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Chapter 16 Guidance on answering the end-of-chapter problem questions

Product liability

Under the Consumer Protection Act 1987, products include (if relevant here) ‘vehicles’: s 45. Prima facie, an action can be brought under CPA 1987 if the product has a ‘defect’ in it. This is tested by asking whether its safety is such as persons generally are entitled to expect given the risks to person and property: s 3(1). Various matters can be taken into account in order to determine this issue, including: the way in which the product was marketed (perhaps aimed specifically at children), instructions and warnings (no evidence about these things); what might reasonably be expected to be done with the product (noting that scooter riding will always carry risks of injury); and the time when the product was supplied: s 3(2). The scooter appears clearly to be defective because the expiration of the battery coupled with the unintended operation of the brakes at that point inevitably will mean that people using it would be thrown off and possibly injured. It is not necessary to prove that the defect was foreseeable by the producer (which could have been a problem on the facts): Abouzaid v Mothercare. Damage must have been caused wholly or partly by the defect: s 2(1), which seems indisputable. The Act allows recovery in cases of personal injury and property damage (s 5), although the property must be for private use (s 5(3), satisfied here) and the damage must meet the £275 threshold: s 5(4). The Act does permit liability for consequential financial losses (A v Blood Authority), but there might be a question about whether Phileas’ business loss is really consequential. The action can be brought by either the consumer or the injured person and can be brought against the person who imported the product into the EU: s 2(2). It is not clear whether Cooters’ Scooters is the importer. However, CS can be sued in the case that they do not reveal the name of the actual supplier to them: s 2(3).