Product Liability

What does s. 45(1) CPA 1987 say?

'goods' are defined to includes substances ('any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of a vapour, and includes substances that are comprised in or mixed with other goods), growing crops and things comprised in land by virtue of being attached to it and any ship, aircraft or vehicle -A broad defintion -Including, ex. blood products: A v National Blood Authority [2001] 3 All ER 289 -Historically, understood as tangible property, a limitation: Computer Associates UK Ltd v Software Incubator Ltd [2018] EWCA Civ 518 ➤Challenged by recognition of software property: Software Incubator Ltd v Computer Associates (UK) Ltd [2022] 2 CMLR 3 ➤Divide between goods and services: VI v KRONE [2021] (

What does s. 1(2) CPA 1987 say?

'product' means any goods or electricity and, subject to subsection (3) below, includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise -Goods defined in s. 45(1) CPA 1987

Actionable damage?

1. C suffer physical injury/and or damage to property -Actionable! Duty of care easily established under Donoghue v Stevenson 2. Pure Economic Loss: Mere failure of the product itself, not causing physical injury/and or damage to property -Not actionable! No tortious duty of care established, only recoverable under a breach of contract ➤No recovery tortious recovery for the pure economic loss deriving from the defective product: Muirhead v Industrial Tank Specialties Ltd [1986] QB 507 ➤Mere failure of the product itself is non-actionable pure economic loss: The Rebecca Elaine [1999] 2 Lloyd's Rep 1 -Only exceptionally does the law recognise a duty of care for pure economic loss: Assumption of Responsibility under Hedley Byrne Note: Difficulty in distinguishing between property damage and pure economic loss where it involves complex structures -Damage to other parts, is the defect inherent in the product by being supplied together (meaning only economic loss), is was the defect caused by the addition of another part (property damage to the original structure)? ➤Obiter examples, no decision: Aswan Engineering Establishement Co v Lupdine Ltd [1987] 1 WLR 1 ➤Pure Economic Loss for an Inherently Defective Product: Barcardi-Martini v Thomas Hardy Packaging [2002] 2 Lloyd's Rep 379 (cannot say that carbon dioxide component damaged other components of the drink)

Justification for strict liability for product defects?

1. Economic grounds: Internalising production costs on the producer -Harm consumers if not, and can spread losses by insurance or lower shareholder dividends etc. 2. Also EU factors of harmonisation at play: If we had different rules it would affect competitiveness in market -Brexit, no longer relevant

Which are the ways a manufacturer can breach their duty of care?

1. Manufacturing Defect: Easy to prove -Product has not come out as supposed to come out -Res ipsa loquitur: The principle that the mere occurrence of some types of accident is sufficient to imply negligence (as manufacturers are aware that the product has not come out as intended) ➤Ex. Carroll v Fearon [1998] PIQR 416 2. Design Defect: More difficult -Trade-off between "making safe" and preserving utility of the product: Ex. knife being inherently dangerous) -Thus, manufacturers make a warning of the quality of the product 3. Failure to Warn -Lack proper description (a) Against Inherently dangerous goods: Ex. knifes (b) Defect is discovered Post-Sale (no negligence in manufacturing): Because duty is ongoing ➤Must take reasonable steps to warn: Hobbs (Farms) Ltd v Baxenden Chemical Co [1992] 1 Lloyd's Rep 54

What happened in Wilkes v Depuy International Ltd [2016] EWHC 3096 (QB)?

A good illustration of the application of the defectiveness test to a standard product Facts -The claimant had undergone a surgical procedure to insert an artificial left hip joint made up of metal components manufactured by the defendant -One of the components (called a "C-Stem") was a steel femoral shaft, the neck of which featured a fine groove at the point where it was connected to the metal femoral head -Three years after the procedure was undertaken, a fatigue fracture occurred in the grooved area of the neck of the C-Stem -The claimant sued the defendant both in common law negligence and under the 1987 Act, alleging that there was a defect in the C-Stem because the groove created an excessive concentration of stress at its neck -The defendant denied that the C-Stem was defective, arguing that the groove was a beneficial feature, because (inter alia) it enabled the C-Stem to be used with both metal and ceramic femoral heads Issue -Whether, having regard to the fracture of the C-Stem, the defendant was liable to the claimant under the provisions of the 1987 Act? Decision -Hickinbottom J rejected the claimant's argument -[177] It will be apparent to those familiar with the law in this area that the facts of Wilkes differed from those of the National Blood Authority case in a crucial respect, Wilkes was a "standard product" case, in that the allegation was not (or at any rate not only) that there was a defect in the particular C-Stem that had been used in the claimant's operation, but that there was something wrong with the design of the component, so that the entire product range was defective -Burton J. drew in the earlier case between "standard" and "non-standard" products, a distinction along these lines (usually framed in terms of "design" and "manufacturing" defects) is rightly viewed as fundamental to the analysis of the defectiveness issue in strict product liability regimes in other jurisdictions, since a coherent approach to that question seems to be impossible without it Considerations in applying the feasible alternative design test (1) that the alternative design proposed by the claimant might have proved more expensive, and made the prosthesis less comfortable (2) that other producers had made the same design choice (3) that the product had received the necessary regulatory approvals (4) that adequate warning was given of the fracture risk, and factors that increased it (5) that the risk was small, and there was no evidence that the product carried a higher such risk than equivalent products (6) that the consequences of a fracture were relatively limited Key ratio from judgment: 1. The safety that persons generally are entitled to expect is a question of law 2. The circumstances to be considered under s. 3 should not be limited (no mandate in the legislation for this) -Safety of necessity is a relative concept and a very fact-specific enquiry 3. Avoidability can be considered as part of the overall assessment 4. Did not accept a rigid classification of standard/non-standard as helpful

What happened in Gee v Depuy International Limited [2018] EWHC 1208 (QB)?

Andrews J concluded that the inherent propensity of metal-on-metal artificial hips to shed metal debris through normal use, thereby potentially triggering an immunological reaction in some patients, was not a "defect" under the Act

Which are the two actions available to product liability (problem question structure)?

Apply both: Unless very clearly no negligence, then no CL -Note: C cannot recover in both Common Law: History below! 1. Actionable Damage? -Physical injury or property damage -Not pure economic loss -Presume Donoghue duty as exists between manufacturer and consumer -Copy and paste: "History of common law product liability?" 2. Breach? -Usually the manufacturer but can also be repairers, installers, retailers and suppliers -Manufacturing defect, design defect, failure to warn -Copy and paste: "Ways a manufacturer can breach their duty of care?" 3. Defences? -Negligence defences (not here) Statutory: Consumer Protection Act 1987 -Created in accord with Directive 85/374, justification below! 1. Is it a Product under s. 1(2) CPA? 2. Who is Liable under s. 2 CPA? 3. Product Defect under s. 3 CPA? -Strict liability: The core of the strict liability regime established by the 1987 Act is to be found in the proposition that the damage must be caused by a defect in the product (not, as in negligence, by the fault of the defendant) -Distinction between standard and non-standard products: Might be a relevant factor in deciding a defect on the basis of the core cases, below! 4. Defences under s. 4 CPA? 5. Damage giving rise liability: s. 5 CPA -Provides limits on what is actually regarded as damage: Threshold of minimal of £275 damage (s.5(4) CPA)

History of common law product liability?

Based on negligence of the manufacturer/producer -Modern law of negligence has much of its development in product cases ➤Ex. Donoghue v Stevenson [1932] AC 526 ›Partial rejection of the privity of contract fallacy: Manufacturer owes duty in contract only to other contracting party ›Partial because the only person that can sue in contract is still simply the other party, but created an independent claim of duty of care in tort ›So, the mere fact that a party owed a contractual duty didn't preclude them from owing a duty in tort to consumers ➤Affirmed: Grant v Australian Knitting Mills Pty Ltd [1936] AC 385

What does s. 5 CPA say?

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) Complex Structures: 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) Excludes liability for commercial or businesses uses 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) Threshold: Must suffer minimum of £275

Distinction between standard (design defect) and non-standard (manufacturing defect) products

Distinction established: A v National Blood Authority Although downplayed: Wilkes v DePuy International Ltd -Still accepted that it was a relevant consideration when addressing the defectiveness issue -Design defects, Standard: The product was manufactured correctly, but the defect is inherent in the design of the product itself -Manufacturing defects, Non-standard: The product departs from its intended design, it is not in the condition in which the manufacturer intended it to be distributed to the public To determine which category the product is: Done most easily by comparing the offending product with other products of the same type or series produced by that producer ➤[67] in A v National Blood Authority [2001] 3 All ER 289 ›Approach to defect in each is the same, but easier to satisfy in relation to non-standard products as the design is wrong ›Go to next yellow! Notes on A v National Blood Authority [2001] 3 All ER 289 (a non-standard product) -Avoidability of risk is irrelevant -Key Question: To the expectation of safety of the product, not what steps D had taken to ensure the product was safe -Arguably conflicted with previous authority considering avoidability as big factor for finding defective product -Rigid classification between standard/non-standard products ➤Liability because of existence of an alternative design not giving rise to the same risk causing C harm: Abouzaid v Mothercare (UK) Ltd [2000] All ER 246 ➤No liability because no alternative to preserve utility of the hot coffee: Bogle v McDonald's Restaurants Ltd [2002] EWHC (QB) 490) ➤Contrast: Wilkes v Depuy International Ltd [2016] EWHC 3096 (QB) (a standard product) -Entitled expectation of safety is a question of law, for the judge to determine was standard to be held to -Circumstances to be considered should not be limited -Avoidability of risk is apart of the overall assessment -Safety is a relative concept -Did not accepts a rigid classification between standard/non-standard products, however still relevant ›Wilkes Preferred: Gee v Depuy International Limited [2018] EWHC 1208 (QB); Hastings v Finsbury Orthopaedics Ltd [2022] UKSC 19 -How the law is now interpreted: Working out what nature of defect you have is relevant for determining the relevance of Avoidability as a factor in the defect inquiry in s. 3 -Non-standard product case: Avoidability of risk irrelevant ›Expected safety is the intended design which is the safe comparable product ›Here, the deviation from the design specification means the level of safety intended is failed to be offered ›Hence, defectiveness is easily established through the objective comparison: It is "likely to be straightforward" employing objective standa (Burton J at [66] in National Blood) ›But, Burton J refused to accept that non-standard products were automatically defective ›It might be held not to be defective on the basis that the public at large accepted that a proportion of products of the same type would be flawed ›However, this possible exception is problematic, since it seems to look to what the public actually expect, rather than what they are entitled to expect ›Preferable if the courts were to adopt a simpler approach, under which a manufacturing defect would always render a product defective for the purposes of the 1987 Act (Winfield & Jolowicz, Ch 11 p. 30) -Standard (design) product case: Avoidability of risk relevant ›Here there is no objective standard against which the product can be assessed: its features are the result of conscious choices by the producer, which the court is being asked to second-guess ›Here, expected safety is relative (Wilkes, [65]), as no product is perfectly safe, because safety must be traded off against cost and convenience ›But for standard products, expected safety is relative (Wilkes, [65]), as no product is perfectly safe, because safety must be traded off against cost and convenience ›Key Question, Wilkes [66]: Whether the risks associated with the product in its present form are outweighed by the benefits it brings? ›Testing the risk-benefit balance in a design defect case: Whether the risks of harm posed by the product could have been avoided or materially reduced by the adoption of a feasible alternative design? ➤Ex. Abouzaid v Mothercare (UK) Ltd [2000] All ER 246, where it was held that a pushchair accessory was defective since the risk of eye injury from a hook on an elastic strap could have been avoided by using a non-elasticated method of attachment ›It follows that, unlike in non-standard product cases, "the ease and extent to which a risk can be eliminated or mitigated" may be relevant in a standard product case (Wilkes, [89]) ›In applying the feasible alternative design test, the court should take into account the cost and general feasibility of the alternative design, the degree to which it would have obviated the risk, and any impact it would have had on the effectiveness of the product ›Comparisons can usefully be made with similar products on the market, though it does not follow from the fact that a particular product is "worst in class" that it is defective (Gee v DePuy International Ltd [2018] EWHC 1208 (QB), [463]) ›Liability will usually be imposed if applicable mandatory standards or regulatory requirements have been violated ›Conversely, it may be difficult to establish that a product which complies with such standards or requirements is defective (Wilkes, [98]) A good illustration of the application of the defectiveness test to a standard product ›Price is obviously a significant factor in legitimate expectation, and may well be material in the comparative process (National Blood, [71]) ›For degradable products, the consumer cannot expect it to never fail, but the question is whether the product degraded before the common expectation of failure ›Ex. expect failure at 10 years, but product failed at 8 ➤Two limb approach for replacement hip: Hastings v Finsbury Orthopaedics [2022] UKSC 19 ›[15]: In determining 'entitled expectation', court knows everything about the product, even information that has become available subsequent to market placing

What happened in Hobbs (Farms) Ltd v Baxenden Chemical Co [1992] 1 Lloyd's Rep 54?

Facts -Action involved a fire which spread due to foam insulation in a hangar P had rented -Foam was sold as 'self-extinguishing' -Manufacturer later aware that this was an inaccurate description Decision -The manufacturer's duty of care did not cease when the goods were sold and if it realised that an omission to warn past customers about potential injury might result in injury to them it must take reasonable steps to warn them, however lacking in negligence it was at the time the goods were sold

What happened in Muirhead v Industrial Tank Specialties Ltd [1986] QB 507?

Facts -C an enterprising fishmonger wanted to keep lobsters in tanks -C bought tanks from T (obtained them from several intermediaries), which were manufactured by French ITS (D) -The tanks from D failed to work properly, the pumps did not provide sufficient oxygen, and the lobsters died -Sued for (1) the failure of the pumps, and (2) the death of the lobsters Decision (1) Flaw in pump was a defect in quality: Pure economic loss can only be recovered under contract (which C did not have with D) (2) But for the harm caused to the "other property" the lobsters, due to the defect in quality: Can be recovered under Donoghue (tort duty) Outcome -In claims of product liability tort (defective products), pure economic loss is not recoverable -Robert Goff LJ: 'As I see the present case it must fall within those cases... of ordinary purchase of chattels, in which the buyer, if he seeks to recover damages for purely economic loss arising from defects in the goods, must on the law as it stands look to his immediate vendor and not to the ultimate manufacturer for his remedy.'

What does s. 3(2) CPA say?

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

What happened in Computer Associates UK Ltd v Software Incubator Ltd [2018] EWCA Civ 518?

Issue -Whether the download of software from a link provided via email was 'goods'? Decision -No: Accepted the traditional tangible/intangible distinction to identify goods

What does s. 2 CPA say?

Liability for defective products (1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage (2) This subsection applies to— (a) The producer -Defined in s. 1(2): as the manufacturer, if not manufactured but won or abstracted, the person who won or abstracted it, or in the case of a product which has not been manufactured, won or abstracted but essential characteristics of which are attributable to an industrial or other process having been carried out (for example, in relation to agricultural produce), the person who carried out that process (ex. canning food) (b) The "own brander": Parties didn't manufacture, but label themselves as such -Ex: Supermarkets' own label -'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' (c) The importer -Any person who has imported the product into the UK, in the course of any business of his, to supply it to another (3) The supplier: Subject as aforesaid, where any damage is caused wholly or partly by a defect in a product, any person who supplied the product (whether to the person who suffered the damage, to the producer of any product in which the product in question is comprised or to any other person) shall be liable for the damage if— (a) The person who suffered the damage requests the supplier to identify one or more of the persons (whether still in existence or not) whom should be liable -To whom subsection (2) above applies in relation to the product (b) that request is 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 (c) 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

What are the defences to liability for product defects?

s. 4 CPA (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) Defect is attributable to compliance with any requirement imposed by or under any enactment or with any [F1retained] [F2EU] 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) The Accessibility Defence: 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 ➤Wording consistent with directive: Commission v United Kingdom [1997] ECR I-2649: The Directive required the producer to show that the risk was unforeseeable taking into account 'the most advanced level' of scientific and technical knowledge that is accessible (even if it is a single or minority view) -Advocate General at [24]: In such a situation, it would be unrealistic, I would say unreasonable, to take the view that the study published in Chinese has the same chances as the other of being known to a European product manufacturer. So, I do not consider that in such a case a producer could be held liable -[49] in National Blood: To regard as Manchuria perhaps an unpublished document or unpublished research not available to the general public, retained within the laboratory or research department of a particular company -UK Case at [29]: Does not concern knowledge of individuals "The producer of a defective product must prove that the objective state of scientific and technical knowledge, including the most advanced level of such knowledge, at the time when the product was put into circulation, was not such as to enable the existence of a defect to be discovered." ➤Unforeseeable requirement affirmed: A v National Blood Authority -[49]: The relevant time to assess the state of such scientific and technical knowledge is the time when the product was put into circulation -[64]: The significance seems to be as follows. Article 7(e) is the escape route (if available at all) for the producer who has done all he could reasonably be expected to do (and more); and yet that route is emphatically very restricted, because of the purpose and effect of the Directive (see particularly paragraphs 26, 36 and 38 of the European Court's judgment) -[74]: The analysis of Article 7(e), with the guidance of Commission v UK , seems to me to be entirely clear. If there is a known risk, i.e., the existence of the defect is known or should have been known in the light of non-Manchurianly accessible information, then the producer continues to produce and supply at his own risk (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.

What happened in Hastings v Finsbury Orthopaedics [2022] UKSC 19?

Facts -C had undergone a total hip replacement in 2009 which involved a metal on metal (MoM) prosthesis manufactured by the respondents -In 2012, he underwent revision of the implant, and sought damages under s. 2 of the Act, claiming that the product was defective -C claimed that a hip replacement prosthesis was defective within the meaning of the Consumer Protection Act 1987 s. 3 -C relied on expressions of serious professional concern by the orthopaedic community; the conduct of the respondents in withdrawing the product from the market; and notices and alerts which had been issued by regulators and the respondents -The Lord Ordinary accepted that those matters constituted powerful prima facie evidence that the products were not performing in accordance with expectation -However, he considered that that was not necessarily the same as not performing in accordance with entitled expectation -He found that the appellant had not proved, on the balance of probabilities, that at the time his prosthesis was supplied the use of the product gave rise to an increased risk that revision surgery, in the event of its failure, would be unlikely to achieve as satisfactory an outcome as if the primary implant had been one of the existing alternatives -C appealed Decision -Appeal dismissed -Parties agreed that the 'entitled expectation' test in s. 3 required an evaluation of (i) the time to revision or 'survivorship' of the implant, and (ii) the prospects of success of revision surgery -[19] In this case the nature of the product is such that there can be no entitlement to an absolute level of safety. It is natural for a prosthesis of this sort to wear and to shed metal debris that can cause soft tissue damage, so this of itself cannot be a defect (see Gee v DePuy International Ltd , per Andrews J, para 117). The test of entitled expectation was agreed by the parties and held by the Lord Ordinary (para 119) to be whether, subject to de minimis considerations, the level of safety of the MITCH-Accolade product would not be worse, when measured by appropriate criteria, than existing non-MoM products that would otherwise have been used -[15]: In determining 'entitled expectation', court knows everything about the product, even information that has become available subsequent to market placing

What happened in Carroll v Fearon [1998] PIQR 416?

Facts -C injured when tyre on another car broke off Decision -Found to be defect in manufacturing -Not necessary to prove the exact employee who was at fault -'However once it was established that the tyre disintegrated because of an identified fault in the course of its manufacture the judge had to decide whether this fault was the result of negligence at Dunlop's factory. He did not have to identify any individual or group of employees or the acts or omissions which resulted in inadequate rubber penetration of the cords. If the manufacturing process had worked as intended this defect should not have been present.'

What happened in A v National Blood Authority [2001] 3 All ER 289?

Facts -Ds were fourteen regional blood transfusion centres controlled and administered by Regional Health Authorities -Supply of blood infected with Hepatitis C virus: At the time, while existence of the virus was known, no way of testing it -Ds argued: the consumers would expect that we would have done everything possible Issue -Is this a defective product? -What are persons generally entitles to expect under s. 3(1)? -As this is what the defect depended on Decision -Argument rejected: There was a breach -This concerned a rogue or "non-standard" product (viz., a blood product infected with the Hepatitis C virus) -Otherwise referred to as a manufacturing issue -Burton J: This was not supposed to be a negligence standard, and this argument is effectively a negligence standard -The avoidability of the risk was not a relevant circumstance to be considered under s. 3 -The key question: Was as to the expectation of safety of the product, not what steps D had taken to ensure the product was safe -Drew a distinction between standard and non-standard products -[36]: Some Community jurisdictions in implementing the Directive have specifically provided that there will be liability for 'non-standard' products, i.e., that such will automatically be defective within Article 6: Italy and Spain have done so by express legislation, and Dr Weber, in Produkthaftung im Belgischen Recht 1988 at 219-20, considers that that is now the position in Belgium also as a result of the implementation of the Directive. -[37]: Were the infected bags of blood in this case non-standard products? The Claimants say yes — 99 out of 100 are safe and uninfected as intended. The Defendants say no — all blood, derived as it is from a natural raw material, albeit then processed, is inherently risky -But the Claimants assert that persons generally are entitled to expect that all blood and blood products used for medical treatment are safe, and that they will not receive the unsafe 1 in 100. The Claimants say that this will only not be the case if the public does know and expect that blood, like cigarettes or alcohol, is or may be defective, not because the public's expectation is limited to an expectation that legitimately expectable safety precautions will have been taken. -[38]: In a jurisdiction where, unlike Spain and Italy, and perhaps Belgium, no legislative distinction has been drawn between standard and non-standard products, the distinction, even if I were to conclude that the blood bags in this case are non-standard products, would not be absolute. Non-standard products would not be automatically defective. A product may be unsafe because it differs from the standard product, or because the standard product itself is unsafe, or at risk of being unsafe. It may however be easier to prove defectiveness if the product differs from the standard product. -[41]: The approach to whether non-standard and standard products are defective may however be different, primarily because non-standard products fall to be compared principally with the standard product, while standard products, if compared at all, will be compared with other products on the market. -[2]: It is conceded for the purpose of these proceedings that the blood or blood products by which the Claimants were infected are products within the meaning of the CPA and the Directive, and that the Defendants' production of blood was, for the purpose of the Directive, an industrial process. [31]: iii. The onus of proof is upon the Claimants to prove the product to be defective. iv. The question to be resolved is the safety or the degree or level of safety or safeness which persons generally are entitled to expect The test is not that of an absolute level of safety, nor an absolute liability for any injury caused by the harmful characteristic. v. In the assessment of that question the expectation is that of persons generally, or the public at large. vi. The safety is not what is actually expected by the public at large, but what they are entitled to expect. ii. The Court decides what the public is entitled to expect viii. There are some products, which have harmful characteristics in whole or in part, about which no complaint can be made. The examples that were used of products which have obviously dangerous characteristics by virtue of their very nature or intended use, were, on the one hand knives, guns and poisons and on the other hand alcohol, tobacco, perhaps foie gras ix. Article 6.2 means that such test must be applied as at the date when the product is put into circulation, i.e., tested against the safety then to be expected. It is apparent that a product may be compared with other products said to be safer, but will not be condemned simply because another safer product is subsequently put into circulation. x. There is also important factual common ground. It has, as set out in paragraph 8 above, been known, at least since the 1970s, by blood producers and the medical profession, primarily blood specialists, hepatologists and epidemiologists, that there was a problem of infection by Hep C (formerly NANBH) in transfused blood, and that a percentage of such blood — in the United Kingdom thought to be between 1% and 3% — was infected with NANBH/Hep C. The Claimants say that such knowledge by the medical profession and blood producers is on the one hand irrelevant to Article 6, and to the public's expectation, and legitimate expectation, and on the other rules out the producers from the protection of Article 7(e). The Defendants say that such risks so known, which they allege to be impossible to avoid or prevent, affect the legitimate expectation of the public, such as to exclude Article 6, and, because they were unavoidable, qualify them, if necessary, for Article 7(e). -[33]: Article 6 must then be considered against the background of this summary of the issues. In the establishment of the level of safety, Article 6 provides that the Court (on behalf of the public at large) takes into account all circumstances, including: i. Presentation , i.e., the way in which the product is presented, e.g., warnings and price. As set out above, the expanded wording of s. 3(2)(a) of the CPA is helpful ii. The use to which the product could reasonably be expected to be put, e.g.: a. If the product is not a familiar or usual one, such as a scrid, it will be necessary to find out what its expected or foreseeable use is b. If it is expected and required to be dangerous in respect of its expected use, e.g., a gun, then complaint cannot be made of that dangerousness; but complaint could still be made of a different dangerousness, such as if it exploded on the trigger being pulled c. If it is not expected to be dangerous in respect of its expected use, but the use to which it is put is unexpected, then it may not be defective iii. The time when the product is circulated, for example when the product is out of date or stale. -[50]: The crux of the dispute therefore is as follows: i. The Claimants say that once the defect in blood is known about, as it was, it is a known risk. A known but unavoidable risk does not qualify for Article 7(e). It may qualify for Article 6, not because it was unavoidable (see their contentions set out in paragraph 35 above) but if it could be shown that, because the risk is known , it was accepted, and lowered public expectations — like poison and alcohol. But otherwise once it is known, then the product cannot be supplied, or is supplied at the producer's risk and has no protection from Article 7(e) ii. The Defendants say that if a risk is unavoidable, it falls within Article 6 (see their contentions in paragraph 35 above) but, if not, then it can still qualify for protection under Article 7(e), if non-Manchurianly accessible information cannot enable a producer to discover the defect in the particular product -[55]: I do not consider it to be arguable that the consumer had an actual expectation that blood being supplied to him was not 100% clean, nor do I conclude that he had knowledge that it was, or was likely to be, infected with Hepatitis C. It is not seriously argued by the Defendants, notwithstanding some few newspaper cuttings which were referred to, that there was any public understanding or acceptance of the infection of transfused blood by Hepatitis C. Doctors and surgeons knew, but did not tell their patients unless asked, and were very rarely asked. It was certainly, in my judgment, not known and accepted by society that there was such a risk, which was thus not sozialadäquat (socially acceptable) -[56]: In my judgment it is as inappropriate to propose that the public should not 'expect the unattainable' — in the sense of tests or precautions which are impossible — at least unless it is informed as to what is unattainable or impossible, as it is to reformulate the expectation as one that the producer will not have been negligent or will have taken all reasonable steps -[57]: In this context I turn to consider what is intended to be included within 'all circumstances' in Article 6. I am satisfied that this means all relevant circumstances. It is quite plain to me that (albeit that Professor Stapleton has been pessimistic about its success) the Directive was intended to eliminate proof of fault or negligence. I am satisfied that this was not simply a legal consequence, but that it was also intended to make it easier for claimants to prove their case, such that not only would a consumer not have to prove that the producer did not take reasonable steps, or all reasonable steps, to comply with his duty of care, but also that the producer did not take all legitimately expectable steps either. -[63]: I conclude therefore that avoidability is not one of the circumstances to be taken into account within Article 6 Non-standard Products -[68]: The circumstances specified in Article 6 may obviously be relevant — the product may be a second — as well as the circumstances of the supply. But it seems to me that the primary issue in relation to a non-standard product may be whether the public at large accepted the non-standard nature of the product — i.e., they accept that a proportion of the products is defective (as I have concluded they do not in this case). That, as discussed, is not of course the end of it, because the question is of legitimate expectation, and the Court may conclude that the expectation of the public is too high or too low. But manifestly questions such as warnings and presentations will be in the forefront. However I conclude that the following are not relevant: i. Avoidability of the harmful characteristic — i.e. impossibility or unavoidability in relation to precautionary measures. ii. The impracticality, cost or difficulty of taking such measures. iii. The benefit to society or utility of the product: (except in the context of whether — with full information and proper knowledge — the public does and ought to accept the risk). -[79]: The blood products in this case were non-standard products, and were unsafe by virtue of the harmful characteristics which they had and which the standard products did not have -[80]: They were not ipso facto defective (an expression used from time to time by the Claimants) but were defective because I am satisfied that the public at large was entitled to expect that the blood transfused to them would be free from infection. There were no warnings and no material publicity, certainly none officially initiated by or for the benefit of the Defendants, and the knowledge of the medical profession, not materially or at all shared with the consumer, is of no relevance Outcome -Gives the act real force, quite a radical decision -In line with the purpose of having strict liability

What happened in Vi v KRONE [2021]?

Facts -Incorrect health advice in a newspaper Decision -Neither the advice itself nor the newspaper with the advice in it caught under Directive 85/374 (liability for defective products) -Division between goods and services affirmed -Incorrect health advice was a failure of service -[35], On the newspaper: 'the defective nature of a product is determined on the basis of certain characteristics inherent to the product itself and related to, inter alia, its presentation, its use and the time when it was put into circulation' -[36]: 'In the present case, it must be observed that the service in question, namely the provision of inaccurate advice, is unrelated to the printed newspaper, which constitutes its medium. More specifically, that service does not concern either the presentation or the use of the latter. Therefore, that service is not part of the inherent characteristics of the printed newspaper which alone permit an assessment as to whether the product is defective' -The newspaper was not defective: Separation between information in newspaper and itself! Commentary -Note draft directive amending 85/374 considering digital economy making its way through EU institutions -Digital property challenging traditional view of goods as tangible

What happened in Aswan Engineering Establishement Co v Lupdine Ltd [1987] 1 WLR 1?

Facts -Waterproof compound produced by D, stored in pails by B on a Kuwait dock -The pails melted and the compound was lost (due to T's negligence) -Tripartite case: Purchaser (C) buys from intermediary (who bought from D), and is now suing manufacturer (D) Issue -Can this be claimed as damage to "other property": That the pails damaged the compound? Tort duty would apply! -Or should it be said that the product includes the (1) the pails and (2) the waterproof compound? -Whereby it would be a defective product from the outset and no tortious duty because of pure economic loss (as no assumption of responsibility)! Decision, Obiter -Lloyd LJ: Damage to "other property", recognised difficult distnictions: -Ex. tyre fitted to already having car then exploded -But if defected tyre and car supplied together at the same time: Do we say defective car (purely economic loss, no duty of care), or car with a defective tyre? -Another example: Can we say that the cork damaged the wine? -LJ Nicholls: No Outcome -No decision

What happened in Grant v Australian Knitting Mills Pty Ltd [1936] AC 385?

Facts -Wore long johns for a week -Developed severe life threatening dermatitis -Because of excess sulphites, part of the production, should have been washed out but wasn't -D argued (manufacturer not retailer): C had opportunity to inspect the product, distinguishing from Donoghue v Stevenson Decision -Lord Wright (for the Privy Council): This made no difference! -'The presence of the deleterious chemical in the pants, due to negligence in manufacture, was a hidden and latent defect, just as much as were the remains of the snail in the opaque bottle: it could not be detected by any examination that could reasonably be made.' -'Their Lordships do not accept that contention. The decision in Donoghue's Case did not depend on the bottle being stoppered and sealed: the essential point in this regard was that the article should reach the consumer or user subject to the same defect as it had when it left the manufacturer.' -So: Importance is not that there was availability of inspection, but what the inspection would reveal (here the excess sulphites were hidden to the eye upon inspection)

What does s. 3 CPA say?

Meaning of "defect" (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; ➤Relevancy of Warnings: Worsley v Tambrands Ltd [2000] PIQR P95 ➤Compliance with regulatory standard is a factor, not a defence (however if violated likely to point to liability): Wilkes v Depuy International Ltd [2016] EWHC 3096 ➤Ex. Met voluntary regulatory standard, but held to be defective: Tesco Stores Ltd v Pollard [2006] EWCA Civ 393 (b) what might reasonably be expected to be done with or in relation to the product; and -Forseeable misuse: If it was not forseeable, C cannot claim to have an entitled expectation of a measure against the harm suffered since that was not the products intended use (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 General Notes The basic test of defectiveness laid down in the Act—whether the safety of the product is not such as persons generally are entitled to expect—is wholly objective The question then is what persons generally are entitled to expect, not what they actually do expect The eventual content of the test will derive from the decisions made in cases brought under the 1987 Act