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PRODUCT LIABILITY

PRODUCT LIABILITY

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PRODUCT LIABILITY

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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.