Intermediate examination by consumer

Overview

Product liability in consumer protection law involves the legal responsibility of manufacturers and others in the supply chain for harm caused by defective products. Under common law, negligence forms the basis of liability, requiring proof of a duty of care, breach, and resulting damage. The Consumer Protection Act 1987 (CPA 1987) introduces a strict liability regime, where the focus is on the defectiveness of the product rather than fault. The intermediate examination refers to the evaluation of products by intermediaries, such as retailers or installers, and can affect the allocation of liability under both regimes.

Common Law Approach: Negligence and Duty of Care

Under common law, product liability primarily rests on negligence and the duty of care. The landmark case of Donoghue v Stevenson [1932] AC 562 established that manufacturers owe a duty of care to consumers, even without direct contractual relations.

Key Principles of Duty of Care

1. Reasonable Care: Manufacturers must take appropriate steps to ensure their products are free from foreseeable defects.
2. Anticipation of Defects: They are expected to actively identify potential defects and take suitable precautions.
3. Neighbour Principle: According to Lord Atkin, the duty extends to all individuals who could be reasonably affected by the manufacturer's actions.
4. Proximity: The presence of intermediaries does not diminish the duty owed, given the close relationship between the manufacturer and the consumer.

Subsequent cases expanded these principles:

• Grant v Australian Knitting Mills Ltd [1936] AC 85 extended the duty to include clothing manufacturers, highlighting its broad applicability.
• Daniels and Daniels v R White & Sons Ltd and Tarbard [1938] 4 All ER 258 demonstrated that both manufacturers and retailers could be held liable for defects.

Intermediate Examination in Negligence

The intermediate examination refers to the testing of a product by an intermediary before it reaches the consumer. This process plays a critical role in determining liability under negligence when a defect causes harm.

Key Considerations

1. Reasonableness: Courts assess whether it was fair to expect the defect to be discovered during the intermediate examination.
2. Nature of the Defect: If a defect is hidden and not obvious upon careful inspection, the manufacturer may still be liable.
3. Examiner's Skill: The expected level of scrutiny depends on the examiner's knowledge.
4. Liability Shifting: If a defect could have been identified through proper inspection, liability may shift to the intermediary.

Case Law

• Kubach v Hollands [1937] 3 All ER 907 showed that the manufacturer was not liable when an intermediary could have reasonably discovered the defect through examination.
• Haseldine v Daw [1941] 2 KB 343 considered the nature of the product and the defect when assessing the effectiveness of the examination process.

Statutory Framework: Consumer Protection Act 1987

The CPA 1987 introduced a strict liability regime for product defects, improving consumer protection by focusing on the product rather than the producer's conduct.

Key Features of the CPA 1987

1. Strict Liability: Claimants need only establish that a product was defective and caused damage, without proving negligence.
2. Definition of 'Defect': A product is defective if its safety is not such as persons generally are entitled to expect.
3. Scope: The Act covers all goods, including components and raw materials.

Potential Defendants

1. Producers: Manufacturers of products or components.
2. Own-branders: Entities presenting themselves as producers by using branding on products.
3. Importers: Those responsible for importing products into the UK from outside the European Union.
4. Suppliers: Liable if they fail to identify the producer or importer upon request.

Defenses

Section 4 of the Act outlines available defenses:

1. Development Risks: The defect was not discoverable based on the scientific and technical knowledge at the time.
2. Compliance with Mandatory Regulations: The defect arose due to adherence to legal requirements.
3. Component Defense: The defect is attributable to the design of another product in which the component has been fitted.

Intermediate Examination Under the CPA 1987

While the CPA 1987 emphasizes strict liability, intermediate examination can influence liability determinations. If a defect could have been identified through reasonable examination by an intermediary, manufacturers might argue contributory negligence from the intermediary, although this does not necessarily absolve them.

Key Factors

• Reasonableness of Examination: Courts consider whether the intermediary acted prudently in examining the product.
• Contributory Negligence: Liability may be adjusted if the intermediary's failure to identify the defect contributed to the harm.

Practical Applications and Case Studies

Scenario 1: Faulty Light Fixtures

Consider a manufacturer, BrightGlow Ltd., producing light fixtures with a hidden wiring defect. Retailers sell these fixtures without detecting the problem, and a customer is injured when a fixture causes an electrical fire.

Analysis:

• Negligence: The manufacturer may be liable under common law for failing to ensure the product was free from defects. The retailer might not be liable if it was unreasonable to expect discovery of the defect.
• CPA 1987: BrightGlow Ltd. faces strict liability for the defective product. If the retailer could have identified the defect through a reasonable examination, there might be an argument for contributory negligence.

Scenario 2: Pharmaceutical Product Liability

Consider a pharmaceutical company, HealWell Inc., that releases a new medication. Later, patients suffer unexpected side effects not identified during testing.

Analysis:

1. CPA 1987 Claim:

   • Patients need to show the medication was defective and caused harm.
   • HealWell Inc. might invoke the development risks defense, arguing the side effects were not discoverable with existing scientific knowledge.

2. Negligence Claim:

   • Patients would need to prove that HealWell Inc. failed to exercise reasonable care in testing or warning about the risks.
   • Compliance with regulatory standards does not automatically preclude negligence.

This case illustrates the interplay between strict liability and negligence, emphasizing the importance of scientific knowledge and the availability of defenses.

Conclusion

Product liability law intertwines negligence under common law with strict liability under the Consumer Protection Act 1987. The concept of intermediate examination plays a significant role in determining liability among manufacturers, intermediaries, and consumers. In cases involving complex products or hidden defects, courts must assess how negligence principles interact with statutory provisions.

When a product passes through an intermediary who could reasonably have discovered a defect, liability may shift or be shared. Under common law, a manufacturer's duty of care extends to all foreseeable users, but this duty may be mitigated if an intermediary fails to carry out a reasonable examination. Under the CPA 1987, while liability is strict, the actions of intermediaries can influence the assessment of contributory negligence.

Manufacturers are expected to ensure their products are safe, adhering to rigorous standards to avoid negligence. Intermediaries, such as retailers or installers, should conduct reasonable examinations to prevent harm and potential liability. The dynamic between these parties ensures that consumers are protected, and those responsible for defects are held accountable.

In product liability cases, careful analysis of both common law duties and statutory obligations is required. Intermediate examination by intermediaries is a key factor in this analysis, affecting how liability is allocated and how legal principles are applied.