Tort 8 Particular statutory regimes: strict liability
Terms in this set (66)
strict liability statue examples
Consumer Protection Act 1987 and the Animals Act 1971 can both involve the concept of strict liability: liability where the question of 'fault' does not arise.
background to the Consumer Protection Act 1987
Prior to the Act, a person injured by a defective product would have to bring an action in negligence and establish that the D owed him or her a DOC, which had been breached and caused loss which was not too remote. The classic case is that of Donoghue v Stevenson 
NOTE: CL of negligence(Donoghue and others) may still be of assistance. The duty at CL extends beyond the producer/consumer relationship to include repairers, fitters, erectors, assemblers and even distributors.
Mason v Williams & Williams Ltd 
pre CPA cf Donoghue
employers, if they buy reputable tools from reputable people who make them, are not bound to set up examinations, either before issuing a tool or after it has been in use for days or weeks or even months, unless there is something which calls their attention to the suggestion that there is something wrong. Employers have to act as reasonable people, they have to take reasonable care; but if they buy their tools from well-known makers, such as the second Ds are, they are entitled to assume that the tools will be proper for the purposes for which both sides intended them to be used, and not require daily, weekly or monthly inspection to see if in fact all is well.
Grant v Australian Knitting Mills Ltd 
plaintiff, contracted dermatitis as a result of wearing woolen underpants which had been manufactured by the Ds (Australian Knitting Mills Ltd). The garment in question contained an excess of sulphite. Upon purchase, he wore them for one entire week without washing them beforehand.
held that the defendants were liable to the plaintiff.
problems relating to defective products
Donoghue v Stevenson
court emphasised that the manufacturer would only be liable if the court was satisfied that the defect was not due to the fault of another party in the supply chain. A reasonable possibility of intermediate examination or interference will lead the court to reject the claim
Evans v Triplex Safety Glass Co Ltd  1 All ER 283 and Andrews v Hopkinson
Hurley v Dyke 
cf Donoghue v Stevenson
seller could, subject to the Unfair Contract Terms Act 1977, force a buyer to take responsibility for the safety of the product by marking the product 'as seen and with all its faults':
Evans v Triplex Safety Glass Co Ltd 
claimant bought a car which had been fitted with a windscreen of 'Triplex Toughened
Safety Glass'. The claimant was injured when the windscreen shattered while he was driving
manufacturers of the windscreen were not liable because too much time had lapsed between the manufacture of the windscreen and the incident. The windscreen had been in place for over a year. In addition it may have shattered for other reasons such as poor fitting by the car makers.
importance of causation
Andrews v Hopkinson
plaintiff wished to acquire a second-hand car from the D, who carried on the business of a dealer in second-hand cars. Before entering into a hire-purchase agreement with a finance company to whom the D sold the second-hand car chosen by the plaintiff, the D said: " . It's a good little bus, I would stake my life on it. You will have no trouble with it." . He undertook to arrange for an engineer's report to be prepared for submission to the proposed insurers. The engineer's inspection included the testing of the steering wheel for excessive play, but he did not jack up the car upon being told that the plaintiff had effected an insurance with a different company and did not carry out a full inspection or complete his report. While the car was being driven by the plaintiff along a main road it suddenly swerved towards a lorry and collided with it causing the plaintiff serious injuries. An examination of the car disclosed that the cause of the accident was the failure of the drag-link joint of the steering mechanism owing to the badly worn condition of the socket and the ball pin.
, (1) there was a breach of the express warranty that the car was in good condition and reasonably safe and fit for use on the public highway; the warranty was enforceable even though the plaintiff bought the motor-car from a finance company; the whole of the damages could fairly be considered as loss directly and naturally resulting in the ordinary course of events from the breach of warranty and so recoverable as damages for breach; (2) the D was also guilty of negligence in failing to make the necessary examination, or at least in failing to warn the plaintiff that no such examination had been carried out;
difficult to detect, but have potentially very serious consequences as they will affect every product: see the Thalidomide litigation. In the 1970s, calls began to appear for stricter liability for manufacturers of defective products. Growing pressure for reform, combined with EC initiatives to harmonise the rules on defective products in member states, resulted in a change in the law. EC Directive
aim was to achieve 'a fair apportionment of the risks inherent in modern technological production
issue with Donoghue v Stevenson
depended on proof of negligence: This was often difficult to prove in practice. The costs and risks of litigation left many consumers without an effective remedy.
Consumer Protection Act 1987: basic premise
victim (that is, anyone who suffers injury or damage caused by the product) should be able to sue the producer of the product, provided that he or she can prove that the product was defective. It then falls to the producer to raise any defences listed under s 4, although there are also some explicit limits on recovery. Products are defined broadly. They include any goods, electricity, coal, gas, and even agricultural products
who is liable
s(1)(2) manufacturers or 'producers'
parties importing goods into the European Community (s.2(2)(c))..
2(3) not for supliers
not for suppliers unless they don't supply requested information in time
a. Digdeep plc, which provides coal to the public.
Digdeep provides coal. Coal is obviously a natural element, but we are told in s 1(2) that a producer includes someone who has won or abstracted the product. Hence, Digdeep plc is a producer and therefore could be sued under the Act.
b. Eric sells widgets to the public. He bought them from Fred, who did not tell him where they came from. There is no manufacturing mark on the widgets.
Eric is not a producer. He has not manufactured the widgets. He merely supplies them. Any liability under the Act will depend on s 2(3). This states that where damage is caused wholly or partly by a defect in a product, any person who supplied the product shall be liable if:
the person who suffered the damage requests the supplier to identify one or more of the persons to whom s 2(2) applies in relation to the product
that request is made within a reasonable period after the damage occurs and at a time when it is not reasonably practicable for the person making the request to identify all those persons
the supplier fails, within a reasonable period after receiving the request, either to comply with the request or to identify the person who supplied the product to him. Eric cannot inform any victim of the manufacturer¡¦s identity. He can, however, identify Fred. Provided he informs the victim within a reasonable period of the identity of Fred, he will not be liable.
c. George lives in Brussels. He bought a Wahoo jeep from Japan. He now wishes to sell it to Harriet, who lives in London.
George has imported a product from outside the EC into the EC. He is not the producer. He could only be liable if he satisfies s2(2)(c), which renders liable 'any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.' However, George does not appear to be acting in the course of business. Thus he is not liable under the Act.
d. Indigo plc sell jeans marked 'Indigo's'. They are manufactured for them by Jackie.
Jackie is obviously within the Act as a producer. However, to the P, the jeans are marked 'Indigo's'. s 2(2)(b) provides that 'any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product' will be liable. Both Jackie and Indigo are therefore potentially liable under the Act.
When is a product defective?
D is liable for damage caused wholly or in part by a 'defect' in a product. s 3(1) defines a 'defect' as existing when 'the safety of the product is not such as persons generally are entitled to expect'.
(1)Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes "safety", in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
(2)In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including—
(a)the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
(b)what might reasonably be expected to be done with or in relation to the product; and
(c)the time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.
factors to take into account for defect s3(2)
a. the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product
b. what might reasonably be expected to be done with or in relation to the product
c. the time when the product was supplied by its producer to another.
A v National Blood Authority  VIMP
100 Cs who had been infected with the virus hepatitis C through blood transfusions which had used blood or blood products obtained from infected donors. Although the National Blood Authority had known of the risk of infection from at least the 1970s, it was, at that time, impossible to detect. It was argued that 'persons generally' could not expect 100% clean blood in view of such undetectable risks.
Act imposed strict liability and it was irrelevant that the National Blood Authority had taken all reasonable steps to detect such risks. Patients, having a blood transfusion, were entitled to expect that the blood would be safe and, if it was not, it was defective
NOTE: Burton J specifically mentioned that warnings could render even non-standard
products safe, provided that the warnings were clear and widely known
A v National Blood Authority 
explained that non-standard products (or rogue products) would more easily be shown to be defective. They were not produced in the way that the D intended, which immediately suggested some flaw. In contrast, standard products - that is, products which complied with the manufacturer's intention - would be more difficult to prove to be defective. The court would look at all the factors listed in ss 3(1) and (2) to ascertain whether they were in fact defective.
court found that the blood infected with hepatitis C was a non-standard product - it differed from the standard product of uninfected blood.
Abouzaid v Mothercare (UK)
One of the elastic straps slipped and lashed back. The buckle attached to the elastic strap hit him in the eye causing serious, permanent damage. The claimant sued Mothercare, the supplier of the product, claiming damages in negligence and also under the Consumer Protection Act. Mothercare conceded that it was the producer of the product within the meaning of Part 1 of the act.
arguments for D
the product was not defective when the product was supplied because there had been no previous instances of this type of injury and, in 1990, consumers could not reasonably have expected the product to be designed differently so as to avoid the risk of this type of injury.
even if the product were defective, the respondent was entitled to use the "development risks" defence in Section 4 (1) (e) of the act. This section provides that a producer will not be responsible for a defect in a product if the state of scientific and technical knowledge at the relevant time was not such that a producer might be expected to have discovered the defect.
for the same reasons it did not act negligently in 1990 by supplying the product in that form, and
the claimant acted carelessly in trying to attach the product and was therefore partly responsible for his own injury.
consulting engineer, retained as an expert witness by the parties, concluded that in 1990 no manufacturer of childcare products could reasonably have recognised the potential risk of this type of accident because at that time even experts in the safety of childcare products had not recognised the problem. He further concluded that he would advise a manufacturer today that such a product would have a safety defect unless the potential risk of injuries was eliminated by design or consumers were warned of the possible risks and how to avoid them. Such warnings would need to be included in instructions for fitting the Cosytoes that avoided the difficulties experienced by the C and his mother.
CA approach to D
Court of Appeal accepted the expert's evidence that no prudent manufacturer would have anticipated the risk at the time. Therefore there had been no breach by Mothercare of any common law duty of care.
The case depended on whether the product had a defect as defined in Section 3 of the act. Section 3 provides that a product has a defect if the safety of the product is not such as persons generally are entitled to expect at the time the product was purchased. The claimant argued that the risk arose because of the tendency of elastic to whip back. This risk was the same in 1990 as it was in 1999 and therefore, if it constituted a defect in 1999, it constituted a defect in 1990.
The Court of Appeal considered that a defect, within the Consumer Protection Act, depended on a consumer's "expectations" of safety. The court considered whether public expectations had changed between 1990 and 1999. It concluded that there had been no change. Therefore the product was defective in 1990. The court accepted that the public was entitled to expect a certain level of safety in a product even where a producer could not reasonably have anticipated a particular risk and guarded against it. This was the purpose behind the strict liability provisions in the Consumer Protection Act.
Court of Appeal considered that whether a producer might be expected to have discovered the defect had nothing to do with the state of scientific or technical knowledge at the time. It would have been a simple matter to discover the defect by performing a practical test. No advance in scientific or technical knowledge between 1990 and 1999 would have been required to perform such a test. The only reason that such a test had not been carried out was that the manufacturers had presumably not thought of doing one. The court also expressed doubts as to whether a record of accidents could fall within the definition of scientific or technical knowledge.
Abouzaid v Mothercare (UK) VIMP
The producer was found liable under the Consumer Protection Act's strict liability provisions even though it was not negligent - the exercise of all proper care will not necessarily protect the producer from strict liability if a consumer is injured by a defect in the product.
A manufacturer or supplier may be liable under strict liability even if the risk could not have been recognised at the time of supply.
The development risks defence will be available only where there has been some scientific or technical advance since the time of supply, which enabled the defect to be identified.
Consumer expectations of safety are the key to defining a defect under the Consumer Protection Act. How these expectations may change over time is an unresolved problem under the act. Also, it is not the consumers' actual expectations of safety that is important under the act but what consumers are entitled to expect. Grey areas will still cause problems until more cases have been through the courts. For example, in Richardson v. LRC Products it was held by the High Court last year that, in the case of a condom which ruptured in use, the product was not defective because the public was not entitled to expect that any method of contraception intended to defeat nature will be 100% effective.
Worsley v Tambrands Ltd. 
claimant suffered toxic shock syndrome ("TSS")
which she alleged was caused by a tampon manufactured by the defendant. The
defendant denied causation and argued that there was at most a statistical association
between tampon use and TSS. Since the claim was disposed of on the defendant's
submission that there was no case to answer the question of medical causation was
C's H had thrown away the leaflet contained in the box which incorporated warnings of the symptoms of TSS and the steps to be taken in the event of their manifestation. Thus the C was forced to argue that the full warnings should have been displayed on the box and/or that the warnings over the years (which she had read) should have been designed to make a greater impact on her memory.
(i) the D had placed on the outside of the box a clearly legible warning directing the user to the leaflet contained inside; (ii) the leaflet was legible, literate, unambiguous and adequate to inform the user of the warning signs of TSS and the steps to be take, if those signs manifested themselves. These findings were sufficient to dispose of the allegation of an information defect in the product. The judge went on to find that (iii) the D was unable to "cater for lost leaflets or those who choose not to replace them as the C could have done".
Worsley v Tambrands Ltd. 
causation without making a distinction between the two causes of action to which different tests, it is submitted, should be applied. On page 5 the judge stated that the C must prove the tampon was defective and that the damage was caused in whole or part by the defect. This follows closely the statutory wording. At page 16, however, the issues are characterised as whether the British leaflet fell below the CL or statutory standard and, if so, whether a different design would have caused the C to act differently. It is arguable that the second question is only relevant to the causation test in negligence but was applied to both causes of action. The statutory test is whether the defect caused the damage. In relation to manufacturing and design defects there appears to be no place for a requirement for the C to prove a different outcome in the absence of the defect complained of. In the case of a design defect, however, the position is less clear because the effect of the defect is to influence the conduct of the C. In those circumstances it is arguably necessary to look at the hypothetical conduct of the C in the absence of the influencing factor in order to complete the link between defect and damage.
Ambrose Industries manufactures 'Relaxeze' pills for people suffering from headaches. On the box, it states in bold type: 'Be warned. There is a very small risk that these pills may cause epileptic fits in some people. Anyone at risk of epilepsy should consult their doctor before use.' This is also stated in the instructions accompanying the pills, which the user is instructed to keep.
Beryl buys the pills and throws away the box with the instructions inside. She takes one pill and then has an epileptic fit. Would a court find Relaxeze to be defective under s 3?
Ambrose is a producer under the Act: ss 1(2), 2(2)(a). The pills it has manufactured have caused Beryl a serious injury, but Ambrose will only be liable under the Act if the pills are found to be defective under s 3. It depends whether they provide the safety which persons generally are entitled to expect. They are a standard product, that is, Ambrose knows that each pill will contain a risk of fits. Looking at s 3 generally, we note that the packaging contains an express warning, as do the instructions inside. Beryl, it would seem, reads neither the packaging nor the instructions, but they are available. Guidance may be gained from the case of Worsley v Tambrands Ltd  PIQR P95. Here, Mrs Worsley, on purchasing tampons, had been warned of the risk of toxic shock syndrome on the packaging of the product, and in detail on a leaflet which accompanied the product which the P was advised to read and keep. Ebsworth J. held that
The reality of this case is that the C had lost the relevant leaflet and, for some inexplicable reason, misremembered its contents as to the onset of the illness. That does not render the box or the leaflet defective, and the claim must fail. The D had done what a menstruating woman was, in all the circumstances, entitled to expect: (1) they had a clearly legible warning on the outside of the box directing the user to the leaflet; (2) the leaflet was legible, literate, and unambiguous and contained all the material necessary to convey both the warning signs and the action required if any of them were present; and (3) they cannot cater for lost leaflets or for those who choose not to replace them.'
In Worsley, therefore, Mrs Worsley should have been alerted due to the warning of the initial symptoms of her illness and would have been able to go to her doctor before it became life-threatening. Here, Ambrose would argue that it gave a clear warning which should have alerted Beryl to the risk of an epileptic attack and, if she was at risk, she should have consulted her doctor. Although Worsley is clearly a stronger case in that there was a time lapse between the initial symptoms and the onset of serious illness, it could be argued that, by analogy to Worsley, Ambrose has given a sufficient warning of the dangers to render the product safe.
strict liability does not mean automatic liability, but simply that the C does not have to prove that the D has been at fault.
4 Defences.(1)In any civil proceedings by virtue of this Part against any person ( "the person proceeded against") in respect of a defect in a product it shall be a defence for him to show—
(a)that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any Community obligation; or
(b)that the person proceeded against did not at any time supply the product to another; or
(c)that the following conditions are satisfied, that is to say—
(i)that the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person's; and
(ii)that section 2(2) above does not apply to that person or applies to him by virtue only of things done otherwise than with a view to profit; or
(d)that the defect did not exist in the product at the relevant time; or
(e)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; or
(f)that the defect—
(i)constituted a defect in a product ( "the subsequent product") in which the product in question had been comprised; and
(ii)was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product.
(2)In this section "the relevant time", in relation to electricity, means the time at which it was generated, being a time before it was transmitted or distributed, and in relation to any other product, means—
(a)if the person proceeded against is a person to whom subsection (2) of section 2 above applies in relation to the product, the time when he supplied the product to another;
(b)if that subsection does not apply to that person in relation to the product, the time when the product was last supplied by a person to whom that subsection does apply in relation to the product.
CPA s 6(4) (5) contributory N is provided for, i.e. defence when only partly fault of D
(4)Where any damage is caused partly by a defect in a product and partly by the fault of the person suffering the damage, the M7Law Reform (Contributory Negligence) Act M8 1945 and section 5 of the Fatal Accidents Act 1976 (contributory negligence) shall have effect as if the defect were the fault of every person liable by virtue of this Part for the damage caused by the defect.
(5)In subsection (4) above "fault" has the same meaning as in the said Act of 1945.
summary of Ds
the defect is due to compliance with a requirement imposed by law
the defendant did not at any time supply the product
the only supply of the product to another by the defendant was not in the course
of business, and s.2(2) does not apply to the defendant or applies to him due to
things not done with a view to profit
the defect did not exist in the product at the time supplied
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
the defect was in a product in which the product in question was a component,
and was wholly due to the design in the subsequent product or due to compliance
by the producer of the product with instructions given by the producer of the
'Development risk' under s.4(1)(e)
A v National Blood Authority 
was applied by Burton J in the leading case of A v National Blood Authority  3 All ER 289. Here, the application seems quite harsh. The National Blood Authority, as previously stated, knew of the risk of infection by hepatitis C, but was unable to detect this virus until September 1991. Nevertheless, the court held that the defence would not apply when the D knew of the risk of infection.
ex D: a. Griselda makes a fruit tart for a school cake sale. By mistake, she uses poisonous berries instead of blackberries. Griselda's cake is bought at the sale by Henrietta.
The cake is a product and, if poisonous, is clearly defective under s 3. Does Griselda have a defence? Under s 4(1)(c), if she is not supplying goods in the course of business and is simply a supplier or not acting with a view to profit, she will have a defence. We assume that she is not a professional cook, but merely providing the cake to contribute to school funds. She has made the cake and so is a producer within s 2(2). She is not acting with a view to profit personally, but of course seeking to profit the school. It is to be presumed that this will satisfy s 4(1)(c).
D: Isobel produces Cureotis, a revolutionary new drug which is capable of providing a cure for some forms of cancer. It is a very difficult drug to produce and there is no way of preventing a tiny proportion of the drug being contaminated with the X virus. The X virus is undetectable. James uses Cureotis successfully and his cancer is now in remission. Unfortunately, he has recently contracted the X virus.
The drug, Cureotis, taken by James - the product - has been contaminated by the X virus. On the analysis of A v National Blood Authority  3 All ER 289, the pure drug would be the standard product which the consumer assumes that he will receive, and the drug contaminated with the X virus, non-standard. In the absence of any widely acceptable warnings, the drug taken by James will be deemed defective under s 3.
Can Isobel rely on the s 4(1)(e) 'development risk' defence? She must establish that the state of 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. Following A and European Commission v United Kingdom  All ER (EC) 481, regardless of the fact that Isobel is producing a valuable drug and that it is impossible to detect the virus, the risk of the virus is known and therefore she cannot rely on s 4(1)(e). This seems harsh and potentially would seem to discourage the production of valuable drugs, but in A, Burton J clearly stated that the strict liability goal of the Act would be taken very seriously. All Isobel could possibly do would be to publicise the risk and ensure that all consumers knew the risk they were taking in using the drug. If it were deemed socially acceptable, then the court might find that the drug was not defective in the first place. It will not, however, alter its approach to s 4(1)(e).
5 Damage giving rise to liability.
(1)Subject to the following provisions of this section, in this Part "damage" means death or personal injury or any loss of or damage to any property (including land).
(2)A person shall not be liable under section 2 above in respect of any defect in a product for the loss of or any damage to the product itself or for the loss of or any damage to the whole or any part of any product which has been supplied with the product in question comprised in it.
(3)A person shall not be liable under section 2 above for any loss of or damage to any property which, at the time it is lost or damaged, is not—
(a)of a description of property ordinarily intended for private use, occupation or consumption; and
(b)intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.
(4)No damages shall be awarded to any person by virtue of this Part in respect of any loss of or damage to any property if the amount which would fall to be so awarded to that person, apart from this subsection and any liability for interest, does not exceed £275.
(5)In determining for the purposes of this Part who has suffered any loss of or damage to property and when any such loss or damage occurred, the loss or damage shall be regarded as having occurred at the earliest time at which a person with an interest in the property had knowledge of the material facts about the loss or damage.
(6)For the purposes of subsection (5) above the material facts about any loss of or damage to any property are such facts about the loss or damage as would lead a reasonable person with an interest in the property to consider the loss or damage sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(7)For the purposes of subsection (5) above a person's knowledge includes knowledge which he might reasonably have been expected to acquire—
(a)from facts observable or ascertainable by him; or
(b)from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable by him only with the help of expert advice unless he has failed to take all reasonable steps to obtain (and, where appropriate, to act on) that advice.
(8)Subsections (5) to (7) above shall not extend to Scotland.
covers death or personal injury or any loss of or damage to property, including land: s 5(1). However, it does not extend to pure economic loss: s 5(2). Equally, property damage is restricted by ss 5(3) and (4). It will not include:
property not ordinarily intended for private use, occupation or consumption and not intended to be used for private use, occupation or consumption
property damage which does not exceed 275. Liability cannot, however, be limited or excluded by any contract term, by any notice or by any other provision: s 7.
Griselda sets up her own cake stall outside her house. She sells a fruit tart containing the poisonous berries to Ivor. He gives a piece to his son, Kevin. Kevin takes a bite, but decides that he doesn't like the taste and gives the rest to his pet cat, Jumper. Kevin becomes ill and Jumper dies. Jumper was a show cat, whose value has been estimated at £300.
Griselda is acting with a view to profit, if not acting in the course of a business. She cannot rely on s 4(1)(c). The cake is defective (s 3) and causes injury to Kevin and damage to Kevin's property, Jumper.
s 5(1) allows for recovery for personal injury. Kevin can recover for this. The death of Jumper amounts to property damage, which takes us to ss 5(3) and (4). His value is greater than the limit of £275, but the court must also be satisfied that he is a pet cat and not a commercial asset. Arguably, a show cat is a commercial asset and is not intended for private use. However, the fact that he seems to belong to Kevin who is treating him as a pet suggests that he is both a pet and a show animal. Certainly, if it can be shown that Jumper is primarily a pet, there should be no problem satisfying s 5(2).
Liability for animals: Animals Act 1971
A D may be liable in any T (particularly nuisance or negligence) as the result of the behaviour of animals. Owners of animals have a DOC and may be liable in negligence even if they would not be liable under the Animals Act 1971 (see Draper v Hodder 
Draper v Hodder 
D's Jack Russell terrier pups escaped from his premises and caused serious personal injury to the infant C, who was playing next door. The young dogs made their attack whilst acting as a pack and this was a foreseeable risk against which the D should have taken greater precautions. Neg
Liability for dangerous animals
The Animals Act 1971 imposes, in certain circumstances, strict liability on keepers of animals.
Act draws a basic distinction between animals of a dangerous species and animals of a non-dangerous species. More will be expected of those who choose to keep dangerous animals
s6(3) and (4) keeper definition
nterpretation of certain expressions used in sections 2 to 5.(1)The following provisions apply to the interpretation of sections 2 to 5 of this Act.
(2)A dangerous species is a species—
(a)which is not commonly domesticated in the British Islands; and
(b)whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.
(3)Subject to subsection (4) of this section, a person is a keeper of an animal if—
(a)he owns the animal or has it in his possession; or
(b)he is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession;
and if at any time an animal ceases to be owned by or to be in the possession of a person, any person who immediately before that time was a keeper thereof by virtue of the preceding provisions of this subsection continues to be a keeper of the animal until another person becomes a keeper thereof by virtue of those provisions.
(4)Where an animal is taken into and kept in possession for the purpose of preventing it from causing damage or of restoring it to its owner, a person is not a keeper of it by virtue only of that possession.
(5)Where a person employed as a servant by a keeper of an animal incurs a risk incidental to his employment he shall not be treated as accepting it voluntarily.
will therefore include animals such as tigers, elephants and lions. As noted in the leading case of Mirvahedy v Henley 
Mirvahedy v Henley 
cases will generally arise in the context of escapes from circuses or zoos. s 2(1) provides that the keeper of the dangerous animal will be strictly liable for any damage caused by such an animal, subject to the defences
using section 2(2)
held strictly liable following a Law Lords' interpretation of the Animals Act 1971, for injuries to motorist Hossein Mirvahedy in an accident after their horses escaped from a field. This case has set a precedent and led to insurance premium increases for every horse owner
Mirvahedy v Henley 
is the keeper of an animal such as a horse strictly liable for damage caused by the animal when the animal's behaviour in the circumstances was in no way abnormal for an animal of the species in those circumstances?
Mirvahedy v Henley  POLICY arguments ot answering main question
Considered as a matter of social policy, there are arguments in favour of answering this question yes, and arguments in favour of answering no. It may be said that the loss should fall on the person who chooses to keep an animal which is known to be dangerous in some circumstances. He is aware of the risks involved, and he should bear the risks. On the other hand, it can be said that, negligence apart, everyone must take the risks associated with the ordinary characteristics of animals commonly kept in this country. These risks are part of the normal give and take of life in this country.
BUT the statue must be interpreted as is.
3 conditions which must ALL be satisfied
(a) and (b) set an objective test; (c) will depend on the keeper's actual knowledge. The damage must be foreseeable, and must be caused by characteristics of the animal which are abnormal in the species or abnormal in view of the animal's usual behaviour
(1)Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.
(2)Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if—
(a)the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and
(b)the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and
(c)those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper's servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.
issues with clause (b)
of Mirvahedy v Henley 
)the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and
draws a distinction between permanent characteristics - as where the animal is far more vicious than the rest of the species - and temporary characteristics - as where the animal is not normally vicious except at particular times and in particular circumstances.
of Mirvahedy v Henley 
majority (3:2), was willing to accept that perfectly ordinary reactions to events would fit within the category of 'temporary characteristics'. On that basis, horses escaping from a field when panicked by an unknown event satisfied s 2(2)(b), even though such conduct could not be described as 'abnormal'.
D was the occupier of a breaker's yard in the East End of London. At night the yard was locked up and the D's untrained Alsatian dog was turned loose to deter intruders. One night an associate of the D, who had access to a key, unlocked the side gate and, accompanied by the plaintiff, who knew about the dog, entered the yard. The dog attacked the plaintiff causing her serious injury.
that if the dog were to bite anyone the damage was likely to be severe; that the likelihood of such damage was due to characteristics not normally found in Alsatians except in the " . particular circumstances," . namely, an untrained dog roaming a yard which it regarded as its territory; that it could be assumed that those characteristics were known to the D; and, accordingly, that the requirements of s 2 (2) were satisfied. But (2), allowing the appeal, that in all the circumstances it was not unreasonable for the D to keep the dog in the yard to protect his property; that, accordingly, as the plaintiff was a trespasser, the D was excepted from liability under s 2 by s 5 (3) (b); and, further, that as the plaintiff entered the yard knowing all about the dog she must be taken to have voluntarily accepted the risk of damage, thereby absolving the D of liability as provided by s 5 (2).
Curtis v Betts 
D owned a bull mastiff dog. It was known to react fiercely when protecting its territory. The plaintiff, a child, had known the dog since it was a puppy, and approached as the dog was about to be put into a car. The dog bit his face causing injury.
The owner was strictly liable. Where it was known the dog may react aggressively, it was not necessary for the plaintiff to show that the dog had any abnormal characteristics. Animals Act 1971 2(2)
found the attack on a young boy by a normally docile dog while being transferred into a Land Rover to be transported to the local park for exercise did satisfy s 2(2)(b). The dog was very protective of areas regarded as its territory and this could be regarded as a temporary characteristic.
a guard dog attacking an intruder (Cummings v Granger  QB 397) and a bull mastiff defending his territory (Curtis v Betts  1 WLR 469) were considered to be examples of animals reacting in a manner 'not normally so found except at particular times or in particular circumstances'.
Animals Act Defences
(1)A person is not liable under sections 2 to 4 of this Act for any damage which is due wholly to the fault of the person suffering it.
(2)A person is not liable under section 2 of this Act for any damage suffered by a person who has voluntarily accepted the risk thereof.
(3)A person is not liable under section 2 of this Act for any damage caused by an animal kept on any premises or structure to a person trespassing there, if it is proved either—
(a)that the animal was not kept there for the protection of persons or property; or
(b)(if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.
(4)A person is not liable under section 3 of this Act if the livestock was killed or injured on land on to which it had strayed and either the dog belonged to the occupier or its presence on the land was authorised by the occupier.
(5)A person is not liable under section 4 of this Act where the livestock strayed from a highway and its presence there was a lawful use of the highway.
(6)In determining whether any liability for damage under section 4 of this Act is excluded by subsection (1) of this section the damage shall not be treated as due to the fault of the person suffering it by reason only that he could have prevented it by fencing; but a person is not liable under that section where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence.
Animals Act Defences
s 5(1) provides that a person will not be liable under ss 2-4 for any damage which is wholly due to the fault of the person suffering it. s 10 further provides for a defence of contributory negligence. s 5(2) establishes a defence of voluntary acceptance of risk for s 2 only. s 5(3) is equally confined to s 2 and provides that a person will not be liable to a trespasser on the land, if it is proved:
'(a) that the animal was not kept there for the protection of persons or property; or (b) (if the animal was kept there for the protection of persons or property) that keeping it there for that purpose was not unreasonable.'
protects landowners with guard-dogs and keepers generally. See Cummings v Granger 
Alexander is a keen animal-lover. He lives in a big house in the country and keeps six pet dogs. He also keeps a number of peacocks. He dotes on the animals and feeds them every day.
One day, he decides to take his pet dogs to visit his sister, Agatha. He piles the dogs into the back of his van, and says goodbye to the peacocks. One of the peacocks, Florence, follows the car out of the drive and wanders into the main road. Barry, who is driving too fast, drives into Florence and suffers severe injuries. Alexander, who is driving very slowly, sees the crash in his rear-view mirror and stops. He backs up the van in an attempt to help. Barry staggers out of the car and towards Alexander's van. He opens the back of the van in an attempt to obtain assistance, but is attacked by Jupiter, one of Alexander's pet dogs. Jupiter is normally very mild, but is very protective of the van in which the dogs always travel on visits to Agatha. Advise Barry on his claim for personal injuries suffered due to the crash and the attack by Jupiter.
Barry will attempt to claim under the Animals Act 1971. First, he must identify whether the animals involved will be classified as dangerous or non-dangerous. Under the definition in s 6(2): 'a dangerous species is a species - (a) which is not commonly domesticated in the British Islands; and (b) whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.' Peacocks are not commonly domesticated, but dogs are.
The claim involving Florence will therefore proceed under s 2(1). This provides that the keeper of the dangerous animal - here, Alexander - will be strictly liable for any damage caused by such an animal. We can assume that Florence's escape caused the accident: see Mirvahedy v Henley  2 AC 491 (horses escaping from a field on to a dual carriageway). Defences do, however, exist. Barry has been at least contributorily N. It may even be found on more detailed investigation that the accident was his fault entirely: s 5(1). Barry could try an alternative claim against Alexander for negligence - how did the peacock escape? - but the defences would be equally applicable against such a claim.
Jupiter is a pet dog and therefore any liability would arise under s 2(2). Barry would have to satisfy the three tests:
It is foreseeable that a dog may cause severe injury to an individual. Jupiter's reaction, however, might be seen as the ordinary act of a dog defending his territory. However, in Curtis v Betts  1 WLR 469, the court found the attack on a young boy by a normally docile dog while being transferred into a Land Rover to be transported to the local park for exercise did satisfy s 2(2)(b). The dog was very protective of areas regarded as its territory and this could be regarded as a temporary characteristic. Equally, therefore, we can argue that Jupiter defending the back of the van was a temporary characteristic, capable of satisfying s 2(2)(b). Liability would then depend on whether Alexander was aware of this fact.
If we assume that he does, do any defences arise? Again, we can argue fault or contributory negligence, but here the court would ask whether Barry should have been aware that there were dogs in the back of the van, bearing in mind his condition at the time. It certainly would be difficult to claim that he voluntarily assumed that risk under s 5(2). As there is no evidence that he entered the back of the van, he cannot be deemed a trespasser under s 5(3). Barry's claim will thus depend largely on whether the court finds him to be at fault, and, if so, to what degree.
product liability Directive v fault
In contrast to the approach under traditional fault liability, the product liability Directive concentrates on the objective characteristics of a given product and asks whether it is to be considered defective. The conduct of the manufacturer is not taken into consideration when assessing his responsibility; instead he is accountable in an objective way, i.e. he is strictly liable for any damage caused by his product.
Producer in the directive
manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part, or any person who, by putting his name, trademark or other distinguishing feature on the product presents himself as its producer. Also any persons who import into the Community a product for Sale, hire, leasing or any form of distribution in the course of their business.5 When the producer cannot be identified, each supplier of the product is treated as its producer unless he informs the consumer, in reasonable time, who the real producer or the person who supplied him with the product is. The same applies to an imported product, if the product does not indicate the identity of the importer, even if the name of the producer is indicated
products concerning the Directive are
" . all moveables even though incorporated into another moveable or into an immovable"7 with the exception of " . primary agriculture products and game" . . This is a very wide definition. It clearly includes all finished goods as well as raw materials and components incorporated in a finished product. The product does not have to be a consumer product but it must have been industrially produced. Electricity is specifically included in the definition.
plaintiff is required to prove
defect and damage and the causal link between them.8 'Damage' according to Article 9 means either damage caused by death or by personal injuries or damage to, or destruction of, an item of property other than the defective product itself; provided that (a) the item of property is of a type ordinarily intended for private use or consumption, and (b) was used by the injured person mainly for his own private use or consumption. Compensation for non-material damage (pain and suffering, loss of reputation etc.) is expressly excluded from the Directive9, leaving this to the national legislation.
concept of defectiveness
tested by reference not to the product's functioning and performance but to the expectation of safety which should apply to it in the circumstances.
Three factors are specified in the Directive as amongst those which are to be taken into account in deciding whether a product is defective: 188.8.131.52. " . the presentation of the product" . ; this could include consideration of marketing, product description, information and warnings. In this case, the expectation of safety of a product may be qualified by instructions, contraindication, and precautions issued to the consumer.
"the use to which it could reasonably be expected that the product would be put" . . It is not surprising that the use to which the product was in fact put when it caused the damage is taken into account, given that the general approach to consumer safety in the Directive is objective. A producer may often find that his product has been put to an unintended use, misused or abused.
the third factor is " . the time when the product was put into circulation." . A product should not be defective if it becomes dangerous only after extensive or reasonable life. If it may become less safe with time however, it must be accompanied by an adequate warning. Thus, use by a consumer after an expire date clearly marked on a product should excuse the manufacturer. The directive also provides expressly that " . a product shall not be considered defective for the sole reason that a better product is subsequently put into circulation" .
preamble of the Directive which mentions that there should be " . a fair apportionment of risk between the injured person and the producer so that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances" . , the producer can exculpate himself if he proves in accordance with Article 7:
(a) that he did not put the product into circulation; or (b) that in the circumstances it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect come into being afterwards; or (c) that the product was neither manufactured by him for safe or any form of distribution for economic purposes nor manufactured or Distributed by him in the course of his business
proof of causation rests on the plaintiff
notion of strict liability in the Directive entails that the consumer must prove that the product caused the injury and also that, but for a defect in the product, that injury would not have arisen.
CRITIQUE AND ECONOMIC ANALYSIS OF THE DIRECTIVE
egime of strict liability for defective products appears to represent a development in favour of consumers at the expense of producers. In fact, the system is intended to address at least some of the problems which arose under the contract and fault liability theories when applied to the area of consumer protection. But although the range of potential Ds has been extended, this may not necessarily lead to an increase in the findings of liability itself.
1. proof of causation still rests on the C
producer can avoid liability by seemingly only having to prove that he complied with DOC
availability of the development risks defence is highly problematic.
In England it may be advisable to forego the proof of the product
being defective in favour of an action for breach of the implied condition of merchantable quality
. proof of causation still rests on the C
directive in no way alters other existing national rules on the burden of proof.
producer can avoid liability by seemingly only having to prove that he complied with the general duty of care to which he might have been expected to conform in manufacturing and supplying a product, and therefore that the defect probably did not exist at that time. In fault liability, the question is whether the producer's conduct was reasonable. The question of what constitutes reasonable conduct can only be answered in the context of the state of actual and constructive knowledge of the D of the relevant time which in turn involves consideration of the discoverability of the problem.
development risks defence
justification of the development risks defence is the encouragement a research into new products. A producer confronted with absolute liability for unforeseeable defects will obviously not risk marketing any new products because of the cost of potential liability and the danger of damage to reputation in the event of successful proceedings against him; this is to the ultimate detriment of the consumer.
It becomes a matter of strategy thereafter given the availability of insurance- whether it is advisable to allow the development risks losses to fall upon the individuals or whether it is more desirable to require all consumers to contribute to the costs of insurance when making their purchases.
common product liability regime in Europe encompasses two main purposes
fair apportionment of risks and the enhancement of market unity.
significant differences between CPA and directive
essence of the present law is that the producer of a defective
product is liable for damage caused by that product, unless he can rely on one of the defences. Thus, the system focuses on the condition of the product instead of the conduct of its producer.
title of the Act can be misleading however, as it will protect not only a 'consumer' but anyone who suffers injury or damage as a result of a defective product. The C must show (a) damage, (b) defect in the product, and (c) a causal link between the two.
section 3(1) there is a defective product "if the safety of the product is not such as persons generally are entitled to expect". The definition is not confined to or which are dangerous to health, but includes risk to property and products damage and inconvenience.
it fails to provide a readily ascertainable objective standard against which a manufacturer can ensure the safety of his product, and, in that respect, does not move too for ahead from the previous position under the law of T.
defences are found in section 4 of the Act.
One is that the defect is attributable to compliance with any statutory requirement or EC obligation. Also, "that the person proceeded against did not at any time supply the product to another" which covers cases of mistaken identity, where the wrong manufacturer or supplier is sued or where the goods are stolen from the manufacturer or distributor. The third defence exculpates the manufacturer for goods supplied for non-profit reasons, e.g. gifts, charity, etc. Another defence can be mode from the fact that the defect did not exist in the product at the relevant time. The most important one is the 'development risks' defence, which has been incorporated into the Act in England, whereby " . 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 producer in question might be expected to have discovered the defect if it had existed in his products while they were under his control" . .