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THE UNIVERSITY OF

NAIROBI
A world-class university committed to Excellence

COURSE : BACHELOR OF
LAWS

YEAR : SECOND YEAR, 1ST


SEMESTER- GROUP 4

UNIT : LAW OF TORT

LECTURER : DR. N. ORAGO

ASSIGNMENT : PRODUCT LIABILTY

DATE DUE : 22ND JULY 2016

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NAME REGISTRATION NUMBER SIGNATURE
NAKAYA VIVIENNE O. G34/3038/ 2015
WANDERA HOPE G34/3113/2015
MWANGI CATHERINE G34/0231/2015
JUNE LOMARIA G34/3051/2015
KAMUNU ERIC G34/3010/2015
MARTIN MATHEKA G34/3115/2015
KIPKOECH FELIX G34/3140/2015
AMADI SOLOMON G34/3040/2015

FRANK KALWALE G34/3157/2015


KINGORI SHEILA G34/1062/2015
ADAM KADERNANI G34/3052/2015

ONALO ANITA G34/3153/2015

AKIVAGA JAYUGA G34/2618/2015

OUKO M .M G34/3095/2015

MARGARET MUSOGA G34/318/2015

RASHID MAHAMED G34/3161/2015

BRENDA CHEPKURUI G34/3141/2015

IAN MUNGORE G34/301489/2015

KHAEMBA YVONNE G34/32598/2015

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TABLE OF CONTENTS

1.0 Legal basis for liability


1.10 What is product liability? .4
1.20 Who can sue? .. 4
1.30 Who can be sued? .4

2.0 The Elements of Tort in product liability ..5

3.0 Applicable Defences for the Defendant7

4.0 Remedies available to the Plaintiff8

5.0 Conclusion.....9

6.0 Bibliography..10

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1.0THE LEGAL BASIS OF PRODUCT LIABILITY

1.1.What is product liability?

Product liability refers to a manufacturer or seller being held liable for placing a defective
product into the hands of a consumer.1 Responsibility for a product defect that causes injury
lies with all sellers of the product who are in the distribution chain. In general terms, the law
requires that a product meet the ordinary expectations of the consumer.

Historically, a relationship of privity of contract had to exist between the person injured by a
product and the supplier of the product in order for the injured person to recover. Suffice it to
say, a consumer could not succeed in a suit against the manufacturer as there existed no
contractual relationship between them. Donoghue v Stevenson sidestepped this doctrine and
provided a new remedy but one dependent on fault.2

1.2.Who can sue?

Anyone injured or caused loss by a defective product can bring an action in negligence.

1.3.Who can be sued?


Donoghue v Stevenson

The House of Lords held that the manufacturer of ginger beer could be liable in negligence for
injury to an ultimate consumer of the product as a result of its defective condition.

Based on the neighbor principle as founded by Lord Atkin, he pointed out very clearly that
every individual has the duty to take reasonable care to avoid acts or omissions which he can
reasonably foresee would likely to cause injury to his or her neighbour. It is reasonably
foreseeable that a manufacturers negligence would affect the consumer.

He pointed out that:3

The question is whether the manufacturer of an article of drink and sold by


him to a distributor, in circumstances which prevents the distributor or the

1
J.F Clerk and others, Clerk & Lindsell On Torts ( Sweet & Maxwell 2010).
2
Barbara Harvey and John Matson, Cases And Commentary On Tort(Oxford University Press 2009).
3
Ibid.
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ultimate purchaser or consumer from discovering by inspection any defect is
under any legal duty to the ultimate consumer or purchaser to take reasonable
care that the article is free from defect likely to cause injury to health

The probability, not the possibility, of intermediate examination is put into consideration. If it
is proven that it was probable that an intermediate examination would be conducted, then the
manufacturer may be freed from liability. In Kubach v Hollands, the defendant was held not
liable as he had made it clear that an intermediate examination of the product should be made
4

Consumer Protection Act 1987

Where any damage is caused wholly or partially by a defect in a product every person involved
in the production or supply shall be liable for the damage.5 Liability is therefore not limited to
those involved in production but extends to distributors and suppliers. The sale of a product
must be made in the regular course of the supplier's business. Thus, someone who sells a
product at a garage sale would probably not be liable in a product liability action.

The doctrine of res ipsa loquitur shifts the burden of proof in some product liability cases to
the defendant(s). Translated, this Latin term means "the thing speaks for itself," and indicates
that the defect at issue would not exist unless someone was negligent. If the doctrine is
successfully invoked, the plaintiff is no longer required to prove how the defendant was
negligent; rather, the defendant is required to prove that he was not negligent.

2.0 ELEMENTS OF PRODUCT LIABILITY TORT

For product liability tort to be proven, a number of elements that must be proven in order

for the claim of product liability tort to suffice. There are four elements that must be proven6.

1. There must be proof of damage. The damage must not only be dangerous but must

also been the cause of the harm occasioned. This element of product liability tort is

4
John Murphy and Harry Street, Street on Torts (Oxford University Press 2007).

5
Consumer Protection Act 1987, s 2(1)

6
catherine elliott and frances quinn, Tort Law (7th edn, elliot and quinn series 2009).

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exemplified in the case of D & F Estates v Church Commissioners. In the case of D &

F Estates the main contractor on the site of construction, subcontracted the interior

plastering. After a period of fifteen years, it was found that the plastering work was

defective. The defendant was not liable as there was no harm caused as a result of the

defective plasterwork, only that harm/injury could have been occasioned in the

future.7

2. There must be evidence to show that defect existed at the time of sale, manufacture or

lease of the product. In this regard the plaintiff must produce evidence showing that

the defect in the product was present when it left the hands of the manufacturer, or

when it was delivered or leased by the plaintiff. The defect must be shown to have

been in existence at the time before it got to the plaintiff and not after possession by

the plaintiff. In the case of Evans v Triplex Safety Glass Co. the plaintiff made a

purchase of a windscreen from Triplex Glass & Co. After a period of one year, the

windscreen cracked leading to the plaintiff suffering an injury together with his wife

and son. The plaintiff sued Triplex Safety Glass Co. claiming product liability. The

court held that the defendant, Triplex Glass Co. was not liable for the injury

occasioned since the glass could have cracked during fitting or any time after it was

sold. The plaintiff had been unable to show that the defect of the crack existence

before he took possession of the windscreen.8

3. The plaintiff must have been the person who used, consumed or could have

reasonably been affected by the product. In this regard any individual bringing forth a

legal claim citing product liability must have a link to the product itself. In this way,

he or she must have made a purchase, used the product or affected in any way by the

product as a result of its defect. This link gives the plaintiff grounds to pursue a legal

claim on the basis of product liability. In the case of Stennett v Hancock, a repair was

liable to a pedestrian who was injured when the wheel came off a vehicle repaired by

7
D &F Estates v Church Commmissiners [1990] High Court, 53(6) (High Court)
8
Evans v Triplex safety glass company [2013] eKLR 24 (High court).
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the defendant. The court held that the accident was due to the negligence of the

defendant in the repair of the vehicle. The pedestrian was a third party but was

affected by the actions or lack thereof of the defendant.9

4. The plaintiff must have sustained injury or damage to property directly caused by the

defect in the product. The plaintiff must show that the injury or damage caused

resulted directly from the defect in the product that he or she purchased and made use

of in a way. The cause of damage or injury occasioned should be directly related or

resulting from the defect in the product.

3.0 DEFENCES
In product liability, defences are based on the types of claims raised. They are:
a) Negligence claims
b) Breach of warranty claims
c) Strict liability claims
While some defences work to defeat all types of claim, some only work to defeat one or two.
The defences include:
a) Contributory negligence
b) Voluntary assumption of risk
c) Limitation Period

a) Contributory negligence

According to the Consumer Protection Act 1945 of The UK provides that when damage is
caused partly by a defect in a product and partly by the fault of the person suffering the
damage then the defect is to be treated as if it were the fault of every person liable for it under
the Act10.
This aspect makes an attempt to strike an equal weighing system between the person who
shoulders the burden and the person who does not. According to the facts of the case, the
court will spread out liability at variant divisions to both of the parties. However if the
claimants fault is so stretched then liability solely fall on him or her and nobody else.
If the plaintiff misused the product in a way not intended and it caused him or her harm then
the plaintiff is said to have contributed to his or her injury. This defence works with any type
of claim. The defendant ought to prove that the harm caused could not be realistically
predicted and therefore could not be prevented by design or warned against. However if the
cause of injury was predictable by design or warning the product will be considered the cause
of injury. 11

9
D &F Estates v Church Commmissiners [1990] High Court, 53(6) (High Court)
10
Consumer Protection Act 1987, s 4(1)(b)
11
Coulter Boeschen, Defenses in a product liability lawsuit (2015)
(http://www.alllaw.com/articles/nolo/personal-injury/defenses-product-liability-lawsuit.html ) accessed 21 July
2016
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b) Voluntary assumption of risk

Voluntary assumption risk as a defence in product liability applies when a warning on a


product makes a potentially unsafe product safe for use. This is a defence for negligence
claims and breach of warranty claims.
Where for a product, warnings have been issued but the plaintiff for whatever reason uses the
product for a purpose other than the intended one and thereafter leads to injury, he or she is
liable and cannot blame the producer of the harm.12
Where a plaintiff disregards a known risk and suffers an injury then he or she cannot place
blame on the producer.
This defence can be underscored in the case of Worsley v Tambrands13 where the plaintiff
suffered from toxic shock syndrome after using a tampon made by the defendant who went
on to sue them for damages for injury caused. The court held that there had been adequate
warnings given in their pack hence the plaintiff assumed the risk.

c) Limitation periods

A limitation period is a statutory time frame in which a claimant can bring an action to court.
The Limitation of Action Act Cap 22, 201214 provides the limitation periods for actions of
contract, tort and other actions. Section 2 of the act provides that an action must be brought
within three years of the date on which the injury occurred or if at a later date on which the
claimant becomes aware of the injury15. After the limitation period elapses, a claimant
however good or valid the claim he or she presents might be, will not have his or her case
entertained by the court of law giving the defendant a clear cut defence. This aspect has
been clearly underscored by the claims brought by several women in the US against a drug
company that produced a drug by the name (DES). The young women contracted cervical
cancer due to their mothers taking the mentioned drug. They claim was not successful as the
period for filing the action had elapsed.16

4.0 REMEDIES OF THE PLAINTIFF IN PRODUCT LIABILITY


The function of product liability is to protect the consumer from defective goods reaching
him or her from the producer, manufacturer, or any party who has been responsible for the
process the product has gone through (wholesaler, retailer, and e.t.c)
If the products of a manufacturer are found defective, any foreseeable plaintiff can sue on
grounds of either negligence, breach of warranty or strict liability, and any commercial
supplier in the distribution chain can be liable.

12
Coulter Boeschen, Defenses in a product liability lawsuit (2015) (
http://www.alllaw.com/articles/nolo/personal-injury/defenses-product-liability-lawsuit.html ) accessed 21 July
2016
13
Worsley v Tambrands [2000] PIQR P95
14
Limitation of Action Act, 2012
15
Ibid, s 2(1)
16
John Murphy & Christian Writing, Street on Tort, (13th edn, Oxford University Press 2012) 435
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In the Kenyan jurisdiction, chapter 46 of the 2010 constitution exists to protect the consumer
rights.
Article 46(1) (d) states that
Consumers have the right to compensation for loss or injury arising from defects in goods or
services17
The very article, 46(2), gives parliament authority to enact a legislation to provide for
consumer protection and for fair, honest and decent advertising.
This led to the enactment of Consumer Protection Act in 2012, an act that provides remedies
towards a plaintiff (consumer) if the products of a producer are found defective, thus has
caused injury or have been rendered unsafe.
Part IX of the Consumer Protection Act of Kenya gives procedures for consumer remedies.
Section 84(2) of the CPA states that, in the case whereby a consumer has constituted an
action in court, the court shall order that the consumer recover;18
(1). the full payment to which he or she is entitled under this act and
(2). All goods delivered under a trade-in arrangement or an amount equal to the trade-in
allowance.
(3). In addition to sub-section (2), the court may order exemplary or punitive damages or
such other relief as the court considers proper.
In other jurisdictions like Australia, a given number of remedies are provided for the plaintiff
in the Australian Consumer law19, which includes:
a) Rejection of the goods for a major failure and obtaining a refund.
b) Asking for repair of the goods.
c) Asking for replacement of the goods.
d) Suing for damages

5.0 CONCLUSION
All said and done, what is clear is that locally, Kenyan consumers are barely aware of their
rights. There has however been a growing number of enlightened consumers. For example a
while back the government set out a crack-down on illegally manufactured alcoholic drinks
and bottled water. There is also a case where the court awarded damages for failure of
contraception. That was in the case of AAA v Registered Trustees (Aga Khan University
Hospital, Nairobi) [2015]eKLR, Civil Case No. 3 of 2013(High Court of Kenya at Nairobi
(Civil Division)) 20. With such decisions, although the case does not entirely fall under

17
The constitution of Kenya, 2010

18
The Consumer Protection Act, 2012

19
Australian consumer law ( 2010) ( http://www.austlii.edu.au/au/legis/tas/consol_act/acla2010330/ ) accessed 21 July
2016

20
Africa : Case summaries with Analyses LEGAL GROUNDS (http://www.law.utoronto.ca/programs-
centres/programs/irshl-reproductive-and-sexual-health-law/irshl-legal-grounds-updates) accessed 21 July
2016
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product liability it is right to say, there has been good progress in the concept of product
liability with regard to Kenyan jurisdictions.

6.0 BIBLIOGRAPHY

1. Clerk J and others, Clerk & Lindsell on Torts(Sweet & Maxwell 2010)
2. Harvey B and Martson J, Cases And Commentary On Tort(Oxford University Press
2009)
3. Murphy J and Street H,Street on Torts (Oxford University Press 2007)
4. The Consumer Protection Act 1987
5. The Consumer Protection Act, 2012 ( Cap. 504, Laws of Kenya)
6. The Constitution of Kenya, 2010.
7. Paula Giliker and Silas Beckwith, Tort ( Sweet and Maxwells Textbook Series)

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