by virtue of being attached to it and any ship, aircraft or vehicle.

Personal injury = disease, other impairment of physical or mental condition.

Substance = natural or artificial substance, solid, liquid or gaseous including mixed things.

46(1) – supplying includes, as principal or agent, (a) selling, hiring or lending, (b) hire-purchase, (c) performance of contract for work and materials to furnish the goods, (d) providing goods in exchange for consideration, (e) providing goods in stat function, and (f) making gift or prize of the goods. For gas and water this includes providing the service by which gas and water are made available.

46(3) – building counts as supply so far as it involves provision of goods by their incorporation into the building.

46(4) – where goods transferred by creation of interest in land it isn’t supply.

46(8) - continuation or renewal of a hire or lending won’t count as another supply.

• Escola (USA) (1944) – Coke bottle exploded, injuring C as she put it in the fridge.

Traynor J – manufacturers should be liable for any damage caused by placing an item into market with the knowledge it will be used without further inspection. The manufacturer is the most efficient party to anticipate and reduce hazards so we should require them to, they can also afford insurance for this. [Maybe argue each case poses different potential dangers so better checked further down the chain where you can...