Product liability

What are the three regimes of product liability?

1. Contract law (Sale of Goods Act 1979 — strict liability against the retailer).

2. Negligence (Donoghue v Stevenson — fault-based, against the manufacturer).

3. Consumer Protection Act 1987 (strict liability against the producer). The CPA was enacted to implement EU Directive 85/374/EEC.

Why sue in tort rather than contract for a defective product?

Contract only protects the buyer (privity). A third party who receives a product as a gift (like Mrs Donoghue) has no contract with the retailer. Negligence allows suing the manufacturer directly. Also, contract cannot recover for personal injury caused by design defects as easily.

What is the foundational case for product liability in negligence and what did it establish?

Donoghue v Stevenson [1932] — manufacturers owe a duty of care to the ultimate consumer. Mrs Donoghue found a decomposed snail in ginger beer bought for her. HL held (3-2) that a manufacturer owes a duty to ensure products reach consumers without dangerous defects. Abolished the old 'dangerous/non-dangerous' product distinction and discarded the 'privity of contract fallacy'.

Who owes a duty of care in product liability negligence, and to whom?

Duty extends beyond manufacturer/consumer. Who owes it: manufacturers, packers, machine operators, distributors, retailers. To whom: end-purchaser, ultimate user (even a gift recipient), and bystanders. Key cases: Stennett v Hancock & Peters [1939] (pedestrian hit by fallen lorry wheel — duty extended to bystander); Watson v Buckley [1940] (duty extends to instructions and packaging).

What is pure economic loss and why does it matter in product liability?

A defect in the product itself is pure economic loss — unrecoverable in tort (only in contract). Murphy v Brentwood [1991]. So you can claim for harm the defect causes to other property or your person, but not for the cost of replacing the defective product itself. Exception: the Complex Structure Theory.

What is the Complex Structure Theory?

Component parts may be treated as a separate product. If a defective component damages the rest of the product, that can be consequential property damage (not pure economic loss) and is recoverable. E.g. a replacement tyre that explodes and damages the car = component damages the 'complex structure' → recoverable. The tyre itself = pure economic loss → not recoverable. (Lloyd LJ obiter in Aswan Engineering v Lupdine [1987].)

How is breach established in product liability negligence?

The question is whether the manufacturer exercised reasonable care. Breach can be inferred from the defect itself — courts presume a defect means carelessness during manufacture. The defendant must rebut this with evidence. Key case: Grant v Australian Knitting Mills [1936] — sulphites left in woollen underpants caused skin condition; court inferred negligence.

When might the inference of breach NOT be drawn?

If there is a reasonable possibility of interference with the product after it left the manufacturer. Evans v Triplex Glass Co [1936] — windscreen failure; court found fault more likely with the fitters than the manufacturer. Compare Grant: interference must be proven on the facts, not just possible.

What duty do manufacturers have post-sale?

Duty to warn: E Hobbs v Baxenden Chemical Co [1992] — duty to warn customers of newly discovered risks. Duty to recall: Walton v British Leyland [1978] — manufacturer knew of a defect causing wheels to come off; held liable for failure to recall. Note: Grimshaw v Ford [1981] (US) — Ford calculated it was cheaper to pay damages than recall the Pinto. Illustrates limits of private law

How does causation work in product liability negligence?

Standard 'but for' test applies. Courts draw inferences from circumstances. Intermediate examination matters: if someone in the supply chain inspected and could have discovered the defect, this may break the chain. Also, if the end-user had knowledge (actual or constructive) of the defect, the claim fails. Mason v Williams & Williams [1955] — inferred negligence once shown nothing happened to chisel after it left factory.

Why is causation especially hard for design defects (e.g. pharmaceutical products)?

Two things must be shown:

(1) the design defect can cause that type of harm, AND

(2) it actually caused this claimant's specific harm. Hard because other factors (genetics, environment) may also cause the same harm. Loveday v Renton [1988] — C could not prove whooping cough vaccine caused her brain damage. Wilsher v Essex AHA [1988] — multiple possible causes, couldn't identify which. The Thalidomide tragedy highlighted these limits.

What defences are available in a negligence product liability claim?

Standard negligence defences apply: volenti non fit injuria (consent to the risk), ex turpi causa (illegality), and contributory negligence (damages reduced proportionately). Also, a warning to the buyer can discharge the duty — Hurley v Dyke [1979] ('as seen and with all its faults').

What does the Consumer Protection Act 1987 Part 1 do?

Implements EU Directive 85/374/EEC. Makes producers strictly liable (no need to prove fault) for death, personal injury, and some property damage caused wholly or partly by a defect in their product. The Act must be construed in line with the Directive — A v National Blood Authority [2001]. Where irreconcilable, the Act prevails — Wilkes v DePuy [2016].

What must a claimant prove under the CPA?

1. They have standing (suffered covered damage).

2. The defendant is a proper defendant (producer, own-brander, importer, or supplier).

3. The item is a 'product'.

4. There is a 'defect'.

5. The defect caused the damage (causation).

6. The damage is of a type covered by s 5. Plus: claim brought within 3 years of harm and within 10 years of the product going into circulation.

Who can be sued under the CPA (s 2)?

Primary defendants (s 2(2)): (a) Producers/manufacturers; (b) Own-branders — those who put their name on a product made by another; (c) Importers into the UK. Secondary defendants (s 2(3)): Suppliers (retailers) if they fail to identify the producer when asked within a reasonable time. If multiple defendants: jointly and severally liable (s 2(5)).

What is a 'product' under the CPA (s 1(2) and s 45)?

'Product' = any goods or electricity, including component parts and raw materials. 'Goods' (s 45) = substances, growing crops, things attached to land, ships, aircraft, vehicles. Blood products are covered: A v National Blood Authority [2001]. Note: agricultural produce is NOT included unless subjected to an industrial process. Services are not products.

What is the definition of 'defect' under s 3 CPA?

S 3(1): 'There is a defect in a product if the safety of the product is not such as persons generally are entitled to expect.' This is an objective consumer expectation test. Burden on claimant. It is about safety, not quality. Hickinbottom J in Wilkes v DePuy [2016] described it as an 'empty vessel.'

What factors does s 3(2) CPA say to consider when assessing 'defect'?

All circumstances, including:

(a) manner/purpose of marketing;

(b) packaging ('get-up');

(c) use of marks (e.g. Kitemark);

(d) instructions/warnings accompanying the product;

(e) what might reasonably be expected to be done with it;

(f) the time at which the product was supplied. Note: a safer product supplied later does NOT make the original defective by comparison alone.

What is the Burton J three-stage test from A v National Blood Authority [2001]?

A v National Blood Authority [2001] — Hepatitis C in blood products; blood was 'non-standard.' Burton J's test: 1. What harmful characteristic caused the injury? 2. Was the product 'standard' or 'non-standard' (did it fail to perform as the producer intended)? 3. What are consumers' legitimate expectations? Key: unavoidability of the defect was NOT a relevant consideration under strict liability. Blood found defective.

What is the distinction between 'standard' and 'non-standard' products?

Non-standard product: one that does not perform as the producer intended (e.g. a contaminated batch). Easier to find defective. Standard product: every unit is the same — design/formula defects. Harder to show defective because it must be shown that the entire design is unsafe by consumer expectations. Even with non-standard products, consumer expectations must still be met.

Worsley v Tambrands [2000] — what was held and why?

Tampon allegedly defective after causing toxic shock syndrome. Held: not defective. The product came with comprehensive instructions and warnings about the small risk of TSS. 'Persons generally' (women using the product) were informed of the risk. Adequate warning rendered the product safe. Key principle: warnings can make an otherwise defective product non-defective.

Richardson v LRC Products [2001] — what was held?

Condom tip sheared off entirely during sex; claimants sued for costs of unwanted pregnancy. Held: not defective. It is well known that condoms are not 100% effective; this is stated in warnings on packaging. 'Persons generally' are not entitled to expect a condom to be infallible. Claim also involved wider policy issues about 'wrongful birth' claims.

Bogle v McDonald's Restaurants [2002] — what was held?

Customers scalded by hot coffee. Held: not defective. 'Persons generally' know that hot coffee can cause burns if spilt and that coffee must be served hot. The public are 'entitled to expect' hot coffee to be hot. Easy-remove lids were necessary to allow customers to add milk/sugar. Test = 'legitimate consumer expectation.'

Pollard v Tesco Stores [2006] — what was held?

Child opened supposedly child-proof dishwasher bottle lid (which did not conform to British Design Standard). Held: not defective. 'Persons generally' don't know the specific British Standard. What they expect is that a child-proof cap is harder to remove than a normal one — and it still was. Controversial: the manufacturers' knowledge of the standard was used rather than the public's.

Abouzaid v Mothercare [2000] — what was held and what was key?

12-year-old injured when elastic strap on 'cosytoes' pushchair cover recoiled into his eye, causing permanent retinal damage. Held: defective. The manufacturer could easily have avoided the risk (different fastening method or warning). Ease of avoidance is a relevant factor. 'Persons generally' would not expect injury from something as innocuous as a baby product.

Wilkes v DePuy International [2016] — what was held?

C-Stem component of hip replacement fractured inside body 3 years after surgery. Held: not defective. Fractured due to excessive, unpredictable load — not ordinary use. Objective consumer expectation test: no medicinal product can be absolutely risk-free, persons generally are not entitled to expect it. Factors:

(1) no cheaper alternative design;

(2) regulatory approval;

(3) adequate warning;

(4) small risk;

(5) limited consequences.

Gee v DePuy [2018] and Hastings v Finsbury [2022] — what approach did the courts take?

Gee v DePuy [2018] — 312 claimants affected by metal-on-metal hip replacements. Held not defective: test = whether product had 'abnormal tendency to cause damage compared to comparable products.' Cost, avoidability, societal benefit all relevant. Hastings v Finsbury [2022] UKSC — Supreme Court: entitled expectation = product should be no worse than existing alternatives, measured by 'time to revision' and 'prospect of success of revision.' Claimant failed on both. Now the leading authority.

What damage is recoverable under s 5 CPA?

Recoverable: death (s 5(1)), personal injury (s 5(1)), property damage exceeding £275 (s 5(4)). The property must be intended for private use (s 5(3)). Not recoverable: pure economic loss (s 5(2)) — including the value of the defective product itself. This mirrors negligence. Small property claims under £275 are excluded to limit trivial claims.

What is the 'development risks' / 'state of the art' defence under s 4(1)(e) CPA?

Defendant not liable if the state of scientific and technical knowledge at the relevant time was not such that a producer of the same type of product could have been expected to discover the defect. Most controversial defence — effectively reintroduces fault. Once the risk is generally known, the defence is lost (even if unavoidable): A v National Blood Authority [2001]. Thalidomide producers would likely have used this defence.

What did EC Commission v United Kingdom [1997] (ECJ) decide about the development risks defence?

EC v UK [1997] — Commission argued the UK's s 4(1)(e) wording was too subjective (focused on the 'reasonable producer'). ECJ held the proper test is objective accessibility: was the information that would have revealed the defect accessible to producers at the time? An obscure paper published only in a remote Mongolian journal = not accessible. A French-language French journal = accessible to European producers. Accessible = foreseeable → defence cannot apply.

What are the other five defences under s 4(1) CPA?

(a) Defect required by retained EU law.

(b) No supply by the defendant (e.g. product was stolen).

(c) Non-commercial supply (e.g. donating home-baked goods).

(d) Defect did not exist at the time the product was put into circulation.

(f) Component defect due to the design of the composite product or instructions given by the composite product's producer. Also: contributory negligence is available (s 6(4)).

What are the limitation periods under the CPA?

3 years from the date of harm or from the date the claimant discovered (or ought to have discovered) the harm. AND 10-year absolute long-stop from the date the specific product was put into circulation (Limitation Act 1980, s 11A(3)) — this is extinguished even if harm only occurs within the final days. If a wrong defendant is named, substitution may be allowed in limited circumstances: O'Byrne v Aventis Pasteur [2010] (Supreme Court).

How should you structure a product liability problem question answer?

Step 1: Identify claimant and defendant. Is the defendant a producer/own-brander/importer?

tep 2: CPA claim — is it a 'product' (s 1)? Is there a 'defect' (s 3 — run the Hastings test)? Is the damage covered (s 5)? Standard vs non-standard? Did warnings discharge liability?

tep 3: Negligence alternative — duty (Donoghue), breach (infer from defect?), causation (design defect difficulties).

Step 4: Defences — s 4(1)(e) development risks: was the risk accessible? Other s 4 defences. Contributory negligence.

Step 5: Limitation — 3yr / 10yr periods.