Product and Occupiers Liability

• What happens when a product that you buy is dangerous and causes you harm?

  
  

  Who do you sue?


  You can sue under:

  
  

  Contract/ Consumer Rights Act 2015

  
  

  The common law

  
  

  The Consumer Protection Act 1987
• What is the CRA 2015 act used for

  The 2015 Act helps to protect purchasers from shoddy and unsafe goods
• How does the CRA 2015 Protect consumers?

  Chapter 2 of the 2015 Act implies certain terms in to all contracts for the sale of goods

  
  

  - This means that the terms apply to the contract even if not expressly stated by the purchaser
• How does the CRA 2015 Protect consumers from poor quality products/being scammed?


  - The 2015 Act provides that there is an implied term in a contract to supply goods that the goods will match their description: s.11(1)

  
  

  The 2015 Act also implies into contracts that the goods will be of 'satisfactory quality':

  s.9:

  - "The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory taking account of-

  A) Any description of the goods,

  B) The price and

  C) All the other relevant circumstances..."

  
  

  They must also be safe s.9(3)(d)

  
  

  Must fit all purposes that it was made for s.9(3)(a)

  
  

  must also be fit for any particular purpose (s.10(1))
• Donoghue v Stevenson


  decomposing snail was found in Mrs Donoghue's lemonade.She suffered from stomach upset and sued the manufacturer.• She suffered from stomach upset and sued the manufacturer as she had no contract with the café• Lord Aitken held:• “...a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation... of the product will result in an injury to the consumer’s life or property,owes a duty to the consumer to take that reasonable care.” [57
• What is the Consumer Protection Act 1987 used for?


  Strict liability regime: provided the claim falls with the CPA 1987 the defender is liable in delict to compensate the pursuer without the pursuer having to prove negligence

  
  

  - The pursuer must prove that the product is defective and the defective product caused injury.

  s.2(1) the "produce" is liable for any damage cause partly or wholly by a defect in a "product"

  s.5(2) No liability if product itself is the only thing damaged

  s.5(4) - in the case of damage to property - £275 de minimis provision.
• What is a 'product' under CPA 1987


  • A 'product' is defined to include 'any goods' (s.1 (2))
• What is a defective product under CPA 1987

  A defective product is: "there is a defect in a product... if the safety of the product is not such as persons generally are entitled to expect". (s.3(1))
• When is there liability for a defective product under the CPA 1987


  S.2(3) imposes liability on one who has supplied a defective product, but only where the injured person requests the supplier to identify the producer, and the supplier fails to provide thisinformation within a 'reasonable time'

  
  

  A supplier who produces this information is not liable to being sued, even if the manufacturer has ceased trading
• Bogle v McDonalds Restaurants Ltd [2002] EWHC 490


  A hot drink polystyrene cup split and spilled and scalded children. The defendants were not liable under the CPA 1987.

  
  

  Customers can legitimately expect a certain degree of risk from a product to enhance its utility
• A and others v National Blood Authority and others [2001]


  contaminated blood (Hepatitis C) was given to patents in blood transfusions and it was established that it was a defective product under the CPA 1987.
• Worsley v Tambrands Ltd 1999


  A tampon caused toxic shock. It was not a defective product under the CPA 1987 and there were warnings in the patient leaflets about toxic shock syndrome.
• Abouzaid v Mothercare 2000


  The consumer expectation test, not reasonable foreseeability, is the test (of remoteness). However, absence of comparable incidents may be taken into account
• What are damages and defences under CPA 1987


  This is defined as including death or personal injury, and 'personal injury' includes any disease and any other impairment of a person's physical or mental condition (s.45 of the 1987 Act)

  
  

  .The defender did not supply the product without a view to profit or otherwise in the course of business (s.4(1)(c )

  
  

  The defect did not exist at the relevant time. This provides for product tampering by 3rd parties (s.4(1)(d)
• The development risk defence

  This provides a defence for a producer who can show: "that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might have been expected to have discovered the defect if it had existed in his products while they were well under his control" (s.4(1)(e) of the 1989 Act).
• Controversial defence to this act

  -If the producer can show that other manufacturers would not have spotted the defect, then the injured party's suit will fail. Big drug companies benefit from this defence
• Proof of negligence


  • Proof of negligence is required in a law suit.

  
  

  • Where a pursuer cannot prove negligence they may be able to use the doctrine of Res Ipsa Loquitor.

  
  

  • It is a rule of evidence and infers liability on the part of the defender
• Res Ipsa Loquitor


  the thing speaks for itself
• Scott v St Katherine Docks Co (1856)


  Sugar bags fell from a crane. They didn't know why this happened. Couldn't see fault on defenders side.

  
  

  No proof of negligence on occupiers side.
• Ward v Tesco Stores Ltd [1976]


  Yogurt spillage and defenders did not take reasonable care. Staff should have cleared this up immediately.

  
  

  Proof of negligence
• Dobson v Asda Stores Ltd [2002]


  (unreported) - customer slipped on cherries. No slip mat. Many customers didn't have this problem and having a strict cleaning routine so the case failed
• Elements of Res Ipsa Loquitur


  1. sole control of the offending thing by the defender;

  2. The incident would not have occurred if due care was taken;

  3. No explanation is given by the defenders about how the incident happened.
• The governing statute


  Occupiers' Liability(Scotland) Act 1960
• Duty of care owed by occupiers


  Occupiers' owe a duty of care to those who are entering their land or premises as us reasonable in all the circumstances
• Meaning of occupier


  s.1(1) of the Occupiers' Liability(Scotland) Act 1960

  
  

  "Occupying and having control of land or premises"

  
  

  Someone has control of the property if they are entitled to take steps in relation to the land or property
• Examples of occupiers


  Example 1 : A derelict property - the owner is not in possession of it but does have control of it= occupier.

  
  

  Example 2: Sally has moved out of her house for building work to begin. She comes back to check on the property each night so she is still in control.
• Scope of duty required from occupier


  The scope of the duty relates to the pursuer and in relation to the danger and harm that has been suffered.

  S.2(1) OL(S)A 1960 states: The care which an occupier of premises is required, by reason of his occupation or control of the premises,to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on themand for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person,be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger
• Scope of duty (premises)


  the person who has the right and means in the circumstances of taking effective steps to protect the visitor from the particular danger whether by removal, notice, fencing or forbidding entry to the premises
• Dawson v Page (2013)


  DHL delivery driver came to deliver a parcel to a cottage that was having building work done to it. The driver knew he had to cross a trench with planks over it

  On the third visit after heavy rain, he slipped on the planks.

  
  

  Held: that the accident could have been foreseen and the defender did not have to preclude visitors from the whole site. There was an element of risk that the pursuer had to take and had success crossed the planks on two occasions. The reasonable test is interpreted broadly.

  
  

  Accident was D's fault
• Burden of proof


  the obligation to present evidence to support one's claim

  
  

  Burden of proof lies on the pursuer to prove that the occupier did not take the care that was reasonable in all the circumstances.

  The pursuer must have proof beyond the fact that there was

  1) a danger present on the land and

  2) the pursuer suffered an injury and or damage as a result
• McGuffie v Forth Valley Health Board


  A health service employee slipped on the icy surface of a path at her place of employment and suffered injury. She claimed reparation from her employers on the ground that they were the occupiers and that they had failed to take reasonable care "within a reasonable period" to have the path made safe by salting or gritting.

  
  

  Appealed allowed - no evidence of a "reasonable period"
• Porter v Strathclyde Regional Council


  S, a regional council, reclaimed against the Lord Ordinary's decision finding them liable to P, employed by them as a children's nursery assistant, who slipped on some food dropped by one of about five young children then feeding themselves.

  
  

  Lord Ordinary was entitled to conclude that despite carrying a fractious child, she had a duty to take reasonable care to look where she was going and his apportionment of fault should not be interfered with.
• "Danger"


  The danger could include uneven roads beside a cycle path, slippery floors and unsafe furniture.
• Taylor v Glasgow Corporation 1922


  • Poisonous berries grown in the botanical garden were classed as a danger due to the state of the premises. A child died after consuming them.

  • Children would be attracted to the berries and the defenders knew that the berries were poisonous and did not warn parents or put up a fence that was child proof around the berries.

  
  

  
  

  The court held that the Glasgow Corporation was liable in this instance. They had permitted children to go on to the land and it is understandable that the berries would have appealed to visiting children, thus representing a danger. The defendants were aware of this danger caused by the poisonous berries and did nothing to prevent the damage. On this basis, the action was required to proceed to trial.
• Tomilson v Congleton 2004


  A local authority appealed against a decision that, as the owner and occupier of a country park, it had owed a duty of care to T and was liable for serious personal injuries that T had sustained when he dived into the shallow water at the edge of a lake and struck his head on the bottom.

  
  

  Swimming in the lake was prohibited and the local authority had erected notices and distributed leaflets warning of the dangers of swimming in the lake

  
  

  Held: It would not have been required to take steps to prevent T from diving or to warn him against dangers which were obvious
• "Such care that is reasonable"

  - Must calculate risk

  - The nature of the danger

  - The occupier's knowledge of the danger;

  - The extent of injury;

  - The probability injury or harm arising;

  - The age of person injured and whether the pursuer was permitted on the premises;

  - The cost of eliminating the danger
• McGlone v British Railways Board 1966


  a 12-year-old boy was burnt by a transformer. The defenders had taken reasonable care as they put up warnings and surrounded the danger with a barbed wire fence which the boy managed to climb over.

  
  

  It was held that to provide a fence that was totally impenetrable was not reasonable. The defenders had discharge the duty because they had erected a fence which was a obstacle to a 12-year-old boy and the boy had to put some effort in overcoming the obstacle.

  
  

  Age and trespassing were considered by the court.
• Titchener v British Railways Board


  Walking on railway tracks is consenting to the fact you are likely to get hit and die

  
  

  The duty was owed to that particular pursuer. She was 15 years old so she would have known the dangers of crossing a railway line. The danger was obvious and more would have to be done if the child was a lot younger.
• Volenti non fit injuria


  person who knowingly puts himself at risk for danger, cannot sue

  
  

  OLSA s.2(3)

  Nothing in the foregoing provisions of this Act shall be held to impose on an occupier any obligation to a person entering on his premises in respect of risks which that person has willingly accepted as his; and any question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes to another a duty to show care.
• Devlin v Strathclyde Regional Council 1993

  A 14 year old boy died after jumping off a roof of a school and falling through a skylight.

  
  

  Held: There was no difficulty in concluding that if S had appreciated the risk of a child acting as B did, there were reasonable and practicable steps which they could have taken to reduce the risk of injury. However B's action in jumping as he did onto what he knew to be a cover over a skylight was so extreme as to be beyond the scope of reasonable foresight.