February Lecture Seminar Law of Tort Donal Nolan Product Liability - PDF

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					14 February 2009                                 Law of Tort                                    Donal Nolan
Lecture/Seminar                                                                   Product Liability/Damages

                         LECTURE 1/PRODUCT LIABILITY

    Please bring a copy of the Consumer Protection Act 1987 to the lecture and the
                                seminar on this topic.

Mullis and Oliphant, Torts (3rd ed, 2003), ch 14
Winfield & Jolowicz on Tort (17th ed, 2006), ch 10

1) Liability in negligence
(a) Continuing relevance of negligence
(i) Damage to property not intended for private use
(ii) Damage caused by a product that was not supplied by D in the course of business
(iii) Claims for property damage of less than £275

(b) Donoghue v Stevenson
Donoghue v Stevenson [1932] AC 562

(c) Actionable damage
(i) Pure economic loss not recoverable
Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] 1 All ER 791

(ii) “Complex chattels”

(d) Manufacturing defects
Grant v Australian Knitting Mills [1936] AC 85

(e) Design defects
A product has a design defect if (1) the danger the product poses outweighs its utility; or (2) the risk of
harm posed by the product could have been avoided or reduced by the adoption of a feasible alternative design.

2) Liability under the Consumer Protection Act 1987
EC Directive on Liability for Defective Products (85/374/EEC) (OJ L 210/29, 7.8.85)
Consumer Protection Act 1987, Part I, ss 45, 46
EC Commission v United Kingdom C-300/95 [1997] All ER (EC) 481 (ECJ)
A v National Blood Authority [2001] 3 All ER 289, paras 2-22, 31-81
Abouzaid v Mothercare (UK) Ltd (2001) The Times, 20 February

(a) Products (s 1(2), s 45(1))
(i) “[A]ny goods or electricity”
(ii) Human body products
(iii) Products that convey information

(b) Who can be liable
(i) Producers (s 2(2)(a), 1(2))
(ii) Apparent producers (s 2(2)(b))
(iii) Importers into the EEA (s 2(2)(c))
(iv) Suppliers (s 2(3), s 46)
14 February 2009                           Law of Tort                                 Donal Nolan
Lecture/Seminar                                                          Product Liability/Damages

(c) Actionable damage (s 5)
“[D]eath or personal injury or any loss of or damage to any property (including land)” (s

(i) No liability for property damage of less than £275 (s 5(4))
(ii) No liability for damage to the defective product itself, nor for damage to a product with
the defective product comprised in it (s 5(2))
(iii) No liability for damage to property not intended for private use (s 5(3))

(d) The test of defectiveness (s 3)
“There is a defect in a product ... if the safety of the product is not such as persons generally
are entitled to expect” (s 3(1))

(i) Timing of the assessment (s 3(2))
(ii) Manufacturing defects
(iii) Design defects
(iv) Warnings (s 3(2)(a))

(e) Defences
(i) Compliance with a legislative requirement (s 4(1)(a))
(ii) Product not supplied (s 4(1)(b), s 46)
(iii) Non-commercial production or supply (s 4(1)(c))
(iv) Subsequent defect (s 4(1)(d), s 4(2))
(v) Development risks (s 4(1)(e))
“[I]t shall be a defence to show ... that the state of scientific and technical knowledge at the
relevant time was not such that a producer of products of the same description as the
product in question might be expected to have discovered the defect if it had existed in his
products while they were under his control.”

(vi) Component manufacturers (s 1(2), s 4(1)(f))
14 February 2009                          Law of Tort                                Donal Nolan
Lecture/Seminar                                                        Product Liability/Damages

                      SEMINAR 1/PRODUCT LIABILITY
1) Alvin suffers serious internal injuries after swallowing a chicken bone in a chicken
sandwich. He was given the sandwich without charge when he visited a mobile soup kitchen
operated by a charitable organisation, Broth-for-Free. The sandwich was originally made by
an employee of Cafés-R-Us. Cafés-R-Us give away their unsold sandwiches to Broth-for-
Free. Seeing that some of Alvin’s friends are angry at what has happened, Dave and Ewan,
who run the soup kitchen, slide shut a glass screen fitted into the side of the van from which
they dispense the food. One of Alvin’s friends picks up a brick and throws it at the screen,
which shatters. He runs off. A shard of glass from the screen lodges in Dave’s eye, and
Ewan’s new jacket, which cost £75, is badly torn. After passing through the screen, the
brick makes a large dent in the far wall of the van. The van was recently donated to Broth-
for-Free by Fred, who had installed the screen. The screen was manufactured by Glass
Solutions. Glass Solutions do not make their screens shatterproof because doing so would
mean substantially increasing the price.

Advise the parties.

2) Hogwood School, an independent school, runs a cake sale. Pupils are encouraged to bring
in cakes for the school to sell to other pupils and parents, with all money raised going to the
school in order to buy new computers. Griselda, a pupil’s parent, makes a cake using a
recipe in a book written by Tom and published by Rex Ltd. Due to a misprint, the recipe
suggests the use of buckberries rather than blackberries. Buckberries are mildly poisonous
when cooked. Griselda’s cake is bought at the sale by Augusta. Augusta’s brother, Frederick,
eats some of it and gives some to his champion racing pigeon worth £350. Frederick
becomes ill and the pigeon dies. Emily brings in a cake she has bought from Superstore plc
labeled ‘Superstore’s Angel Cake’. The cake is in fact manufactured by Cook Ltd. The cake
contains pink food colouring which is known to be poisonous to some individuals. Imogen
buys and eats it, and is severely ill as a result.

Advise the parties.
14 February 2009                           Law of Tort                              Donal Nolan
Lecture/Seminar                                                       Product Liability/Damages

Please bring a copy of the Fatal Accidents Act 1976 to the lecture and the seminar on
                                      this topic.

Mullis and Oliphant, Torts (3rd ed, 2003), 358-398
Winfield & Jolowicz on Tort (17th ed, 2006), 935-988, ch 23

1) Damages for Personal Injury
(a) The lump sum rule
Supreme Court Act 1981, s 32A
Damages Act 1996, s 2

(b) Damages for non-pecuniary loss
Administration of Justice Act 1982, s 1(1)(b)
West & Son v Sheppard [1964] AC 326
Lim Poh Choo v Camden & Islington AHA [1980] AC 174
Heil v Rankin [2000] 3 All ER 138

Law Commission No. 257, Damages for Personal Injury: Non-Pecuniary Loss (1999)

(c) Damages for pecuniary loss
Law Reform (Personal Injuries) Act 1948, s 2(4)
Damages Act 1996, s 1
Health and Social Care (Community Health and Standards) Act 2003, s 150
Pickett v British Rail Engineering [1980] AC 136
Daly v General Steam Navigation Co [1980] 3 All ER 696
Wells v Wells [1998] 3 WLR 329

(d) Collateral benefits
Social Security (Recovery of Benefits) Act 1997
Bradburn v Great Western Railway Co (1874) LR 10 Ex 1
Parry v Cleaver [1970] AC 1
Hunt v Severs [1994] 2 AC 350
Gaca v Pirelli General plc [2004] 3 All ER 348

Law Commission No. 262, Damages for Personal Injury: Medical, Nursing and Other Expenses;
Collateral Benefits (1999)

2) Damages for Death
(a) The effect of death on existing causes of action
Law Reform (Miscellaneous Provisions) Act 1934, s 1

(b) Causes of action arising out of death
Fatal Accidents Act 1976 (nb amendments made by the Civil Partnership Act 2004, s 83)
Burgess v Florence Nightingale Hospital [1955] 1 All ER 511
Davies v Taylor [1974] AC 207
14 February 2009                       Law of Tort                       Donal Nolan
Lecture/Seminar                                            Product Liability/Damages

Stanley v Saddique [1992] QB 1
Hayden v Hayden [1992] 1 WLR 986
H v S [2002] 3 WLR 1179

Law Commission No. 263, Claims for Wrongful Death (1999)
14 February 2009                          Law of Tort                                Donal Nolan
Lecture/Seminar                                                        Product Liability/Damages

1) Alan, who is aged 45, and married with one child (aged 11) is injured in a road accident
through the admitted negligence of the driver. He loses an arm and suffers serious brain
damage. Before the accident Alan was a company director earning £100,000 per annum
(gross) and was a gifted violinist. His life expectancy is now reduced to five years. He is
entitled to receive his salary for the first year following the accident. His employment will
then be terminated. He will then receive a disability pension equivalent to half his salary for
a further year following the accident. After this time he will claim social security benefits.
Alan has a private personal injury insurance policy which pays him £50,000. Alan’s medical
expenses have been met by private health insurance paid for by his employer. This
insurance lasts for one year following the accident and after this period he will be treated on
the National Health Service. Alan’s wife arranges for additional private homeopathic

Advise Alan.

2) An explosion at a factory is caused by the negligence of the factory owner, Xavier. Anne,
a young housewife who was passing by the factory, dies instantly. She leaves a widower,
Charles, and their four-year-old daughter, Doris. The commercial cost of a full time nanny
to fulfill all of Anne’s household functions is estimated at £1,000 per month. For the first
six months after Anne’s death Xavier looks after Doris out of a sense of guilt. He is an
excellent carer. After this period, and before the trial of the action, Charles’ mother moves
into the family home, and looks after Doris.

Fabrice, an employee working at the factory, dies in the explosion. He was aged 30 and was
earning £20,000 per annum (gross). He was unmarried but had lived for three years with
Kelly. Also in the household were their young son, Mike, and Rob, Kelly’s son by a previous
relationship. Kelly received £5,000 from a life insurance policy taken out by Xavier for the
benefit of his employees.

Advise Charles, Doris, Kelly, Mike and Rob.

3) A road accident is caused by the negligence of Martin. His car collides head-on with
another car, driven by Nancy. Martin and Nancy are killed instantly. Martin’s son, Oliver,
aged eleven, is a passenger in Martin’s car. He suffers serious brain damage and severe
injuries to his back and his neck. As a result, he will never work, and he will need nursing
care for the rest of his life. Martin’s wife Paula gives up her job to care for him. Although
Oliver has not yet lost the use of his legs, there is a 40 per cent chance that his legs will
become permanently paralysed. At the time of her death, Nancy had been looking after her
daughter, Tracey, aged five, single-handedly. After the crash, Tracey moves in with her
father, Umberto, who gives up his job to look after her. Umberto and Nancy were still
married at the time of her death, but had separated two years earlier. They had recently been
considering moving in together again.

Advise the parties.