Product Liability 2009 - Arnold & Porter LLP

Scotland
274
McGrigors LLP Scotland
relation to claims under the Act the Pursuer requires to prove that
the producer supplied the product, that the product was defective
and that the defect caused the injury or damage. The onus of
proving a defence under the Act rests with the producer. The
standard of proof is, again, the balance of probabilities.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
It is unlikely to be enough for the claimant to show that the defender
wrongly exposed the claimant to an increased risk known to be
associated with the product (particularly where general causation is
in issue) and if the claimant cannot prove (on the balance of
probabilities) that the injury would not have arisen without such
exposure. For example, in McTear v Imperial Tobacco Limited
(2005 2 SC 1), it was held that in order to establish that exposure to
a substance can cause, or has caused, a condition it must be shown
on the evidence that, on the balance of probabilities, the condition
would not have occurred “but for” the exposure. This applies to
exposure on a single occasion and cumulative exposure. In McTear,
the Court was concerned with whether smoking could cause lung
cancer and if it could, whether it caused Mr. McTear’s lung cancer.
(The claim failed and it was held that there was no liability on the
defenders.) Evidence of exposure associated with an increased risk
of injury complained of is unlikely to be enough to prove causation
although that is likely to depend on the circumstances of the case
including the nature and strength of the association.
The “but for” test had been affirmed by the House of Lords in
Fairchild v Glenhaven Funeral Services Ltd and Others (2002) All
ER 305. In that case, it was accepted that the plaintiffs would not
have contracted mesothelioma but for exposure to asbestos: the
problem was that it was not possible to say whether it was an
accumulation of asbestos fibres or one individual fibre which had
triggered the condition. It was not possible to determine if only one
employer, or some employers, out of several who had been
negligent in respect of exposure to asbestos, were responsible for
the exposure which caused the condition. Since the exposure could
have been on a single occasion, could liability nevertheless be
established against each of the employers? The Court held that
where an employee had been exposed by different defendants
during different periods of employment, to inhalation of asbestos
dust in breach of each defendant’s duty to protect him from the risk
of contracting mesothelioma and where that risk had eventuated
but, in current medical knowledge, the onset of the disease could
not be attributed to any particular or cumulative wrong, a modified
approach to causation was sufficient. Accordingly, the claimant
could, on a balance of probabilities, prove the necessary causal
connection to establish the defendants’ liability.
The decision means that individuals who have been exposed to
asbestos while working for more than one employer are entitled to
seek compensation, despite being unable to prove which employer
exposed them to the asbestos which may have caused their illness,
it being possible that mesothelioma could be caused by just one
speck or fibre of asbestos dust. The decision is not easy to translate
to other circumstances and it is important to note that there was no
issue among the parties as to whether 1) asbestos could cause
mesothelioma and 2) that it caused mesothelioma in the employee
in question. Damages for claims for mesothelioma are now covered
by section 3 of the Compensation Act 2006.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
No. If the pursuer cannot prove his case on the balance of
probabilities against a specific producer the claim will fail.
However, if several companies supply parts to a manufacturer who
assembles “the product” it may be that all of those businesses could
be liable. This has not been tested in the Scottish Courts.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
Failure to warn may give rise to liability under the Act and in
negligence. In terms of section 3(1) of the Act, there is a defect in
a product if the safety of that product is not such as persons
generally are entitled to expect. In determining what persons
generally are entitled to expect a variety of factors will be
considered, such as any instructions or warnings provided in
relation to the product. In Chadwick v Continental Tyre Group Ltd
[2008] CSOH 24, the court considered that “a reasonably
foreseeable risk cannot amount to a defect in a product within the
meaning of Section 3”.
Producers/distributors are likely to owe a duty to take reasonable
care to provide sufficient information and warnings with their
products.
There are few Scottish reported cases on the Act and the Scottish
Courts have not decided the relevance of warnings provided by
intermediaries.
In McTear v Imperial Tobacco Ltd (2005 2 SC 1), the Court
accepted the proposition that there is no duty to warn of risks of
which the ordinary member of a relevant class of people may
reasonably be assumed to be aware. The Court referred to the
standard of the “normally intelligent person”.
Whether ‘learned intermediaries’ warnings are likely to be
sufficient to discharge the obligation on the manufacturer to provide
appropriate product information to the ultimate consumer will
depend on the relevant facts and circumstances.
3 Defences and Estoppel
3.1 What defences, if any, are available?
Section 4(c) of the Act contains six defences. It is for the producer
to prove these to the court’s satisfaction:
(a) The defect in the product arose through compliance with a
requirement imposed by law or a European Community
obligation. This defence may be difficult to utilise
successfully. Government guidance suggests that a producer
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