Product liability

key points of A v National Blood Authority?

• distinction between standard and non-standard products

• fault-related factors e.g. the avoidability of risk and cost of precautions are not circumstances that affect the level of safety the public is entitled to expect

A v National Blood Authority: the development of risks defence (s.4(1)(e) CPA 1987) does NOT apply where _________________________________

the risk is known, even if the defect in individual products cannot be detected

facts of A v National Blood Authority?

• Cs were infected with Hepatitis C virus from blood transfusions organised by D

• there was a risk of the blood containing the virus, but it was impossible to avoid the risk:

  > when the earlies cases of transfusion occurred, the virus had not yet been identified

  > in all the cases no tests available at the time could detect the presence of the virus

• Cs sued under CPA 1987

A v National Blood Authority: is liability defect-based or fault-based?

defect-based - a producer’s liability is irrespective of fault

the onus of proof is on ____ to prove that the product is defective

Cs (A v National Blood Authority)

some products have harmful characteristics but no complaint about them can be made - if they are ________________________________

obviously dangerous by virtue of their very nature or intended use (A v National Blood Authority)

A v National Blood Authority: if the product was not intended to be dangerous, then there must be consideration of ____________________________________

whether it was safe, and the level of safety to be legitimately expected

are non-standard products automatically defective?

NO

what was held in A v National Blood Authority?

• the legit expectation of the public is NOT that tests will have been carried out or precautions adopted

  > their legit expectation is as to the safeness of the product

• the infected bags of blood were non-standard products

unknown risks are unlikely to qualify by way of defence within art.6 BUT may qualify for _______

art.7(e)

known risks do not qualify within art,7(e), even if __________________________

unavoidable in the particular product

(they may qualify within art.6 if fully known and socially acceptable)

key point of Wilkes v Depuy?

the distinction between standard and non-standard products should be rejected

facts of Wilkes v Depuy?

• C had undergone surgery to insert an artificial left hip joint made of metal components manufactured by D

• C was not warned about the associated risks of the hip implant

• the design caused a fracture of the artificial joint

• C sued D under s.3 CPA 1987

what was held in Wilkes v Depuy?

• the C-stem did not fall below the safety persons were generally entitled to expect at the time it was put into circulation and thus it was NOT defective

Wilkes v Depuy: is whether a particular risk was avoidable determinative of the issue of defect?

NO

• however, the extent to which a risk could be eliminated or mitigated might be a circumstance bearing upon the issue of the level of safety that the public generally was entitled to expect

Wilkes v Depuy: the fact that there was a ___________________________ did NOT provide an automatic defence

learned intermediary

Wilkes v Depuy: in respect of a product such as prosthesis, in respect of which there was no obligation upon a producer to give any info directly to the patient, the fact that there was a learned intermediary _______________________

was relevant for the purposes of s.3 CPA 1987

a person undergoing spinal surgery with a 1% chance of being rendered paraplegic as a result due to non-negligent complication of which he is appropriately warned, is NOT entitled to _________________________

expect it not to occur

Wilkes v Depuy: is avoidability of the risk relevant?

• it depends - yes in an approp case

• BUT it will not be considered in a vacuum

Wilkes v Depuy: what is a standard vs a non-standard product?

• standard: a product which performs as the producer intends

• non-standard: a product which is different, obviously because it is deficient or inferior in terms of safety, from the standard product

key point of Tesco Stores v Pollard?

a design standard that is approved by a public authority or adopted by the manufacturer does not fix the level of safety that can be legitimately expected be persons

facts of Tesco Stores v Pollard?

• C was a toddler who swallowed dishwashing powder from a plastic bottle from Tesco

• C sued Tesco and the producer of the bottle under CPA 9187 for the defective child resistant cap

  > the amount of torque required to unscrew the cap was not enough

what was held in Tesco Stores v Pollard?

• foreseeability must assume that the child’s parents will in the home take steps to prevent his having access to the bottle

• people were generally entitled to expect that the bottle would be more difficult to open than if it had an ordinary screwtop, which it was

• NO BREACH of 1987 Act

what was held in C-503/13?

art.6(1) CD 85/375/EEC must be interpreted as meaning that, where it is found that products belonging to the same group e.g. pacemakers and defibrillators have a potential defect, such products may be classified as defective without there being any need to establish that that product ahs such a defect

key point of Grant v Australian Knitting Mills?

• manufacturers are liable in negligence for injury caused to the ultimate consumer by latent defects in their products

• the mere unproven possibility of tampering by a 3rd party between the time at which a product was shipped by a manufacturer and the time at which it reached the consumer does not erase the duty of care of the manufacturer to the ultimate consumer in relation to latent defects