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Tort plan defective
Law of Tort (LAW209)
University of Liverpool
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This essay shall discuss the introducion of the Consumer Protecion Act 1987 (CPA) and whether it achieves its key aim of ataining a ‘no-fault liability system’ by implemening the Council Direcive 85/374/EEC. By such discussions, we will look on a balance whether there are any serious doubts as to the law governing defecive products is absolutely strictly liable.
Prior to the CPA being passed, an individual injured by a defecive product had to bring an acion in the tort of negligence. Here they would be required to prove that the defendant owed them a duty of care, the duty was breached and that the breach caused damage that is not too remote. The weaknesses of the common law were not exposed on a large scale unil one of the darkest moments in pharmaceuical history, namely the Thalidomide scandal that occurred in the mid-20th century. Thalidomide was marketed as a mild sleeping pill but unfortunately caused babies to be born with malfuncioning limbs, which resulted in many unsuccessful claims under the law of negligence due to evidenial diiculies in proving causaion. This triggered a process of law reform, where the Report of the Pearson Commission [1978] stated that ‘producers should be strictly liable in tort for injury caused by defecive products.’ The report proposed that tort is ‘alicted with delay, speculaive in outcome, horrendously expensive to operate and selecive in its reach of beneiciaries’. The law of negligence was unable to consider interests of person for whom the acion has been does not account for fact the producer gains beneit from his products and can absorb losses they may occasion. Lord Pearson Commission’s report, and personally believed that torts’ tradiional role of compensaion had become outdated with the rise of the welfare state since the end of WW2.
Following the reforms was the introducion of the CPA, where producers of defecive products are strictly liable for harm caused to consumers. Strict liability is the imposiion of liability which does not depend on an intent to do harm, we see fault being removed. The CPA implemented the Direcive that established the principle of such strict liability across Member States of the European Union. However, as Alessandro Stoppa proposes, serious doubts can be raised as to whether we have achieved this fundamental policy of the Direcive.
Claims under the common law tort of negligence as sill allowed as an avenue to sue a manufacturer of a defecive product. This generally undermines the idea of an absolute strict liability system by allowing claims to be brought under negligence, as it allows the manufacturer to escape liability if the claimant cannot prove that the manufacturer did not take reasonable care. Negligence claims are both diicult and expensive for the claimant due to the diiculty of accessing informaion about producion of products. This can be especially diicult when there are circumstances in which the manufacturer may not even know such informaion ( Grant v Australian Kniing Mills ). Despite these complicaions, the Pearson Commission 1978 proposed a mixed system of a no-fault based system and common law negligence system, it was assumed that a full strict liability stance was not taken presumably due to fears of cost (John Fleming 1979. When considering if the tort for personal injury should be abolished completely, the Commission said such aboliion would ‘deprive many injured people of a potenial source of compensaion without puing anything in its place. They said vicims would be worse of than if they had sufered injury in other circumstances. Following A v Naional Blood Authority , where paients contracted Hepaiis B following NHS blood transfusions, it can be suggested that cases concerning issues of healthcare and wellbeing should be a quesion of clinical negligence rather than product liability (Hodges [2001]). We can therefore conclude that strict liability and the common law are both needed together, and as said by Stoppa (1992), a two-pronged test as such would not solve all the problems inherent to product liability, but it would appear to be the best soluion under the CPA.
‘Defect’ is deined under s3(1) as a product that ‘is not such as persons generally are enitled to expect’. This is vague and ariicial (Tef [2010]) and we can ask what people are actually enitled to expect. As Stapleton [1994] says, surely a deiniion should answer this. This ambiguity is expanded upon in s3(2), where the CPA ask us to consider ‘all the circumstances’ when working out what consumers reasonably expect. Sill quite broad, this can be interpreted in two ways: through a negligence-based interpretaion or through a strict-liability based interpretaion. By having a system in which Judges are given the authority to choose whether to take a negligence or strict liability approach, we have uncertainty and thus a non-absolute no-fault system. Claims under CPA are actually quite rare, and it took 12 years before the Act was actually brought before the court (Giliker [2004]). Cases such as Richardson v LRC Products , that have been brought under the CPA tend to support the theory that the CPA funcions in a negligence based way. Under s3(2), all the circumstances includes, inter alia, the ime product was produced, reasonable use of product and the ime the product was supplied. We have a system that evaluates the safety of a product’s design and the adequacy of warnings– this in itself will raise serious doubts as to the achievement of the Direcive that Stoppa (1992) speaks of.
Whilst we have defences under the CPA, it can be proposed that the United Kingdom will never have a strict liability system that is absolute. Secion 4(1)(e) of the CPA, the ‘developmental risks’ defence, informs us that there will be a defence if the state of scieniic or technical knowledge at the ime of supply was not suicient enough to enable the producer of a product of similar descripion to discover the defect. However, if we look at the wording of the Direcive in which this defence was based on, it tells us that there must be actual undiscoverability of that product. The version of this defence under the CPA is more accommodaing towards manufacturers by broadening the scope in allowing undiscoverability of similar products. When producing the CPA, s4(1)(e) could have been legislated in a way that mirrors the Direcive directly and thus incorporates an absolute no-fault system.
It could be suggested that in order to have a no-fault system that is absolute, we would need a system like that of New Zealand. As suggested by Miller and Lovell [1997], such a system would be an incenive for future plainifs to engage in previously expensive and inconvenient lawsuits under negligence. However, whether this system would work in the United Kingdom is a contenious issue. The United Kingdom’s exit from the European Union may signal future reform for this area of law.
In conclusion to all the above points, it would appear fair to say that doubts can be raised as to the achievement of the Direcive’s aim of a no-fault liability system. It can certainly be said that whilst we sill have defences available under the CPA, we without a doubt do not have a strict ,liability system that is absolute. We can recognise that the CPA tries to incorporate some of the fundamental aspects of the Direcive, however, to say that we have a system that mirrors the no-fault liability aim of the Direcive is dubious.
Tort plan defective
Module: Law of Tort (LAW209)
University: University of Liverpool
