Dear Martin
Many moons ago I wrote a little something on the topic:
‘Software, Information and the Concept of ‘Product’’ (1989) 9 Tel Aviv Studies in Law pages 147-163 which was cited in a case you might find interesting, St. Albans City and District Council v. International Computers Ltd. [1996] 4 All E.R. 481 Court of Appeal

All the best from
Jane




Jane Stapleton
Goodhart Professor 2011-12
Faculty of Law
University of Cambridge
10 West Road
Cambridge CB3 9DZ
United Kingdom
________________________________________
From: Guthrie, Neil [NGuthrie@blg.com]
Sent: Wednesday, April 04, 2012 6:51 AM
To: Andrew Tettenborn; HOGG Martin
Cc: obligations@uwo.ca
Subject: RE: Liability for a car crash caused by reliance on a map

There is a good overview of the Winter v G Putnam's Sons line of cases in Rosenberg v Harwood (3d D., Utah, 27 May 2011), a case involving injuries sustained by a pedestrian who relied (to her detriment) on a route across a busy roadway that had been suggested by Google Maps. Her claim against Google failed, for the reasons suggested below. (I gather the fact that she was blind drunk at the time of the accident was charitably overlooked by the judge.)

Neil

[cid:971474711@04042012-2C36] Neil Guthrie
National Director of Research | Directeur national de la recherche
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________________________________
From: Andrew Tettenborn [mailto:A.M.Tettenborn@swansea.ac.uk]
Sent: April 4, 2012 6:24 AM
To: HOGG Martin
Cc: obligations@uwo.ca
Subject: Re: Liability for a car crash caused by reliance on a map

I've always wondered about this, in particular the SGA / defective product issue.

The latter has come up in the US, where the predominant view is that no action lies for misinformation (see the colourful Californian decision in Winter v G. Putnam’s Sons, 938 F.2d 1033 (1991), where mushroom-hunters who ended up in hospital after incautiously relying on the Encyclopedia of Mushrooms failed in a product liability suit against the publisher). But there is a flourishing minority jurisprudence, interestingly enough often involving mismapping: e.g. Aetna Casualty Co v Jeppesen & Co, 642 F.2d 339 (1981). One problem, of course, is this: who is the "producer" of a book or map? I'm not sure it's the publisher, any more than an independent automotive designer "produces" a bum car. Logically the producer would seem to be the printer or the binder: which itself may be a strong argument against liability. It doesn't strike me that there's much social advantage in forcing every bookbinder in the kingdom to guarantee the safety of the information in the sheets he binds.

On the SGA point, there is one suggestion that a misleading book may be unmerchantable: St Albans City Council v I.C.L. Ltd [1996] 4 All E.R. 481, 493 (Glidewell L.J.). But even that has its difficulties: do we really want to see multiple SGA suits against Amazon -- or even corner-newsagent Patel -- in respect of misinformation in the stuff they sell?

Just my 0.02€ worth.


Andrew




On 04/04/12 10:57, HOGG Martin wrote:

A rally driver crashes his car during a race, alleging that printed route notes his co-driver was relying upon inaccurately stated the nature of a particular bend in the route. The publisher of the route notes is sued. Is the publisher liable? If so, is liability in contract (and if so, for breach of a duty of care, or for breach of an implied term as to the quality of goods?), in tort/delict for negligence, or is it strict liability for supply of a defective product?

It would have been useful to have seen all of these issues considered in a relevant case, but unfortunately a recent judgment of the Appeal bench of the Court of Session has tantalisingly failed to address the precise nature of any liability (holding merely that the route notes in question were accurate). The relevant litigation is Munro v Sturrock: the first instance decision, [2010] CSOH 116, is reported here:
http://www.scotcourts.gov.uk/opinions/2010CSOH116.html and the appeal decision, [2012] CSIH 35, handed down yesterday, is available here: http://www.scotcourts.gov.uk/opinions/2012CSIH%2035.html

I cannot work out from either judgment with any certainty whether the claim is seen as lying in contract or delict (tort) (this is not definitively stated, so far as I can see, anywhere). At first instance, there is discussion of whether or not the defender has been negligent, and if so whether the professional standard of negligence applies to him (the judge at first instance says he does not need to decide this, as on the facts the character of the bend was correctly described), but the judgment does not state whether any duty of care on the defender was seen as arising under contract or delict. There is mention by the judge that "The route notes with accompanying DVD were sold for £100", but he doesn't say whether it was the pursuer or co-driver who purchased them, so that doesn't resolve the issue of whether the claim was in contract or in delict. The appeal court's decision doesn't seem to make matters any clearer. It's always a matter of irritation to me when jud!
gments don
't make it clear what the basis of a claim is.

What struck me about the case was that it appears that two further possible avenues for a claim were not attempted, these being a claim either the Sale of Goods Act 1979 or the Consumer Protection Act 1987. As to the former, assuming that the driver was the purchaser of the route notes (and related DVD), might an alternative way of approaching the case have been to argue not breach of a (contractual) duty of care, but breach of s14 of the Sale of Goods Act? The route notes are goods, I think, and I wonder therefore whether it could have been argued that the goods were not of satisfactory quality under s14(2) or that they were not fit for the particular purpose for which they were sold under s14(3)?(on the facts, the judge at first instance says the notes were fine, and this decision was affirmed on appeal, but let's assume they were not) I should have thought that either s14(2) or (3) would have been arguable, and arguing such would have avoided the need to prove negligence !
on the par
t of the defender: all the rally driver would have had to have done was to show that the goods were not of the requisite quality. If the goods were not of the requisite quality, then damages would be claimable under (in Scotland) s53A of SOGA for losses 'directly and naturally resulting' from the breach, which would easily cover, I should have thought, the damage claimed to the car and, arguably, the "psychiatric injury" for which the driver was also claiming (although I wonder what others think of that point - while it seems to me that that sort of injury might be seen as arising 'directly and naturally', perhaps rally drivers are expected to be phlegmatic about crashes, in which case could one say it would not be a 'natural' result of a crash for a rally driver to suffer a psychiatric injury from a crash?).

As to the Consumer Protection Act 1987, I should have thought it was arguable that the route notes would also qualify as a product under the Act - if they do, it's odd that the Act did not figure in the claim, given the benefit of not having to prove negligence in relation to claims brought under the Act. Does anyone know of any cases where it has been argued that a 'map' is a product?

So, the decision is a bit of a disappointment for a number of reasons, which is a pity as it raises some nice issues of law.

Martin


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Andrew Tettenborn
Professor of Commercial Law, Swansea University

School of Law, University of Swansea
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Andrew Tettenborn
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