Tort Law - Liability for Defective Products
N.B. if the question states that a specific claim should be addressed, pick and
rearrange the order of the three claims from below. Otherwise, go in this order:
contract, CPA, negligence (unless the question specifically says to exclude
breach of contract).
CLAIM CHECKLIST & ORDER
- 1) Breach of contract
- 2) Breach of the Consumer Protection Act 1987
- 3) Liability in negligence
[STEP 1] Introduce breach of contract claim
C v D - Breach of contract
[INSERT C] can consider suing [INSERT D] for breach of contract in contract law.
[INSERT C] must show that:
- They are the buyer of the product (or come within the Contracts (Rights of Third
Parties) Act 1999);
- [INSERT D] is the supplier of the defective product; and
- They have not gone out of business.
[IF PROBLEM CONCERNS A THIRD PARTY - USE BELOW FOR FIRST
CRITERION]
C is not the buyer of [INSERT PRODUCT]. The doctrine of privity of contract means that
only a party can rely on a contract.
An exception is that a third party can acquire rights if (under the C(RTP)A 1999):
- The contract expressly provides that they may acquire a benefit (s.1(1)(a)); or
- the term purports to confer a benefit on them (s 1(1)(b)).
Apply provisions using below if necessary:
- The third party does not have to be expressly identified in the contract by
name if they fall within an identified class (e.g. employee).
- Does not apply if the contract did not intend for the term to be enforceable
by a third party (s.1(2))).
,[STEP 2] Contract - identify type of contract, terms, and breach
Is there a breach of terms?
This is a B2B / B2C sale of goods / supply of goods and services / supply of services
contract.
Express terms:
Express terms are terms specifically agreed by the parties, orally or in writing.
Apply - are there any express terms? If so, what are the possible breaches?
Implied terms:
([INSERT RELEVANT PROVISION FROM BELOW FOR SATISFACTORY QUALITY
AS PER TYPE OF CONTRACT]).
- For contracts for the sale of goods where the seller is selling in the course of a
business, the goods supplied must be of satisfactory quality (s.14(2) SGA 1979).
- For contracts for the supply of goods and services where goods are supplied in
the course of a business, goods must be of satisfactory quality (s.4(2) SGSA
1982).
- For contracts for the sale of goods or for the supply of goods and services from
traders to consumers, goods must be of satisfactory quality (s.9 CRA 2015) and
reasonably fit for their purpose (s.10 CRA 2015).
APPLY - has the relevant term been breached?
[IF THERE IS A BREACH OF EXPRESS OR IMPLIED TERMS] [INSERT D] breaches
this term by [INSERT BREACH ON FACTS]. There is strict liability. [INSERT C] need
not prove fault on the part of the seller, and merely needs to show that the good is not of
satisfactory quality / [WHATEVER ELSE THE TERM STATED].
[STEP 3] Contract - causation and remedies
Causation and remedies in contract law - damages
, C can claim for damages. The aim of damages is to put C in the position they would
have been in had the contract been properly performed (Robinson v Harman).
C may recover all losses that fall within the scope of Hadley v Baxendale:
- Loss arises naturally from the breach; or
- Losses are within the reasonable contemplation of the parties at the time of the
contract.
[IF PEL OCCURS] This includes pure economic loss.
- C cannot claim damages for losses suffered by those not privy to the contract.
CALCULATE DAMAGES
Consumer Protection Act (CPA) 1987
[STEP 1] C v D - CPA 1987
To bring a claim under s.2(1) CPA 1987, C must show on the balance of probabilities
that they have suffered damage caused by a defect in a product.
Damage (s.5 CPA 1987)
Damage includes:
[SELECT & APPLY RELEVANT PROVISIONS TO THE FACTS]
- Death and personal injury without limit (s.5(1)). PI is defined as ‘any disease and
any other impairment of a person’s physical or mental condition’ (s.45 CPA
1987).
- Private property damage, but:
- Only if total damage is £275 or over (s.5(4));
- Damage to business property is not recoverable (s.5(3)), CPA only covers
‘property ordinarily intended for private use, occupation or consumption’
(s.5(3)(a)).
- Unlike in contract law, C cannot claim for pure economic loss, i.e. any damage to
the product itself (s.5(2); applied in Murphy v Brentwood to exclude damages for
the money lost on the sale of a property).
N.B. if the question states that a specific claim should be addressed, pick and
rearrange the order of the three claims from below. Otherwise, go in this order:
contract, CPA, negligence (unless the question specifically says to exclude
breach of contract).
CLAIM CHECKLIST & ORDER
- 1) Breach of contract
- 2) Breach of the Consumer Protection Act 1987
- 3) Liability in negligence
[STEP 1] Introduce breach of contract claim
C v D - Breach of contract
[INSERT C] can consider suing [INSERT D] for breach of contract in contract law.
[INSERT C] must show that:
- They are the buyer of the product (or come within the Contracts (Rights of Third
Parties) Act 1999);
- [INSERT D] is the supplier of the defective product; and
- They have not gone out of business.
[IF PROBLEM CONCERNS A THIRD PARTY - USE BELOW FOR FIRST
CRITERION]
C is not the buyer of [INSERT PRODUCT]. The doctrine of privity of contract means that
only a party can rely on a contract.
An exception is that a third party can acquire rights if (under the C(RTP)A 1999):
- The contract expressly provides that they may acquire a benefit (s.1(1)(a)); or
- the term purports to confer a benefit on them (s 1(1)(b)).
Apply provisions using below if necessary:
- The third party does not have to be expressly identified in the contract by
name if they fall within an identified class (e.g. employee).
- Does not apply if the contract did not intend for the term to be enforceable
by a third party (s.1(2))).
,[STEP 2] Contract - identify type of contract, terms, and breach
Is there a breach of terms?
This is a B2B / B2C sale of goods / supply of goods and services / supply of services
contract.
Express terms:
Express terms are terms specifically agreed by the parties, orally or in writing.
Apply - are there any express terms? If so, what are the possible breaches?
Implied terms:
([INSERT RELEVANT PROVISION FROM BELOW FOR SATISFACTORY QUALITY
AS PER TYPE OF CONTRACT]).
- For contracts for the sale of goods where the seller is selling in the course of a
business, the goods supplied must be of satisfactory quality (s.14(2) SGA 1979).
- For contracts for the supply of goods and services where goods are supplied in
the course of a business, goods must be of satisfactory quality (s.4(2) SGSA
1982).
- For contracts for the sale of goods or for the supply of goods and services from
traders to consumers, goods must be of satisfactory quality (s.9 CRA 2015) and
reasonably fit for their purpose (s.10 CRA 2015).
APPLY - has the relevant term been breached?
[IF THERE IS A BREACH OF EXPRESS OR IMPLIED TERMS] [INSERT D] breaches
this term by [INSERT BREACH ON FACTS]. There is strict liability. [INSERT C] need
not prove fault on the part of the seller, and merely needs to show that the good is not of
satisfactory quality / [WHATEVER ELSE THE TERM STATED].
[STEP 3] Contract - causation and remedies
Causation and remedies in contract law - damages
, C can claim for damages. The aim of damages is to put C in the position they would
have been in had the contract been properly performed (Robinson v Harman).
C may recover all losses that fall within the scope of Hadley v Baxendale:
- Loss arises naturally from the breach; or
- Losses are within the reasonable contemplation of the parties at the time of the
contract.
[IF PEL OCCURS] This includes pure economic loss.
- C cannot claim damages for losses suffered by those not privy to the contract.
CALCULATE DAMAGES
Consumer Protection Act (CPA) 1987
[STEP 1] C v D - CPA 1987
To bring a claim under s.2(1) CPA 1987, C must show on the balance of probabilities
that they have suffered damage caused by a defect in a product.
Damage (s.5 CPA 1987)
Damage includes:
[SELECT & APPLY RELEVANT PROVISIONS TO THE FACTS]
- Death and personal injury without limit (s.5(1)). PI is defined as ‘any disease and
any other impairment of a person’s physical or mental condition’ (s.45 CPA
1987).
- Private property damage, but:
- Only if total damage is £275 or over (s.5(4));
- Damage to business property is not recoverable (s.5(3)), CPA only covers
‘property ordinarily intended for private use, occupation or consumption’
(s.5(3)(a)).
- Unlike in contract law, C cannot claim for pure economic loss, i.e. any damage to
the product itself (s.5(2); applied in Murphy v Brentwood to exclude damages for
the money lost on the sale of a property).
