Tutorial Question week 4/2010
1. What is the historical background for the imposition of strict liability for defective
products?
2. Does the CPA provide the provision on product liability?
3. Who will liable for defective product?
4. What is burden of proof and how to proof defective product?
5. Does the CPA covers all defective products. Explain.
6. How to determine that the product is defective?
7. How to assess suffer and loss in respect of defective product?
8. Is the exemption clause is applicable in respect of defective product?
9. What is the maximum claim which can be brought to the producer?
10. What are the guarantees implied by the CPA when you as a consumer buys a
product?
11. What are your rights as a consumer against the supplier when you found a product
that you bought is not in conformity with guarantees implied by the CPA?
12. You bought for your child an automatic car toy operated with two rechargeable
batteries together with the charger. When you charged the batteries, the charger
exploded and injured your child. When you examined the box of the toy, you
found that the toy was imported from China by a company. Who is liable for the
injury?
5. Does the CPA covers all defective products. Explain.
A defective product can be defined as a product where the safety of
it is not help up to standard with that of a person that they are generally
entitled to. So the producer of the product of the person that holds
themselves out to be the producer of the product and the importer can be
considered as the people who may be held liable for any of the damages
that are caused wholly or partly by the defect in the particular product.
As a consumer you may claim for such damages either through the
Tribunal for Consumer Claims or they can choose the Civil Law Act 1956.
Under the Consumer Protection Act 1999, a person shall be prohibited
from limiting or excluding their liability for any of the loss or damage that
has been caused by the defect that is found in the product.
6. How to determine that the product is defective?
Defect in the product may be divided into three types,
manufacturing defect, design defect, marketing defect.
Firstly, manufacturing defect is a defect which occurs during the
process of production due to a miscarriage of the process of construction
or assembly of the product, or its container, or an unintended ingredient or
defective raw materials may be responsible for the damage (Donoghue v
Stevenson regarding the issue of snail in the bottle).
Secondly, design defect refers to defect in a whole run of product.
The danger may stem from the choice of inappropriate materials, from the
product formula ingredients or specifications, or from failure to incorporate
sufficient safety features. It normally found in high-tech products such as
chemical, drug and medicine (Abouzaid v Mothercare (2001)).
Thirdly, Marketing defect is a product which is properly designed
and properly manufactured but become unsafe due to insufficient warning
labels or direction for use. (Vacwell Co. Ltd. v BDH Chemicals Ltd.)
7. How to assess suffer and loss in respect of defective product?
Defective products may cause various types of loss and damage,
ranging from the trivial to the catastrophic and it is the main aim of product
liability law to compensate those loses. Damage is defined in Section
66(1) of the Act as meaning ‘death or personel injury, or any loss of or
damage to any property, including land, as the case may require’
However, a claim for damage to property other than the defective
product itself is restricted by section 69(1)(c) which states; where any
damage is caused wholly or partly by a defect in a product, the liability of
the person liable for the damage under section 68 shall not include the
loss of or damage to – any property which at the time it is lost or damaged
is not (1) of a description of property ordinarily intended to private use,
occupation or consumption; and (2) intended by the person suffering the
loss or damage mainly for his own private use, occupation or
consumption.
8. Is the exemption clause is applicable in respect of defective product?
According to section 71 of the CPA 1999 regarding the prohibition
on exclusion from liability, the liability of a person under this Part to a
person who has suffered damage caused wholly or partly by a defect in a
product, or to a dependant of such a person, shall not be limited or
excluded by any contract term, notice or other provision.
Besides that, the Act does not retain the exemption provided for
agricultural producer. The Act does not apply to a person in respect of any
defect in agricultural produce if such agricultural produce has not
undergone any industrial process. There currently exist no specific
legislation to govern genetically modified foods and other biotechnology
products. Thus, the Act needs to be amended to provide for primary
agricultural produce to come within the meaning of product.