Introduction

In determining liability in instances where a claim of defective product is made, the tort of negligence is of paramount importance. This essay will specifically discuss key elements that are required in proving liability in the tort of negligence for an injury due to defective products as well as the circumstances under which a claim under part I of the Consumer Protection Act 1987[1] hereinafter referred to as the Act can be made. The above, among other issues, will be addressed in the subsequent paragraph.

The basis/requirements of an action in the tort of negligence for an injury due to a defective product

In light to the above, there are five major elements that the plaintiff must prove in order to make a successful claim. These elements include: i) the manufacturers duty of care to the plaintiff as founded in Donoghue v Stevenson,[2]ii) the breach of the manufacturers duty of care, iii) a clear link between the manufacturers breach of the duty of care and the plaintiff’s injury iv) the proximity between the breach of the duty of care and the cause of the injury v) proof of actual damages suffered as a result of the manufacturers negligence.[3]

Circumstances under which an action in the tort of negligence for an injury due to a defective product may be brought under part I of the consumer protection Act 1987.

An action under Part 1 of the Act may only be made if the damage is caused to private property or for property meant for private consumption.[4] Additionally, the value of the damage caused must have exceeded £275. Proof of damage or loss suffered is also important. Further, the act leading to loss or damage must be of such a nature that can be considered to be inherently dangerous. Essentially, the Act gave effect to the European Community  product liability Directive[5]. This is by way of introducing strict liability for damages resulting from defective products.

When one is presumed liable for damages caused due to acts of commission or omission without having to prove fault, intention or negligence on his part, the Strict liability rule is said to be applied. In the law of tort strict liability is prominently applied in product liability. Fundamentally, the application of strict liability rule renders proof of negligence unnecessary as long as damage or loss is caused. Rylands v Fletcher[6]  is the genesis of the application of strict liability rule by the court.

Circumstances to be considered in applying strict liability

As long as loss or damage have been caused to the plaintiff, strict liability rule can be applied. However, the act leading to the damage or loss and must be of such a nature that could be considered inherently dangerous for the rule to be successfully applied.[7]

The difference between bringing a claim under part 1 of the Act and outside of the Act

In general terms, product liability calls for proof of negligence which can only be achieved if the elements explained previously are satisfied. However, the application of part 1 of the consumer protection Act creates a major difference in that the Act renders one liable on a mere basis that damage or loss has been suffered by the plaintiff.[8]

The basis of the choice to pursue the claim under part 1 of the Act or outside of the Act

The basis of making a choice whether to make a claim under the Act or not would greatly be influenced by: i) the possibility to successfully make a claim and ii) the amount of damages that one is likely to get from one or the other

Conclusion

Though the concept of strict liability is dependent on whether or not the damage or loss is suffered, the outcome would however depend on the court’s finding on whether the act leading to the damage or loss suffered is inherently dangerous.

 

 

Bibliography

Cases

Donoghue v Stevenson [1932] UKHL 100

Rylands v Fletcher [1868] UKHL 1

Acts of parliament

Consumer Protection Act 1987

EU Directives

Council Directive 85/374/EEC

Books

CII Journal (The Institute)

Currier K and Eimermann T, Introduction To Paralegal Studies (Wolters Kluwer Law & Business 2013)

Dooley D, BTEC National Business (Heinemann)

Wilde M, Civil Liability For Environmental Damage (Kluwer Law International 2002)

 

 

 



[1] Consumer Protection Act 1987

[2] Donoghue v Stevenson [1932] UKHL 100

[3] Mark Wilde, Civil Liability For Environmental Damage (Kluwer Law International 2002).

[4] CII Journal (The Institute).

[5] Council Directive 85/374/EEC

[6] Rylands v Fletcher [1868] UKHL 1

[7] Katherine A Currier and Thomas E Eimermann, Introduction To Paralegal Studies (Wolters Kluwer Law & Business 2013).

[8] David Dooley, BTEC National Business (Heinemann).

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