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Stage 1 – duty of care: physical harm (continued)
Task: Case study on Everett
Here are the brief facts of the case.
In Everett & Harrison v Comojo
2011, the CA applied the 3-part Caparo test to decide whether a
nightclub owed a duty of care to its customers for the violent
actions of a third party.
A minor incident between the claimants and one of the waitresses led
to a member of the club demanding an apology from the claimants.
Later the members' driver arrived and the waitress was concerned by
his manner. She went to tell the bar manager what had happened and
whilst she was there the driver stabbed the claimants several
times. They sued the club’s manager.
Task 1: Write some notes about the main principles that the CA would have applied and what you think about the issues.
Then (and only then) click here.
The CA held that there was proximity between a nightclub and its customers, mainly because the club could regulate who entered and there was an economic relationship between a club and its customers. Harm was foreseeable because it is well known that consuming alcohol can lead to loss of control and violence. The risk of harm was one a club manager would be aware of. As regards whether it was fair, just and reasonable to impose a duty the CA held that the management should owe a duty to keep customers safe from third parties.
Product liability
At common law the consumer is afforded some protection by the tort
of negligence as in Donoghue v Stevenson 1932.
As well as suing in negligence it is also possible to claim for harm
or damage caused by defective goods under the Consumer Protection
Act 1987. This may be better as it gives consumers the right
to claim against a wider range of potential defendants than in
negligence. So, if the manufacturer has gone out of business, it may
be possible to claim against the supplier or the importer of the
goods.
The CPA is also better than suing in tort as it introduces strict
liability. This means that the consumer need not prove fault when
claiming damages for defective or unsafe products. If the product is
defective and has caused damage, then liability will arise under the
Act. There is no need to prove breach of any duty, only that the
defendant is a ‘producer’ or ‘manufacturer’ and the product is
defective.
Task 2: Read this summary of The Consumer Protection Act carefully, making a few notes as you go along.
The summary:
The following people are liable under s 2 of the Act:
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the producer of the product
-
a person who puts his name on the product thus holding himself out to be the manufacturer (e.g. supermarket own-brand goods)
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persons importing a product into the European Union in order to supply another
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a supplier who will not respond to a request to identify the producer
What must you prove?
'Damage' is defined in s 5 as death, personal injury or loss of, or
damage to, private property (i.e. not business property). It must
exceed £275 and damage to the product itself is specifically
excluded.
The Act applies to defective rather than damaged goods, ones that
are unsafe rather than faulty.
S 3 defines a defect as being present when “the safety of the
product is not such as persons generally are entitled to expect”.
In assessing whether the product is unsafe, the court must have
regard to the circumstances, including:
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the manner in which, and the purposes for which, the product has been marketed; any instructions or warnings as to use in the advertising or marketing of the product
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whether the product was put to what may be described as reasonable use.
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how long ago the goods were supplied
Defences
It is a defence under s4 to show any of the following:
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the defect was attributable to a statutory requirement s4(1)(a)
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The product was not supplied to another s4(1)(b)
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The product was not supplied in the course of business s4(1)(c)
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The defect did not exist when the product was supplied s4(1)(d)
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The state of scientific and technical knowledge at the relevant time was such that the defect could not have been discovered s4(1)(e)
This last defence is called the 'development risk defence’ and is somewhat controversial. It appears to take away from the idea of having strict liability and could allow cases like disabilities caused by drugs to slip through the net if it could be shown that the drug manufacturer acted reasonably and was unaware of the existence of the defect at the time of production
-
The defective product was comprised in another and the defect was wholly attributable to the design of the latter product s4(1)(f)
The defence of contributory negligence also
applies
Finally, a term attempting to exclude liability under the Act will
be ineffective.
Now click here to see how much you can remember. When you have completed the exercise, click on the 'Go on' button to return to this page.
Task 3: Apply this Act to the facts of Donoghue v Stevenson and explain why she might be better off now.
Do this task on paper and then click
here to see how you got on.
Applying the Consumer Protection Act, Mrs Donoghue would have to
show that the manufacturer (Stevenson) as the producer and that the
product was defective. A manufacturer of products such as ginger
beer is a producer under S 2. S 3 provides
that there is a defect if the safety of the product is not what
should be expected by people in general. Various circumstances are
looked at and these include
* the marketing and advertising of the product
* instructions and any warnings as to use
* whether the product was put to what may be described as reasonable
use
* how long ago goods were supplied
The first is not relevant here, as to the other matters there is no
indication that the beer contained a warning that it ‘may contain
snails’ and as far as we know she put the ginger beer to normal,
reasonable use. If the goods had been supplied a long time ago the
manufactures may have argued that the seller was to blame for
keeping the drink too long but there is no evidence of this.
She might be better off now because under the CPA there is no need
to prove a breach of duty; only that the safety of the product is
not what should be expected by people in general. This shouldn’t be
difficult because people generally do not expect to be given drinks
containing decomposing snails. Also, under the CPA, liability is
strict, so there is no need to prove negligence, i.e. a breach of
duty. Thus it would not matter how much care Stevenson took, he is
liable once the product is seen as defective.
Key case
