Tort 8 Particular statutory regimes: strict liability

Terms in this set (66)

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.
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.
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 [2000] 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.
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.
The drug, Cureotis, taken by James - the product - has been contaminated by the X virus. On the analysis of A v National Blood Authority [2001] 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 [1997] 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.
(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.
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 [2003] 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 [1990] 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.
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: " . 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" .