Wednesday, December 13, 2006


Tuesday 12 December 2006

After a seasonal Christmas quiz we continued with our study of defective products.

Where the defect may be due to misuse or inadequate repair then the claimant may have problems of proof. In Evans v Triplex Glass (1936), the claimant bought a car fitted with a windscreen made by the defendants. One year later the windscreen shattered and injured passengers in the car. It was held that the claimant had to show it was more probable than not that the injury was due to faulty manufacture. He could not do this as it was possible that the cause of the defect in the window was faulty fitting.

The claimant may recover for personal injuries caused by the defective product and also property damage. He cannot recover damages if the product is simply worth less than he had hoped. What is meant by property damage here is damage to other property of the consumer. Pure economic loss is not recoverable, as you already know.

The burden of proof is on the claimant to show that the defendant has failed to exercise reasonable care. This must be done by showing that on the balance of probabilities the product was defective and that the defect arose whilst under the control of the defendant. The doctrine of res ipsa loquitur may be utilised by the claimant.

In response to European Community Directive 85/374 the CONSUMER PROTECTION ACT 1987 was created. The key provision is to be found in s2(1) of the Act:

“where any damage is caused wholly or partly by a defect in a product, every person to whom s2(2) below applies shall be liable for the damage.”

s2(2) contains a list of those who are primarily liable:

1. the producer (note the extended meaning given in s1(2) see below)
2. the own-brander, e.g. St Michael
3. the importer of a product into the EC.

A producer is defined in s1(2) as:

a. the manufacturer;
b. a person who wins or abstracts a product which has not been manufactured;
c. a person who carries out a process, e.g. canning vegetables.

A supplier, as opposed to the manufacturer, may be liable if four requirements can be met:

1. the consumer must ask the supplier to identify the producer
2. within a reasonable time of the damage
3. it is impracticable for the consumer to identify the producer
4. the supplier fails to comply with the request within a reasonable time

Most retailers will not incur strict liability in tort if they keep accurate records of their suppliers; they are already strictly liable in contract by virtue of the SGA 1979.

There is no definition of a consumer, but any person who suffers damage is entitled to proceed against the producer (s2(2)). There is a lower limit of £275 in respect of damage to property (s5(4)).

In addition where property damage is claimed, the property in question must be of a type ordinarily intended for private use, occupation or consumption and so intended by the claimant at the time it is lost or damaged (s5(3)). There is no liability for damage to the defective product itself nor to any product which is supplied with the defective component product comprised in it (s5(2)).

A product is defective if its safety is not such as persons generally are entitled to expect (s3(1)). The emphasis is on safety and the Act has no application to safe but useless products.

A number of factors may be taken into account in determining what persons generally are entitled to expect (s3(2)). These include:

Accepted safety standards at the time the product was put into circulation will therefore be taken into account.

The Act provides several defences in s4:

TIME LIMITS - within three years of the date when the damage occurred, or three years from the date of the claimant’s knowledge of the harm. No action may be brought in respect of a defective product more than ten years after it was put into circulation.

So the law of tort now embraces two distinct actions:

1. liability in negligence
2. strict liability under the Consumer Protection Act.

For some these actions will represent alternatives, but for others the Act will not provide a potential claim. For example, where the damage to property is less than £275 and in every case where the property damaged is not for private use (for example an office computer). If the producer is a non-business person, for example a grandfather who makes a toy for his grandchildren as a gift, then the Act will not apply, but a claim in the tort of negligence could still arise.

We then turned to the tort of BREACH OF A STATUTORY DUTY. Where a person is in breach of a statutory duty imposed on him and another person suffers damage as a result, there may be an action in tort by the person injured.

However, not all breaches of statutory duty will give rise to such an action. The action has played a strong part in industrial safety, but attempts in other areas have been less successful.

To succeed the claimant must prove:

(a) the statutory duty in question gives rise to an action
(b) duty is owed to the claimant
(c) duty was broken
(d) damaged was caused by the breach

Whether the statute give rise to an action for damages is said to depend on the intention of Parliament discovered from the interpretation of the statute. The statute may give express guidance by either precluding an action or by specifically stating that there shall be one. However this is rare and it is usually left to the court to determine a question to which Parliament gave no direct consideration.

The modern statement was given by Lord Diplock in Lonrho v Shell Petroleum (1982), confirming the earlier decision of Bishop of Rochester v Bridges (1831). He said that IF AN ACT CREATES AN OBLIGATION AND ENFORCES PERFORMANCE IN A SPECIFIED MANNER, THEN PERFORMANCE CANNOT BE ENFORCED IN ANY OTHER MANNER. In LONRHO, a sanctions order made the supply of oil to Rhodesia a criminal offence. Some companies were in breach of this order, but the House of Lords held that no civil action arose on behalf of the claimant, whose business interests suffered as a result of the continuation of the regime in Rhodesia. Thus an initial presumption arises and if; for example there was a criminal penalty for breach, then no action in tort would exist.

There are two exceptions to this presumption:

  1. if the obligation is imposed for the benefit of a particular class of individuals

  2. or if the statute creates a public right and the claimant has suffered special damage.

In CBS Songs Ltd v Amstrad Consumer Electronics Plc (1988) AC 1013, the claimant alleged that the defendants had advertised twin deck tape recorders in such a way as to incite members of the public to commit a criminal offence in breach of the COPYRIGHT ACT 1956. The claimant sought an injunction to restrain the defendants from selling the machines. This was refused as the claimant did not come within either of the two exceptions to the initial presumption.

The initial question is, therefore, whether the statutory provision provides a remedy for its breach. In Groves v Lord Wimborne (1898), the defendants were subject to a fine of £100 for breach of statutory duty in failing to fence factory machinery. Part of the fine was payable to the claimant at the discretion of the Secretary of State. However, the claimant was held to have an action for damages as there was no guarantee that he would receive any of the fine and Parliament cannot have intended that a workman be deprived of the opportunity to seek proper compensation for the injuries he had suffered.

We will continue with this after the Christmas period. The next class will be on Tuesday 9 January 2007.

I did set a piece of work, as below. Hand it in on the first evening back.

Fred was driving his Land Rover round an obstacle course at the Shires County Show, when it ran over a metal tent peg left on the course. This caused a tyre to burst and the vehicle turned over injuring Fred badly. Fred’s secretary Gay, who was in the passenger seat, was thrown clear and physically uninjured but she suffered nervous shock. Fred had previously told Gay that accompanying him could be dangerous. Gay’s mother Hazel was in the beer tent at the time of the incident but hearing the explosion she suffered nervous shock. The incident was shown on the television news. Fred’s wife Ivy saw this and she too suffered nervous shock. Shires County Council own the showground and organise the show.

Advise Gay, Hazel and Ivy who wish to sue Shires County Council in negligence.

Wednesday, December 06, 2006


Tuesday 5 December 2006

We continued from last time with a discussion on occupiers’ liability, by looking at the defences of volenti and contributory negligence.

Section 2(5) LA 1957 provides that while knowledge of danger does not, of itself, deprive the visitor of a remedy, the occupier will not be liable in respect of risks willingly accepted as his by the visitor - volenti.

Although the Act does not specifically mention contributory negligence, it is implicit in s2(3) that damages may be reduced where the visitor fails to take reasonable care for his own safety.

By s2(1) the occupier can extend, exclude, restrict or modify the extent of his liability by a contract term or properly worded notice, in so far as he is “free to do so”.

Limitations on the occupier’s freedom to exclude are as follows:

Here’s an example:

Bert is a sales rep, and as a part of his job must visit building sites. He enters a site occupied by Alan, who has placed a notice on the gate - “Danger, building sites are dangerous places. The occupier accepts no liability for injuries suffered by visitors or for damage to their property.” Whilst on the site a wall collapses, causing injury to Bert and damaging his car.

The notice could take effect in 3 ways;

  1. A warning discharging the duty of care. It fails to enable Bert to take reasonable care for his own safety, and will not have the effect of discharging the duty.

  2. Exclude the common duty of care. UCTA restricts the ability to exclude liability where premises are occupied for business purposes. The notice will fail in respect of the injury, the damage to the car would be subject to a test of reasonableness.

  3. Bert was volenti to the risk. UCTA will prevent this claim; as Bert had to enter as part of his job he lacked the necessary voluntariness necessary for the defence.

So far as the OCCUPIERS’ LIABILITY ACT 1984 is concerned, it is firstly wise to remember that the common law was traditionally hostile to trespassers. In Addie v Dumbreck (1929), the House of Lords held that no duty of care was owed to a trespasser. This remained the law until British Railways Board v Herrington (1972). The House of Lords held that an occupier owed a duty of ‘common humanity’ to a trespasser known to be on the land, in this case a child. From this case until the passing of the 1984 Act there was not one successful claimant. The case was to lead to the formation of the 1984 Act.

The 1984 Act applies to persons other than visitors, s1(1)(a):

• Trespassers
• Persons entering land under an access agreement or entering National Parks
• Persons lawfully exercising a private right of way. Note that the duty is not owed to persons exercising public rights of way or persons using a publicly maintained highway (s1(7)). These latter persons are protected against the consequences of misfeasance by common law principles.

There is no case law on any group other than trespassers.

The duty owed is owed if the occupier:

  1. is aware of the danger or has reasonable grounds to believe it exists;

  2. knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger; and

  3. the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

The duty owed covers only death and personal injuries, not damage to property: s1(8). This is an important point for examination time.

The duty can be discharged by an effective warning: s1(5), but the wording is not the same as the 1957 Act, it is the taking of steps to discourage the person other than a visitor from taking the risk. This could also, in the appropriate circumstances, discharge the duty of care.

Tomlinson v Congleton BC (2002): a young man dived head first into a shallow lake in a country park, and suffered serious head injuries when he struck his head. It was accepted that the claimant was a trespasser to the lake because signs made it clear that swimming in the lake was not permitted.

The first question for consideration was whether there was in the lake a danger due to the state of the premises or to things done or omitted to be done on them (s1(1)(a) OLA 1984). It was found that there was nothing about the lake which made it more dangerous than any other stretch of open water, and that the council had not made the lake more dangerous by permitting activities such as boating which would put the trespasser at risk. Any risk resulted from the activities of the trespasser on the lake, and not from the state of the premises.

The second issue was the nature of the duty. The House of Lords made it clear that the duty under OLA 1984 was intended to be no lesser duty, as to both incidence and scope, than the duty to any lawful visitor under OLA 1957, and that in the case of a lawful visitor, one starts with the assumption that there is a duty Whereas in the case of a trespasser one starts from the assumption that there is none.

Donoghue v Folkestone Properties [2003]: a trespasser went swimming in a harbour late one evening in midwinter, and was injured by an underwater obstacle. Allowing the defendant’s appeal, Lord Phillips MR said they owed no duty of care to the claimant. They knew of the obstruction, and may have known that he was in the habit of swimming in the harbour during the summer, but they had no reasonable grounds for knowing that he or anyone else would come into the vicinity of the danger late at night in midwinter.

Ratcliffe v McConell [1999]: an adult dives into a swimming pool at 2.30 am on a December morning, suffering severe head injuries, as the pool had been partly drained for the winter. IN applying s1(3) the judge identified the relevant danger as the risk of a diver hitting his head on the bottom of the pool. This was a danger common to all pools, so there was no need to specifically warn of it. Additionally, he was volenti.

Whether such a warning is effective will depend on the (i) age of the entrant, the (ii) character of entry and the (iii) nature of the risk. A warning notice or an oral warning would normally be sufficient for adults but, in the case of children, obstacles to entry may have to be erected.

A decision pre Tomlinson with regard to a child trespasser can be found in Scott & Swainger v Associated British Ports [2000]: in separate incidents, two teenage boys were badly injured while “train-surfing” on the defendant’s premises, and brought claims under the Occupiers' Liability Act 1984. The trial judge found facts that the boys would not have been deterred by the provision of a fence, and that they were fully aware of the risks they were taking. The Court of Appeal agreed: since the absence of a fence was not the cause of claimant’s injuries, their claim was bound to fail.

There have been two important decisions post Tomlinson regarding child trespassers:

Young v Kent County Council [2005]: the claimant, who was 12 years of age at the date of the accident, had climbed onto the roof of a youth club on the premises of a school. Whilst there the claimant fell through a skylight, which was brittle, suffering injuries.

The Defendants contended that they were not liable under the Occupiers Liability Act 1984.

The Court finding for the claimant held that the state of the premises had been inherently dangerous to a child particularly given the brittle nature of the skylight. That the danger posed a risk of injury to a non-visitor. There was a duty to protect children. The area of danger was a known meeting place for children. Whilst the claimant had known that it was wrong to go onto the roof and had probably known that it was dangerous he was probably unaware of the fragility of the skylight. The Defendants would or should have known that children were likely to climb the flue onto the roof and there was a low cost solution to the problem. Any school should have carried out a risk assessment and the failure to fence the area off had been negligent. There was a duty of care to ensure that non-visitors did not get onto the roof and there had been a breach of duty under the Occupiers Liability Act 1984. However, it was found that the claimant was as much to blame as the Defendants and his contributory negligence was assessed at 50%.

It was stated that if the claimant had not been a child he would have recovered nothing; see Tomlinson v Congleton Borough Council (2004) (above).

Keown v Coventry Healthcare [2006]: an 11-year-old boy entered the grounds of a hospital (which were open to the public) and began (as other children sometimes did) to climb the underside of a fire escape. He fell from a height of about 10 metres and suffered brain damage. It was accepted that he was a trespasser as he had gone beyond the scope of his implied permission, and he sued under the Occupiers’ Liability Act 1984. The Court of Appeal, reversing the trial judge, said the fire escape could not be regarded as “a danger due to the state of the premises” – it was dangerous only because the claimant was misusing it, and (obiter) it would not be reasonable anyway to expect the NHS to offer protection against a danger such as this. Even if the fire escape could be regarded as an allurement, safe premises do not become unsafe simply because they are attractive.

Section 1(6) provides that volenti is a defence. In the case of trespassers an objective test of agreement is applied with the result that an adult who enters premises with knowledge of the risk of harm will be considered to be volens to the risk.

Remaining with building, we turned to the position of vendors and lessors. At common law a vendor or lessor who created a defect on his premises and then sold or let them was immune from an action in negligence. Because of the doctrine of caveat emptor there was also little chance of the purchaser or tenant succeeding in a contract action.

Section 3 DEFECTIVE PREMISES ACT 1972 was intended to abolish the builder-vendor’s and builder-lessor’s negligence immunity. The wording of the section states that any duty of care owed by virtue of work of “construction, repair, maintenance or demolition” in relation to the premises, shall not be abated by the subsequent disposal of the premises by the person who owed the duty. This does nothing more than restate the common law position.

Of more importance is s4 DPA 1972. It places a statutory duty on landlords in connection with repair of the premises. The landlord must be under an obligation to the tenant for the maintenance or repair of the premises, or an express or implied right or power to enter and carry out maintenance.

This can arise from the tenancy agreement itself; or be implied in the lease by virtue of statutory provisions, such as those in s11 of the LANDLORD AND TENANT ACT 1985 (i.e. a non-excludable obligation to repair the structure and installation for sanitation, the supply of water, gas and electricity to premises which are let for a period of less than seven years).

If the landlord knows or ought to know of the defect he owes a duty of care to all persons who might reasonably be expected to be affected by the defect. The duty is owed to the tenant, residents, visitors and trespassers (probably), neighbours and even passers-by, if the lack of repair threatens the people using the public highway. So, the duty is owed to everyone who is affected by the defect.

An example: Peter lets a house on a monthly tenancy to Paul. Following high winds the chimney stack becomes unsafe. Peter tells Paul, but he takes no action. The chimney later collapses, with the following consequences:

So far as a builders is concerned, it includes sub-contractors, development companies, architects, surveyors and local authorities.

Persons affected by the dangerous condition of the premises could include the owner, family, guests, neighbours, and passers-by if the building is dangerous. Again, everyone who may be affected by the defect.

If the building is merely defective then the damage will be monetary in nature and only a person with a property interest may sue. Recent cases suggest that successful claims for pure economic loss will be limited to those actions which are based on negligent advice not negligent building work. (See below.)

Section 1 imposes on builders, sub-contractors, architects and other professional persons a 3 part duty:

1. work will be done in a workmanlike manner
2. proper materials will be used
3. house will be fit for human habitation.

The duty applies only to dwellings (but does not apply where the dwelling is protected by an approved scheme), and is owed to the person who orders the building and every else who acquires an interest. Thus, the doctrine of privity of contract does not apply. Liability is strict.

Limitation periods have caused problems in the case of defective buildings as defects often take many years to manifest themselves. The LATENT DAMAGE ACT 1986 was passed to tackle this problem. The Act applies to actions for negligence where the claim does not include personal injuries. The question of limitation is approached in three stages:

  1. primary limitation period runs for six years from the date when the damage occurs.

  2. an alternative limitation period runs for three years from the earliest date on which the claimant or his predecessor in title first knew or could have known of the facts required to commence proceedings.

  3. a ‘long-stop” provision that no action may be commenced more than 15 years after the breach of duty which causes the damage.

And now for something completely different: DEFECTIVE PRODUCTS. Another popular examination topic.

Where a product is manufactured and put into circulation, liability is primarily governed by the law of contract if the product is not of the standard expected. So we are not concenre dwith whether the property concerned is any good, for that is contractual. We are concerned with a product that is DANGEROUS.

Manufacturer ∞∞∞ Wholesaler ∞∞∞ Retailer ∞∞∞ Purchaser∞∞∞ Donee

Problems arise where the chain of contracts breaks down because of an exclusion clause or insolvency, or where the ultimate user has no contract, i.e. the donee.

Prior to 1932 privity of contract ruled out claims; developments in the law of tort were limited to goods which could be classified as dangerous (as opposed to defective) in themselves, or where the particular danger was known to the transferor. It was only with the majority decision of the House of Lords in Donoghue v Stevenson (1932) that any general conception of tortious liability in negligence for products arose.

The law of negligence, since 1932, has given protection to the ultimate consumer of a product where the product causes physical damage because of a defect attributable to negligent manufacture. Tort law will not give a remedy where the product is merely defective (i.e. not of the quality expected) and does not cause physical damage.

Pressure from the European Community led to the CONSUMER PROTECTION ACT 1987 which introduces a strict liability regime for defective products. This is in addition to common law rules. This comes next week.

The narrow rule in Donoghue v Stevenson destroyed the “contract fallacy”; a person who has contractual liabilities can at the same time have liabilities in tort to persons who were not parties to the contract. Lord Atkin laid down what is known as the “narrow rule” which states the nature of manufacturer’s liability in the tort of negligence:

“A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

The quotation sets out everything required for an action.

In brief, and more memorable: “the manufacturer of a product owes a duty of care to the ultimate consumer.”

The duty is owed by a manufacturer, which is anyone responsible for putting into circulation a product which is not reasonably safe. This includes retailers, wholesalers, repairers, assemblers, and those who hire or lease products.

The rule applies only to products, not services. This covers food and drink (Donoghue v Stevenson), clothing, for example woollen undergarments, e.g. Grant v Australian Knitting Mills (1936) and applies to all manufactured products such as lifts, motor vehicles and repairs done to them. The rule also applies to the container and any packaging in which the goods are supplied. Think of a McDonalds Happy Meal. It contains food in the form of a burger and fries, a toy, and a drink. It comes in a cardboard box. All are covered by the rule.

The duty is owed to the ultimate consumer or user of the goods. This includes purchasers, immediate donees, passengers in a vehicle, commercial users, borrowers and mere bystanders. In Stennett v Hancock And Peters (1939) the claimant, a pedestrian, was hit on the leg by part of a wheel on the defendant’s lorry which flew off as it was being driven along the road. The defendants who had repaired the wheel only a short time before the accident were held to be manufacturers. The repair had been carried out negligently and the claimant was a consumer, so the action succeeded.

We will continue this next week.

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