Lloyd's Maritime and Commercial Law Quarterly
Components and product liability: damage to “other property”
Andrew Tettenborn *
In the products liability context, it is well established that tort liability for damage to property is excluded where property merely damages part of itself. The question of what counts as part of the “same property” or as “other property” is, however, awkward. This article seeks to provide a possible answer to this question. Broadly, it reaches the following conclusions: (1) The question at issue is not a simple factual point, and the same item may be “same property” or “different property” in different contexts. (2) Items which are not firmly attached to an article and which have an independent use should never count as “the same property”. (3) Items which are so attached or whose only use is in combination with the property concerned should count as the “same property” if fitted either by the manufacturer or by a previous owner. If fitted by the present owner they should count as “other property”.
If you bring a product liability claim in tort, what loss can you recover? After some vacillation, we seem to have general agreement. You can sue for personal injury, or (at least in some cases) for damage caused to property of yours other than the item in question. By contrast, you cannot recover for simple economic losses: for example, where your car refuses to start, forcing you to pay for a taxi.1
Nor, more significantly, can you recover where the only damage you suffer is harm to the defective product itself, as where a boat with a fault in the fuel system catches fire and sinks at anchor without damaging anything else.2
In both cases you are limited to your rights, if any, against your immediate seller and anyone else who may have vouched for the product (such as the person who, being in a special relationship with you, negligently advised you to buy it, or the provider of a “stand-alone” guarantee). This is the position reached by English, and to a large extent American, negligence law; furthermore, it seems to apply whether the case is put on the basis of negligent manufacture simpliciter,
or on the basis of a failure to warn.3
Similarly with strict liability. Most US jurisdictions, when applying s. 402A of the Restatement of Torts
(the provision largely followed when giving effect to strict product
* Bracton Professor of English Law, University of Exeter.
1. Simaan General Contracting Co.
v. Pilkington Glass Ltd (No. 2)
[1988] Q.B. 758. See too The Rebecca Elaine
[1999] 2 Lloyd’s Rep. 1 (boat supplied with defective engine: no action against engine manufacturer for towage expenses due to breakdown); and Minchillo
v. Ford
[1995] 2 V.R. 594.
2. See Nitrigin Eireann Teoranta
v. Inco Alloys
[1992] 1 W.L.R. 498 (defective tubing fitted to industrial plant cracks, then later ruptures and devastates plant: for purposes of limitation, no cause of action when tube itself cracked); The Rebecca Elaine
[1999] 2 Lloyd’s Rep. 1 (boat supplied with defective pistons: no action against engine manufacturer for costs of repair when piston failed).
3. The Rebecca Elaine
[1999] 2 Lloyd’s Rep. 1. See too Bow Valley Husky
v. St John Shipbuilding Co.
[1997] 3 S.C.R. 1210; noted [1998] LMCLQ 305. So too, generally, in America: Sea-Land Service Inc.
v. General Electric Company
(1998) 134 F. 3d 149.
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