Ken Oliphant
28 December 2012
Case 1: Brake Pad Failure
X Ltd manufactures bicycles. In 2011, it started to use a new material for its brake pads, which X
Ltd believed on the basis of its testing to
be a cheaper, longer-lasting and generally more effective alternative to traditional materials. X Ltd was aware of a very
small risk that ¨C given a combination of particular circumstances (temperature,
surface water, oil, etc) ¨C the new brake-pad material might suddenly be
rendered ineffective, but it considered that the risk was likely to eventuate only very rarely and did not outweigh
the general advantages of the new material. It included a statement about the possibility
of failure in the small print of the product instructions supplied with all of its
bicycles incorporating the new brake pads. A, who purchased one of the
bicycles, is one of a handful of people injured in accidents attributable to the failure of the new brake pads; A¡¯s bicycle is
also damaged. B, a passer-by, is injured in the same accident.
(a) Analysis
What is X Ltd¡¯s liability to
A and B? Pay particular attention to
the various possible bases of liability (a general tortious
liability for fault, vicarious liability, contractual liability, or a special
strict liability regime?). Would it make any difference to
your analysis if Y, who is (i) an employed researcher in X Ltd¡¯s laboratory, or alternatively (ii) an independent research contractor,
had covered up the risk that the new brake-pad material might fail?
(b) Commentary
What does your analysis demonstrate about the reasons for
introducing strict product liability and the justifications that may be given
for it? Do these justifications apply where (as in the present case) the injury
is caused by a standard product and results from choices made in the design
process? And where the victim is a third party rather than the purchaser? Is
the resulting liability truly a strict liability or does it ultimately rest on
fault?
Case 2: Infected Blood
A is infected with Hepatitis N as the result of
a blood transfusion conducted in X Hospital in 2005. The source of the
infection was blood supplied to X
Hospital by Y Ltd, who had collected it from a donor, Z. Unknown to himself, Z was a carrier of the Hepatitis N
virus. At the time, the risk of Hepatitis N in donated blood had been
identified in a single published paper in a scientific journal, but only a
handful of research laboratories in
the world had the capacity to test
for its presence in specific quantities of blood. Furthermore, the majority of
the scientific community did not believe that the condition (Hepatitis N) really
existed. It was only subsequently that the condition¡¯s existence came to be generally accepted and that a test was
developed that allowed hospitals and blood suppliers to
screen out infected parcels of blood.
(a) Analysis
What is the liability to
A of X Hospital, Y Ltd and Z? Pay particular attention to
the various possible bases of liability (a general tortious
liability for fault, vicarious liability, contractual liability, or a special
strict liability regime?). Would it make any difference to
your analysis if A contracted the virus as the result of a blood transfusion conducted in 2001, but her condition
only manifested itself in 2012? (In this context, consider in particular
differences in the time limits applied to
the various possible bases of liability.)
(b) Commentary
What does your analysis demonstrate about the reasons for introducing
strict product liability? In particular, why are ordinary principles of
fault-based, vicarious and contractual liability considered insufficient? What
does your analysis demonstrate about the justifications that may be given for
strict product liability? Do these justifications apply where (as in the
present case) the injury is caused by a non-standard product and results from a
failure to identify a pre-existing
defect in the individual product?
Case 3: Bridge Collapse
A, a pedestrian using a public right of way, is injured by the
collapse of a bridge constructed by X Ltd on land belonging to Y, who commissioned the construction, on the
basis of a plan drawn up by architect Z, whom Y also commissioned directly. It
transpires that Z¡¯s plan was defective and caused the collapse. Y incurs the
cost of instructing a different architect to
redesign the bridge. Under the terms of its initial engagement, X Ltd is
obliged to construct the new bridge
for no additional remuneration.
(a) Analysis
What is the liability to
A of X Ltd, Y and Z? Is the architectural plan itself a ¡®product¡¯, and so
subject to strict product liability,
or does it merely represent the performance by Z of a service, to which some alternative liability regime applies?
What further liability, if any, does Z have to
X Ltd and Y, whether on the basis of a direct claim or a recourse action?
(b) Commentary
What does your analysis demonstrate about the coherence of strict
product liability as it exists in your jurisdiction, paying particular
attention to the limits on its
scope. Identify the various alternative types of liability that could arise
(including contractual liability), and highlight the main differences between
them. To what extent is liability for immovables different from liability for
movables, and is this justified? To what
extent is liability for the supply of services different from liability for the
supply of products, and is this justified?
|