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.

Check with your nearest OSH office of the Labour Department for full information. We have got to take this seriously from now on, as we kill and maim too many people every day on farms and court proceedings can be very costly.
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