Product liability

We have seen already how a Claimant must proceed in order to succeed in a negligence claim. The rules when it comes to defective products are slightly different. To show a duty of care in cases of product liability, we have to consider again the case of Donoghue –v- Stephenson. In order to show a duty of care, the Claimant must establish that the Defendant is the manufacturer, that the item causing damage is a product, that the Claimant is a consumer and the product reaches the consumer in the form in which it left the manufacturer with no reasonable possibility of immediate examination.

Case law has considered the definition of a manufacturer. It has extended the definition to include any persons who work in some way on a product before it reaches the consumer. This can include, for example, repairing products, installing products or even suppliers of products. A supplier can be within the scope of manufacturing for the purpose of the narrow rule. This was confirmed in Andrews –v- Hopkinson (1957) 1QB229. In this case, the supplier of a car was found to be liable because defective steering could easily have been discovered by a competent mechanic. The supplier was under a duty to check the steering because of the car’s age.

The case of Donoghue and Stephenson concerned a drink. However, the courts have confirmed the product will cover almost any item which is capable of causing damage. It is a very broad definition. Similarly, with regards to the term consumer, the courts have considered that anyone who the Defendant could reasonably have in mind as to be likely to be injured by the Defendant’s negligence can be considered as a consumer.

If there was a reasonable possibility of immediate examination then the manufacturer of the product will not owe a duty under the Donoghue and Stephenson rule. It does not necessarily mean the injured party would not be without a cause of action, but it would merely mean any claim would not be under the rule in Donoghue and Stephenson. See for example, the case of Kubah –v- Hollands (1937) 30907. This case shows that the mere opportunity or possibility of immediate examination will not be enough to exonerate a manufacturer. The manufacturer must believe that there is a likelihood of such an examination taking place.

Scope of Duty Under the Narrow Rule

In Murphy –v- Brentwood District Council, Lord Bridge said that liability under the Donoghue and Stephenson rule with respect to products would cover any injury to persons or damage to property done in the defect of the product. However, he said that if the only loss is the defective quality of the product itself, the production value of the product or the cost of repairing the defect or of replacing the product would not be covered by the duty of care.

In all cases, the duty of care and negligence is to exercise reasonable care. The standard of care expected of the reasonable person will be applied to anyone involved in the case. The court will consider the magnitude of foreseeable risk, the gravity of a personal injury and the costs and practicalities of precautions.

It can be difficult for a Claimant to prove that there was negligence in the manufacturing process. This is illustrated in the case of Daniels –v- R White & Sons 1939 258. Here, the court confirmed that the duty under Donoghue and Stephenson was only one to take reasonable care. The Claimant could not prove that such a standard had not been meet. In other cases, see for example, Grant –v- Australian Knitting Mills 1936 AC85, the privy counsel were willing to infer breaches from the fact that the Claimants were able to prove.

As with every other kind of negligence, you must prove that losses and causation must prove remoteness and causation in the usual way. Damages cannot be remote from the negligence of the Defendant and there must be causation between the Defendant’s negligence and the compensation sought. Similarly, the defences of consent exclusions liability and contributory negligence will continue to apply. For example, if a Claimant is aware of a defect in a product and nonetheless decided to continue with the use, then there is scope to argue that the Defendant consented to the risk.

Consumer Protection Act 1987

This Act provided a new cause of action to claim a negligence for those affected by product issues. Anyone who can establish the following can sue under the CPA 1987. Firstly, that they have suffered damage, secondly, that it was caused by a defect and thirdly, that the defect was in the product. The class of Claimant is, accordingly, very wide.

Damages can be defined by the CPA 1987. Claims for death and personal injury under the Act are without limit. Personal injury is defined as including any disease and any other impairment of anyone’s physical or mental condition, damage to private property must exceed £275 for a claim before it can be brought. Provided the loss or damage to private property exceeds £275 the full amount of the loss or damages is recoverable. Damage caused by a defective product of business property is outside the scope of the CPA 1987. The cost of repairing the defective product is not itself recoverable. This is regarded as pure economic loss.