#16160 - Product Liability - Tort Law

Textbook 2

Articles 5

Fairgrieve and Howells, “Rethinking Product Liability” (2007) 70 MLR 962-978 5

stapleton, products liability 6

Whittaker, liability for products 7

Tettenborn, “Components and Product Liability” (2000) LMCLQ 338 10

Polinsky and Shavell, A Skeptical attitude about product liability is justified 11

Stapleton, ‘Products liability reform - real or illusory?’ (1986) 6 OJLS 392 11

Stapleton, “Products Liability in the United Kingdom: Myths of Reform” (1999) 13

Negligence 13

Grant v Australian Knitting Mills [1936] AC 85 (Inference of negligence) 13

Hamble Fisheries v Gardner [1999] 2 Lloyds Rep 1 (PEL) 14

Howmet v Economy Devices [2016] EWCA Civ 847, [75]-[101], [109]-[113] and [115]-[129] 15

Strict Liability 16

Rationale 16

Escola v Coca-Cola Bottling Co (1944) (US) 16

*Directive on Liability for Defective Products (85/374/EEC) 16

The Law 17

C 300/95 Commission v UK [1997] All ER (EC) 481 17

*A v National Blood Authority [2001] 3 All ER 289, [2]–[22], [31]–[81] 18

Wilkes v Depuy[2016] EWHC 3096 (QB) 22

Tesco Stores Ltd v Pollard [2006] EWCA Civ 393, [2006] All ER (D) 186 24

Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt-Die Gesundheitskasse (C-503/13) (2015) 144 BMLR 255 24

St Albans City and District Council v International Computers Ltd [1996] 4 All ER 481 (computer disk containing a program) 25

Tort and other compensation systems 26

Atiyah, Damages Lotteray, Chapter 8 26

Burrows, “In defence of tort” in Burrows, Understanding the Law of Obligations, 1998 26

Tort and insurance 27

Weinrib, ‘The Insurance Justification and Private Law’ (1985) 14 JLS 681 27

Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820 27

Morris, ‘Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury’ (2007) 70 MLR 349 (see also Compensation Act 2006, s 1) 28

Coleman, Risks and Wrongs (OUP 1992), pp.205–209 28

Evolution of product liability law in England

Movement away from negligence towards strict liability:

• 19C = obligations that originated in contract could not be extended beyond the scope of the agreement (Winterbottom v Wright, per Lord Abinger) rule of non-liability of manufacturers except things that are “inherently dangerous” (explosives, poison…) and fraudulent misrepresentations made directly to the plaintiff.

• Donoghue v Stevenson = negligence liability for manufacturers (preferring tort over privity rule in contract) most serious restriction is the need to show fault

• Grant v Australian Knitting Mill (chemical in underwear) = fault can sometimes be inferred (per Lord Wright (PC): “the process was intended to be foolproof. If excess sulphites were left in the garmet, that could only because someone was at fault. The appellant is not required to lay his finger on the exact person in all the chain who was responsible or specify what he did wrong. Negligence is found as a matter of inference from the existence of the defects taken in connection with all the known circumstances”)

  • //US allowing the application of res ipsa loquitur (reversing the burden of proof where it can be shown that D had exclusive control of the thing that caused the accident and where no explanation other than D’s negligence is forthcoming) to product liability (Escola v Coca-Cola Bottling Co) – though English law didn’t allow it, it basically achieves the same result

• However, Evans v Triplex Safety Glass = inference of fault is not always drawn (here the court declined to draw and inference of fault against the manufacturers of toughened safety glass which broke, holding that the fault could have occurred when the glass was fitted, and that suppliers had sufficient time to check it) possibility of intermediate examination and length of time between manufacture and accident might prevent an inference of negligence

  • //US rule also doesn’t assist in every case because what the consumer wants is to sue everyone down the chain, whereas no res ipsa loquitur can apply when the supplier (for example) receives the goods in a sealed container and therefore examination is impossible

Background to the Consumer Protection Act 1987

• Before 1987 C had two avenues of recourse for dangerously defective products:

  • Sue seller in contract (strict liability under s14 Sale of Goods Act 1979)

  • Sue manufacturer in negligence (only liable if at fault and harm foreseeable)

• Consumer Protection Act 1987 gave third avenue (s2) to sue producers or importers bringing in products from outside EU

  • Strict liability

  • Only liable for physical injury or harm to C’s property (like in negligence)

  • Originated from EU directive seeking to harmonize product liability laws across the EU because disparities distort competition and free movement of goods

    • Failed its objective:

      • Directive only harmonized product intended for private use ( commercial property)

      • MSs didn’t have to implement all aspects of directive + option of introducing a cap on liability

      • Didn't harmonize remedies for physical injury

    • Therefore real objective could be to improve health and safety

Definition of ‘Product’

• S1(2): any goods or electricity, includes product comprised of another product, manufactured + natural products (flowers, animals…))

• Probably includes body parts and blood

  • A v National Blood Authority held that contaminated blood counts as a product under the Act

• Unclear whether inaccurate map or faulty software would count (physical item would not be defective; only information on it will be). Issue not yet resolved by Courts

Defect

• S3: adopts a legitimate expectations test for determining whether a product is defective

  • Legitimate expectation test holds that there is a defect in the product if the safety of the product is not such as persons generally are entitled to expect

    • Caselaw takes the test as setting a limit on when a product will be regarded as defective: if product has feature X but people expect it to, then it will not be defective. If people don’t expect it to, it will be defective if consistent with the policy of the Act. Same is true of where people expect a product to have feature Y but the product doesn’t.

  • A v National Blood Authority: (feature X case) Cs infected with hepatitis C after receiving blood transfusions containing blood donated by people with the virus. At the time of infection, no test existed to detect whether a given bag of blood contained the virus. Cs sued the National Blood Authority, who couldn’t rely on legitimate expectation test because people generally didn’t know the risk of being infected with hepatitis C and couldn’t say that it would have been very difficult to avoid giving Cs contaminated blood because the Act imposes strict liability. Burton J held that the blood was defective, because holding otherwise would not be strict liability.

  • Tesco Stores Ltd v Pollard: (feature Y case) Dealt with what Burton J called in A v NBA a “non-standard product” – D manufactured a dishwasher bottle with a child-resistant cap with evidence that it wasn’t as strong as intended. A small child, C, opened the cap and got sick eating the powder. Held that it wasn’t defective as people generally expected child resistant caps to be stronger than regular caps and this one fulfilled the expectation. No evidence in the Act suggests that defective product liability is to hold Ds to their design standard.

• Standard products cases (cases where product is served exactly as expected, eg. coffee served at the right temperature but knocked onto customer by another customer) are more difficult because it is not immediately clear that the legitimate expectations test will rule these out as defective (not clear that customer expected coffee to be served at a temperature capable of burning)

• Law must weigh benefits of safety mechanisms against cost of over-protection

• Law seems to be that court will only hold a product defective if in retrospect the benefits of installing/removing a feature outweigh the costs

  • B v McDonald’s Restaurant Ltd: C sued McDonald’s when scalded by coffee spilled on them (wouldn’t have scalded if served at 55 degrees rather than 90). Held not defective because the costs (loss of custom) outweigh benefits.

  • Worsley v Tambrands: C argued that a box of tampons was defective because it didn’t contain a full warning of TSS on the box but only in a leaflet inside box (so if leaflet is thrown away C wouldn’t get adequate warning). Rejected claim – the rarity and gravity of TSS must be balanced, and the right balance is struck by the warning on the box and the full explanation in the leaflet

• However a standard product can still be defective under the Act even if not defective under negligence

  • Abouzaid v Mothercare: C injured attempting to fit sleeping bag onto pushchair by letting go of an elastic strap that hit him in the eye. Held not defective under negligence because not foreseeable that the type of sleeping bag would injure someone like C, but held defective under the Act because the bag could have been designed to a higher safety standard and in retrospect it would have been desirable to improve it (easy, no added cost).

Defendants

• Available defendants:

  • Producer

  • Anyone who held themselves to be producer

  • Importer into EU

• S1(2) defines producer as manufacturer of a manufactured product or the person who won/abstracted a natural product (eg. coal), or if a product is neither manufactured nor won/abstracted but associated with a process (eg. wheat in agriculture) then the person who carried out that process is producer

• S2(3) allows C...