Product liabili

common law negligence —duty

1. Donoghue v Stevenson [1932] AC 562

   1. principle: privity of contract fallacy does not prevent a manufacturer from owing a duty to the ultimate consumer

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2. Grant v Australian Knitting Mills [1936] AC 562

   1. facts: C purchased long johns manufactured w sulphite chemical → sufferred dermatitis → theoretical possibility of inspection because goods were not sealed

   2. principle: Was there a possibility of inspection that would break the chain? Only if a reasonable examination would have revealed the defect — hidden/latent defects do not break the chain

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3. pure economic loss: Muirhead v Industrial Tank Specialities [1986] QB 507

   1. facts: lobsters died in transit → sued the manufacturer of the storage containers for loss of future profit → PEL

   2. principle:  

      1. can recover:

         1. Consequential economic loss (lost profits) flowing from physical damage

         2. Physical damage to other property from defective products

      2. BUT no recovery for PEL — buyer seeking to recover for purely economic loss from defects in goods must look to their immediate vendor, not the ultimate manufacturer.

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4. pure economic loss: aswan engineering v ludpine

   1. facts: Waterproof compound (made by A) stored in plastic pails (made by B). Pails melted on Kuwait dockside in extreme heat → compound lost.

   2. If a bottle of wine was off-tasting, is the claim against the manufacturer of the bottle or the manufacturer of the cork because it did not function properly?" — the difficulty of separating things supplied together.—claim was pel

   3. principle: Was this damage to "other property" (the compound, damaged by the defective pails) — or was the whole thing one defective product supplied together?

      1. if same thing = PEL; if separate = potentially recoverable.

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The Orjula

Barcardi-Martini v Thomas Hardy Packaging

Finesse Group v Bryson Products [2013] EWHC 3273

type of breach

1. failure to warn: Hobbs (Farms) Ltd v Baxenden Chemical Co:

   1. facts: D sold self extinguishing foam insulation to C → D later realised that the desc was inaccurate

   2. principle: manufacturer's duty of care did not cease when the goods were sold and if it realised that an omission to warn past customers about potential injury might result in injury to them it must take reasonable steps to warn them, however lacking in negligence it was at the time the goods were sold.

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2. manufacturing defect: carrol v fearon

   1. facts: P injured when tyre on another car on motorway had a ‘tread strip’ → tyre exploded

   2. principle: once defect is established as arising in manufacturing, specific employee need not be identified.

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3. design defect:

CPA 1987—Strict liability regime

s1(2): "product" means any goods or electricity and includes a product comprised in another product (whether as a component part, raw material, or otherwise).4

s45(1): "goods" includes substances (natural or artificial, solid, liquid, gaseous or vapour form), growing crops, things comprised in land by attachment, ships, aircraft, vehicles.

Who is Liable? — s2(2) and s2(3)

Supplier — generally NOT liable (s2(3))—unless

1. Claimant requests the supplier to identify the s2(2) person;

2. Request made within a reasonable period after damage, when not reasonably practicable to identify the producer; AND

3. Supplier fails within a reasonable period to comply or identify their own supplier.

producer/importer/own brander—s2(2)

1. The producer: manufacturer; if not manufactured → person who won/abstracted it; if industrial process gave it its essential characteristics → person who carried out that process.

2. Capfi SA v Enedis: Electricity distributor who changed the voltage of electricity before supplying it to consumers = "producer" under Directive 85/374. BECAUSE the industrial process gives electricity its essential supply characteritistics

3. ford italia v zp: Sufficient if there is a mere coincidence in identifying details — no intent required. Ford Italia = own brander because its name was close enough to Ford Germany's branding to give rise to consumer confidence.

   1. own brander: Anyone who puts their name or trade mark on a product holding themselves out as the producer

s5(2) — no recovery for damage to product itself. ‘

s5(3) — no recovery for business property.

s5(4) — minimum £275 threshold for property damage.

strict liability regime cases

1. Computer Associates UK Ltd v Software Incubator Ltd: software not a product

   1. but in ECJ software incubator (2022): software supplied by electronic downloads under ‘goods’—also changes due to dir 2024/2853—-can highlight as a post brexit divergence

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2. vi v krone: newspaper advice—services=/= goods

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3. *A v National Blood Authority: Blood transfusions infected with Hepatitis C. At the time, the virus was known to exist but there was no test for it — nothing could have been done to prevent the defect.

   1. principle: the avoidability of the risk was not a relevant circumstance to be considered under s 3.

   2. Question was as to the expectation of safety of the product, not what steps D had taken to ensure the product was safe.—what would persons gen be entitled to expect as to the safety of the product

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4. Wilkes v DePuy International Ltd: defective hip replacement

   1. The safety that persons generally are entitled to expect is a question of law.

   2. The circumstances to be considered under s 3 should not be limited (no mandate in the legislation for this) – safety of necessity is a relative concept and a very fact-specific enquiry under s 3.

   3. Avoidability can be considered as part of the overall assessment under s 3.

   4. Did not accept a rigid classification of standard/non-standard as helpful in A v National Blood Authority.

   5. for design defects: Avoidability is a permissible factor in the s3 assessment — especially for standard products where the question is whether an alternative design would have been safer.—could an alternative design have been safer?).

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Pollard v Tesco Stores Ltd [2006] EWCA Civ 393: compliamce w regulatory standard is imp but only a factor to consider

SL—defences

Abouzaid v Mothercare: limited the application of the s.4(1)(e) defence: failure to discover a hazard does not suffice where the defect was, at the time, simple and theoretically discoverable without scientific or technical advancement needed.