Chapter 10 Outline answers to essay questions

Product liability

‘The objective of strict liability has not been realized in the Consumer Protection Act 1987’.

Discuss.

Introduce the CPA 1987 with the background leading up to it: common law negligence based on the narrow ratio in Donoghue v Stevenson and its problems particularly in the proof of breach of duty (as in the thalidomide cases) and proof of causal link. Pearson Report and Law Commission recommendations for no-fault liability in the 1970s.

CPA enacted in response to 1985 EC Directive: main objective was consistency of strict liability for products throughout Member States. The main aspects of CPA should be outlined: particularly the widened concept of producer under s 1(2) and s 2(2) and the concept of defect under s 3 (public expectation standard and key considerations under s 3(2)).

It then remains to discuss whether or not the strict liability objective has been fulfilled. The need to prove a defective product and causation remain a stumbling block. There is relatively little case law on the CPA but Abouzaid v Mothercare is an example of the finding of liability under the Act, when there was not under the common law. Liability is not absolute and defences will be an important aspect of the answer, particularly A v National Blood Authority and EC v UK in relation to s 4(1)(d) development risks. Be sure to answer the question with a strong conclusion.