PRODUCT LIABILITY

Product liability is generally understood to be the civil liability of a manufacturer/producer/distributor

for damage or injury caused by a defect in the product.

The Consumer Protection Act introduced new criminal offences regarding unsafe products and unfair or
incorrect prices. It also introduced a new route for consumers seeking redress for damage from
consumer goods. Strict liability operates under this Act. The victim will not have to prove fault nor will it
be up to him to prove that the goods were defective — he would only need to prove injury to himself
and/or any of his legally protected interests. Therefore, the third parties also who were not buyers of
goods and who were affected (a victim not party to a contract, for example a bystander, or the recipient
of a goods can seek relief under the Consumer Protection Act.

Traditionally under English law a victim has had two routes under which to pursue
compensation:
1 Law of Contract
2 Law of Tort
Law of contract

Contract involves some form of binding agreement between the parties, such as a contract for
the purchase of goods or services, or some form of credit sale.
There is no need to prove fault by the seller; non-conformance to contract specifications or
implied terms is sufficient. Hence even if the seller is not to blame, he may still be successfully
sued.
The problem with this route is that a party must show privity in order to pursue litigation. In
other words only those parties involved in the contract can sue. If a third party has been
affected no remedy is provided.

Law of tort/ Law of delict

For a victim not party to a contract, for example a bystander, or the recipient of a gift, then a
claim must be followed through the law of tort.
Generally, this will involve negligence. However, to pursue such a claim the injured party must
show:
1. the defendant owed the plaintiff a duty of care;

2. the defendant was in breach of that duty;

3. the breach of duty caused damage

The main problem with this route is that the litigant must show that on the balance of
probabilities there has been a lack of reasonable care.
Donoghue v Stevenson [1932] AC 562 House of Lords

Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice
cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue
poured half the contents of the bottle over her ice cream and also drank some from the bottle. After
eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream
and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result.
She commenced a claim against the manufacturer of the ginger beer.

Held:

Her claim was successful. This case established the modern law of negligence and established the
neighbor test.

Duty of care refers to the circumstances and relationships which the law recognizes as giving rise to a
legal duty to take care. A failure to take such care can result in the defendant being liable to pay
damages to a party who is injured or suffers loss as a result of their breach of duty of care. Therefore, it
is necessary for the claimant to establish that the defendant owed them a duty of care. The existence of
a duty of care depends on the type of loss and different legal tests apply to different losses. The
existence of a duty of care for personal injury and property damage was originally decided by Lord
Atkin's neighbor test from Donoghue v Stevenson.

The neighbor test:

Lord Atkin:

"The rule that you are to love your neighbor becomes in law you must not injure your neighbor; and the
lawyer's question " Who is my ' neighbor?" receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who
then in law is my neighbor? The answer seems to be persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected when I am directing
my mind to the acts or omissions which are called in question."