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Understanding Product Liability: Rules & Responsibilities

Explore the legal aspects of product liability including certification, warranties, negligence, and defenses available. Learn about key elements such as defects, safety standards, warnings, and minimizing risks for manufacturers. Discover how proper documentation and evidence are crucial in handling product liability cases effectively.

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Understanding Product Liability: Rules & Responsibilities

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  1. PRODUCT LIABILITY BRAKENET 21 MARCH 2002

  2. Relationship of “product liability” and… • Certification • Warranty • Sales of goods contract/legislation • Negligence

  3. What is it ? “Where any damage is caused by a defect in a product every person [listed] shall be liable for the damage” Consumer Protection Act 1987

  4. Damage • Death • Personal injury • Damage to property

  5. Product • Includes a product comprised in another product • Not a service

  6. Which people? • Producer of the product • Any business putting name or trade mark on the product • First importer into the E.U. • Supplier of product (if refused to identify any party in the above categories)

  7. Defect • The safety of the products is not that which [persons] are generally entitled to expect • Design • Manufacturing • Marketing

  8. What is “safe”? In determining what you are entitled to expect, all the circumstances shall be taken into account, including: • The presentation of the product, the purpose for which it is marketed, instructions and warnings • The use it could be reasonably expected the product be put • The time when the product was put into circulation Do not infer that a defect exists simply because a product supplied later has “greater” safety

  9. Warnings and Instructions The difference between defective and safe: “Cook’s Kitchen Knife: This knife is extremely sharp. It should only be used for food preparation.It must be kept away from children” “Slasher Blade: Fantastically sharp knife with steel pointed blade. Great for all purposes.”

  10. Warning and Instructions Cleaning an electric lawn mower : “Before cleaning any part of the mower – make sure the mower is unplugged” “Clean the blades immediately after use”

  11. Possible Defences • Compliance with requirement • No relevant supply • Private transactions

  12. Possible Defences • The defect did not exist at the relevant time • The time when the producer supplied the product to someone else • i.e. the product was not defective when it left the manufacturer

  13. Possible Defences • Development Risks - “state of the art” “the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description might be expected to have discovered the defect” • Subsequent products – the defect existed in a product in which the manufacturer’s product was incorporated

  14. Minimising the risks BUT getting the right reaction and response • Correct design and manufacture • Appropriate records • Adequate warnings and instructions • Corporate awareness and education • The open loop – the smoking gun

  15. Before we go any further…. • E-mail and computer records are documents • Having no documents is not the answer

  16. What evidence can lawyers get? • Documents (Disclosure/discovery) • Notice to admit • Interrogatories • Depositions • Oral evidence at trail

  17. Disclosure • Documents in producer’s possession or control • Relating to any of the matters in dispute • Whether damaging or not • Examples – test reports/fmea/evaluation reports/informal notes/correspondence with suppliers/quality records/service histories

  18. What are the options? • The objective – having made the effort to design, manufacture and sell a safe product, need to be able to demonstrate that there are no design or manufacturing defects • The Options (?): • Not writing it down • Destruction of all copies 3. Write it down in a responsible manner

  19. Do… • State facts • Give all relevant information • Check receipt • Be reasonable in any subjective conclusions/remarks

  20. Don’t • Exaggerate • Speculate • Comment on what you don’t know • Criticize others or the product • Request something to be done which is unrealistic • Joke/Get abusive

  21. Examples of getting it wrong • The old model was unsafe. The new one is an improvement but there’s still a long way to go • After a little wear, it could be a killer • The rear pillars are a perfect blind spot. You can’t see a thing when reversing • The insulation always cracks on these wires – you were lucky not to get a shock • The early versions are dodgy. The new ones are a lot better.

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