LANDMARK NEGLIGENCE CASE
Donoghue and Stevenson
Mrs D went to a cafe where her friend bought her a ginger beer, There was a snail in the bottle. Mrs D was unable to sue the cafe as she didn't buy the drink (Sale of Goods can only be used when you are in direct contract with the other party). She sued the manufacturer for negligence , and the House of Lords judges found for her.
MANUFACTURERES owe a DUTY OF CARE to cunsumers of their products.
BREACH OF DUTY
Must be proved against the defendant for a successful negligence claim. A great deal of evidence generally needed.
Breach of Duty defined as: Standard of care that a 'reasonable man' would apply if they were in the same position as the Defendant.
Generally includes property damage or physical injury.You cannot claim for the cost of the faulty product itself.
CAUSATION must be proven (ie did the breach of duty cause the loss or damage)
Negligence & Product Liability
DIFFERENCE BETWEEN SUING FOR NEGLIGENCE AND SUING UNDER STRICT LIABILITY
Under Negligence, breach of duty must be proven. This need of removed under 'strict liability'.
UNDER THE CONSUMER PROTECTION ACT 1987 PART 1, THE CONSUMER CAN TAKE ACTION AGAINST...........
- The PRODUCER - usually the manufacturer
- The IMPORTER - referring the the importers into the EU rather that into the UK
- The OWN-BRANDERS - suppliers who put their own name on the product and give the impression that they are the producers (eg Tesco own brand)
WHAT IS 'STRICT LIABILITY'?
'Strict Liability' means that the defendant will be liable as long as there is a defective product that has caused injury and/ or property damage, The claimant does not have to prove that the supplier was at fault.
WHAT IS A'DEFECTIVE PRODUCT'?
Defined as a product where the safety of the product is not what people are entitled to expect.
When deciding if a product is defective, the court will take into account;
- The way the product was marketed
- Instructions or warnings given with it
- What would reasonably be expected to be done with it
- The time it was supplied
WHEN IS IT LIKELY THAT PRODUCT LIABILITY WILL BE USED TO CLAIM COMPENSATION FOR PHYSICAL INJURY & PROPERTY DAMAGE?
- When the claimant isn't in contract with the retailer
- when the retailer has disappeared or become insolvent.
WHAT SORT OF DAMAGE IS COVERED?
- Death, personal injury or property damage exceeding the value of £275
- The cost of the defective product itself cannot be recovered
- Property claimed for must be for private use
- Defendant must show causation (that the defect caused the damage)
DEFENCES AVAILABLE UNDER THE CPS 1987 PART 1.
- He did not supply the product (eg it was stolen from them)
- The defect was not in the product at the time it was supplied
- The defect was caused by complying with the law
- The producer of a defective product will not be liable if they can show that the defect was due to the design of the finished product, or to faulty specifications given by the producer of the finished product.
- 'Development Risks Defence' -the state of scientific and technical knowledge at the time the product was supplied was insifficient to expect them to discover the defect (see A and others v. National Blood Authority and others)
A and others v. National Blood Authority and others 
Claimants contracted hepatitis C from blood transfusions received between 1988 and 1991. The National Blood Authority had not screened the blood until 1991 even though it became possible for them to screen for this infection in 1988.
The NBA tried to use the Development Risks Defence, but failed as there was sufficient scientific knowledge, they had simply failed to use it.
CRIMINAL LAW ON SAFE GOODS.
- General Product Safety Regulations 2005
- General Safety Requirement ( Consumer Protection Act 1987 Part II)
- Specific Rules and Regulations related to various products (eg food safety laws)
WHICH PRODUCTS ARE COVERED BY THE GENERAL PRODUCT SAFETY REGULATIONS?
All products placed commercially on the market.
WHAT IS THE DEFINITION OF 'SAFE' UNDER THE GENERAL PRODUCT SAFETY REGULATIONS 2005?
'Any product which under normal or reasonably foreseeable conditions of use presents no risk or only the minimum risk compatible with the product's use, and which is consistent with a high level of protection for consumers.'
TO WHOM DO THE GENERAL PRODUCT SAFETY REGULATIONS 2005 APPLY?
All UK producers and distributors of product used by consumers whether or not intended for them and whether or not intended for them.
WHO APPLIES THE GENERAL PRODUCT SAFETLY REGULATIONS 2005? AND WHAT ENFORCEMENT POWERS DO THEY HAVE?
Local enforcement authorities (eg Trading Standards) enforce the Regs. They have various powers such as the power to:
- investigate a breach
- enter premises
- make test purchases and undertake testing
- seize records and products
- issue a suspecsion notice
- issue a withdrawal notice
- issue a recall notice
- order the forfeiture and destruction of a product.
WHAT PENALTIES ARE AVAILABLE UNDER THE GENERAL PRODUCT SAFETY REGULATIONS 2005?
- £5,000 fine or 3 months imprisonment
- for negligent directors: £20,000 fine or 12 months imprisonment.
WHAT DEFENCE IS AVAILABLE UNDER THEGENERAL PRODUCT SAFETY REGS 2005?
WHAT POWERS ARE GIVEN UNDER THE CONSUMER CREDIT ACT PART II?
The Secretary of State for Trade and Industry is empowered to issue:
- Prohibition Notice - prohibits someone supplying a particular product.
- Notice to Warn - requires supplier to publish a warning about a particular product
- Suspension Notice - precautionary notice, issued when there is reasonable casue to suspect a breach, but breach has not been proven. Stops anyone supplying particular goods. Stays in place for 6 months.