CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

The expression product liability is referred to the civil wrong of Manufactures and other Distributors where damage or loss is caused by products which failed to fulfilled the purpose for which there were manufactured for. This expression is usually understood to meet the standards claimed expressly or impliedly stated or products which are dangerous or otherwise defective. Such liability may arise either in Contract or in Tort. However, further research in this aspect though discussed in less details involves the use of the criminal law[1].

As a matter of fact, relevant provisions may apply either to particular types of product or be of more general application. But part 2 of the Consumer Protection Act 1987 deals with other measures concerned with general product safety. Also, products liability law in recent decades has experienced an unparalleled explosion of doctrine and litigation. This is so because of the rapid development during this period of both science and technology on the one hand, and manufacturing and marketing on the other hand, which together have provided an ever-escalating array that sometimes, dangerous products are supplied to the ever widening market of consumers. In another dimension, this research also depends on a general shift of attitudes concerning risks, from individuals to collective responsibility. Changes in attitudes concerning corporate responsibility no doubt also have helped to fuel the rapid expansion of product liability law and litigation[2].

Notwithstanding, there is ample room for debate as to where the boundaries of the subject of the book on product liability should be drawn and the cut-off points is bound to be largely pragmatic or dictated by the exigencies of space. As a historical development, product liability is by no means a new subject, but it has developed greatly in prominence and importance over the last thirty or so years. For the purposes of English law, which generally reflects the laws of the United Kingdom as a whole, discussion maybe divided into two main parts according to whether the liability is based on Contract or Tort. The division is not clear-cut especially in the areas of liability for misrepresentations. Under contract, liability for the sale of goods is associated primarily with compensating a purchaser in respect of unfulfilled expectations, whilst liability in Tort is associated with compensating third parties who have suffered physical injury or property damage. However, it is still the case that purely economic losses are not readily compensated by the law of tort. On the other hand, contractual remedies are certainly not exclusive preserve of purchasers who are suing in respect, of a failure to confer a promised benefit. There are also available to purchasers who are seeking damages for physical injury that resulted from their use of the goods. For instance, the decision of the Court of Appeal in the early case of Randall v Newson[3] is illustrative. Here, the purchaser of a phaeton carriage was claiming damages in respect of injuries suffered by his horses when a defective pole broke. The court held that, he was entitled to recover, provided that the injuries were found to be a natural consequence of the defect.[4] Whether physical damage to person or property is involved or not, a significant advantage of a claim in contract is that, liability is strict.

According to Macleod, the main issues relating to product liability are the burden of proof, the cost of civil litigation, the liability for acts of another and the international dimension. As a result, undisputed examples of consumer’s friendly-provisions are represented in the EU Consumers Directive in Articles 1, 2, 3, 6 and 12. That is to say, strict liability regime, definition of product, definition of producer, definition of defectiveness and limitation or exclusion of liability. The idea to create a system based on no-fault liability was already present in the first proposal adopted by the commission in 1976. This in turn reflects a fundamental shift in the allocation of risk between consumers and producers that can be traced back to Donoghue v Stevenson, decided before any specific regulations on product liability were formally adopted.[5] Within the Cameroonian context, the inertia is noticeable in several respects but this research focuses on the domain of protection [or the lack of it] for victims of defective products generally, and in Cameroon for example.[6]

1.2 Statement of the Problem

            Injury or harm and damages resulting from the consumption of defective products gives liability either in Contract or Tort, which is the most appropriate remedy at common law or what we called damages in contract and tort. But the worry here is the manner in which damages are decided upon in the two subject areas. While they are compensatory in contracts, meaning that the victim could have more damages paid, they restitutory in torts with the aim of placing the victim in the position he was prior to consuming the defective product. Thus, this double standard has proven to be unfair to victims of defective products. With this imbalance rules of damages in contract and tort, most of the victims are confused as to whether their cases should be brought in contract or tort, thereby creating some discriminations amongst the plaintiffs who are injured by defective products.

1.3 Hypothesis

Under Cameroonian Law, damages are recoverable for defective products in breach of a contractual and tortious liability. However, the above problem of unfairly balanced rules of damages can be solved, if the law adopts a universal rule for assessing damages in contract and tort.

1.4 Research Question

1.4 .1 Main Questions:

What is the nature of defective products and recoverable damage under contract, tort and Cameroonian laws?

1.4.2 Specific Questions:

• What are defective products?
• What are conditions for liability in contract, tort and Cameroonian law?
• What are the damages that are recoverable with respect to defective products under contract, tort and Cameroonian law?
• Are recoverable damages with respect to defective products under contract and tort the same or not?
• What can be done to improve the situation or what are the possible recommendations that can be proposed?

1.5 Research Objectives

1.5.1 Main Objective

The main objective of this research work is to examine the nature of defective products and their recoverable damages under contract and tort.

1.5.2 Specific Objectives

The specific objectives of this research are as follows:

• To examine the nature of defective products generally and particularly under contract, tort and Cameroonian law.
• To analyse situations under which damage for defective products are being recoverable under contract and tort.
• To bring out a comparative analysis as regards defective products under contract, tort and Cameroonian law.
• To distinguish liability in contract, tort and Cameroonian law for defective products
• To proposed some possible recommendations that could be taken into consideration.

[1] Miller C.J. (1991) Product Liability and Safety Encyclopedia, 2^nd edition, Oxford University Press.

[2] DAVID G. Owens Product liability principle of justice for the 21^st century (1990) at htt// digital commons. Pace edu/ plr, Accessed 31^ST March (2020)

[3][1877] 2 QBD 102.

[4] Miller C.J. [ 1991], Product Liability and safety Encyclopaedia, 2^nd edition, P3, Oxford University Press.

[5]  Giorgio R. Product liability and protection of EU Consumers, (2019) Journal of International Law.

[6] Galega Samgena .D. The Wilderness At The Dawn of The Millennium: The Untolg Truth About Cameroonian Consumers  And The Global Challenge, (2009), African Journal of International and Comparative Law, pp319-336