TOPIC:
PRODUCT LIABILITY LAW – UNSAFE, DEFECTIVE AND UNREASONABLY
DANGEROUS PRODUCTS
By
Samuel Baah-Boateng

CONTENTS
1.0 Objectives and Reasons
2.0 Introduction
3.0 Brief History
4.0 Theories of Product Liability
4.1 Negligence
4.2 Breach of Warranty
4.2.1 Express Warranty
4.2.2 Implied Warranty
4.2.3 Merchantability and Fitness for a Particular use
4.3 Strict Liability
5.0 Responsible Parties
6.0 Types of Product Defects
6.1 Design Defects
6.2 Manufacturing Defects
6.3 Marketing Defects
7.0 Conclusion
8.0 Reference

1.0 OBJECTIVES AND REASONS
This research focuses on product liability: the liability that manufacturers and other
sellers have to immediate purchasers, users, and consumers of products, or to affected
bystanders, for physical injury and property damage caused by defective products they
place on the market. The research sets to find out some background on the shift in law
surrounding the protection of the public from harmful products placed on the market and
also the three well-recognized theories of liability—negligence, breach of warranty, and
strict liability—that a buyer may use as the basis for recovery if he or she is injured by a
defective product.

2.0 INTRODUCTION
The law of product liability is the area of law which deals with the liability of the
manufacturer, wholesaler or retailer of a product for injuries resulting from dangerous
and defective products. Products subject to the law run the spectrum from food, drugs,
appliances, automobiles, medical devices, medical implants, blood, tobacco, or even
commercial jets. At common law (law derived from judicial holdings carried over to the
United States from England) the sale of a product was viewed as a commercial
transaction upon which only the parties to the commercial contract could sue.
The law has evolved to the point where today virtually anyone injured by a defective
product that is unreasonably dangerous or unsafe, the injured person may have a claim or
cause of action against the company that designed, manufactured, sold, distributed,
leased, or furnished the product. In other words, the company may be liable to the person
for his injuries and, as a result, may be required to pay for his damages. That, in short, is
product liability; and, not surprisingly, the legal liability that arises out of the design,
manufacturing, distribution and sale of defective or dangerous products.

3.0 BRIEF HISTORY
While the product liability cases today stem from the Consumer Product Safety Act
(CPSA) of 1972 ("CPSA," 1972) prior historical cases and events fueled the debate and
subsequent passage of the act.
Prior to the turn of the century the general attitude was that of caveat emptor, or “buyer
beware” based on common law. “The logic was simple: people should examine what they
are to receive before they buy it.” The origin for caveat emptor stem from “early English
social and legal philosophy reflected [in] the manufacturing nature of the economy
(Vaughn, 1999).”
As products increased in complexity and sophistication, it became more difficult for a
buyer to discover product defects with a simple inspection. In early product liability
cases, the right to sue for damages caused by a defective product was generally limited to
the parties in direct contract or a third-party beneficiary of a contract. In product liability
cases, this was called “privity of contract,” which is defined as the direct contractual
relationship between a seller and the immediate buyer.
In 1916, the McPherson v. Buick Motor Company case resulted in abolition of privity
requirements in product liability. It remains one of the best-known product liability cases.
Elimination of requirements of privity is believed to have had the greatest impact upon
the development of product liability.

4.0 THEORIES OF PRODUCT LIABILITY
There are a number of theories or counts upon which an injured party can bring an action
in product liability law. The plaintiff may include a count for each theory, or may choose
to sue on only one. The theories are:
• Negligence
• Breach of Warranties
• Strict Liability

4.1 Negligence
Negligence, is the failure of a person to act carefully (exercise reasonable care), thereby
causing another person to suffer physical injury or property damage (e.g., a defective tire
blows out and causes total loss of the car). A manufacturer can be held liable for
negligence if lack of reasonable care in the production, design, or assembly of the
manufacturer's product caused harm.
As applied to product liability, the law of negligence imposes a duty on the manufacturer
or other seller in the chain of sale to exercise reasonable care to place a safe product on
the market. A safe product is one that is free from defects.
A basic negligence claim consists of proof of
• a duty owed,
• a breach of that duty,
• the breach was the cause in fact of the plaintiff's injury (actual cause),
• the breach proximately caused the plaintiff's injury
• and the plaintiff suffered actual quantifiable injury (damages)
As demonstrated in cases such as Winterbottom v. Wright, the scope of the duty of care
was limited to those with whom one was in privity. Later cases like McPherson v. Buick
Motor Co. broadened the duty of care to all who could be foreseeably injured by one's
conduct.
Over time, negligence concepts have arisen to deal with certain specific situations,
including negligence per se (using a manufacturer's violation of a law or regulation, in
place of proof of a duty and a breach) and res ipsa loquitur (an inference of negligence
under certain conditions).
The case of McPherson v. Buick Motor Co. established beyond question that the
manufacturer or any other seller in the chain of distribution (e.g., a wholesaler or retailer)
responsible for placing the defective product on the market is liable. This case further
established that others (e.g., innocent bystanders) who were harmed by the defective
product could also sue. Negligent conduct very often relates to a manufacturer’s improper
design of the product, a failure to inspect the product properly for defects after it leaves
the assembly line, a failure to test the product adequately, or a failure to warn of a known
danger related to the product.

4.2.0 Breach of Warranties
Breach of warranty refers to the failure of a seller to fulfill the terms of a promise, claim,
or representation made concerning the quality or type of the product. The law assumes
that a seller gives certain warranties concerning goods that are sold and that he or she
must stand behind these assertions.
The story of warranty begins with a contract for the sale of goods. In that contract, as an
inducement to buyers, sellers guarantee that the products they sell will conform to certain
qualities, characteristics, or conditions and that they are suitable for the use for which
they are intended. This guarantee by a seller is called a warranty.
If a warranty is false, the seller has committed a breach. If the buyer suffers harm as a
result of the breach, he or she may bring an action for damages. The primary breach of a
“warranty” is the fitness of use of the product.
Product liability law is primarily concerned with three of these warranties (Kionka,
1999):
• Express warranties
• Implied warranties
• Merchantability and fitness for a particular use
4.2.1 Express Warranties
An express warranty is an oral or written guarantee given by manufacturers and sellers
(e.g., retailers). Exactly what they promise in their express warranties is entirely up to
them. A manufacturer’s express warranty is generally in writing, either on a separate card
or as part of the instructions packed with the product. As indicated, express warranties
may be oral or written. Accepting an oral warranty is not a good idea because the buyer
may have a problem establishing its existence if the seller should deny having given such
a warranty.
The representations or promises relating to the material facts about the products, as
described in salespersons’ statements, in pictures or writing on product or product
packaging, and in advertisements persuaded the consumer to buy product. A breach
occurs when these representations are not true.
In other words an express warranty is “a promissory assertion of fact about the product
which the seller made as a part of the sales transaction and which was a ‘basis of the
bargain.”

4.2.2 Implied Warranties
An implied warranty is an obligation the law imposes on a seller. An implied warranty is
not in writing and is not part of the sales contract. When a sale of goods is made,
however, certain warranties become part of the sale even though the seller may not have
intended to create them. These implied warranties protect the buyer when there is little or
no opportunity to inspect the goods or the seller does not expressly warrant the goods.
Breach of the implied warranty is grounds for a suit for money damages if injury or
damage results from use of the product.
4.2.3 Merchantability and fitness for a particular use
Merchantability and fitness for a particular use – “requires that the product (and its
container) meet certain minimum standards of quality, chiefly that it be fit for the
ordinary purposes for which the goods are sold. This includes a standard of reasonable
safety.”
This is furthered with “fitness for a particular purpose” where the seller “knows or has
reason to know” what specific purpose the goods sold will be used for and the purchaser
of these goods is relying on the supplier to provide “suitable” goods.
4.3 Strict Liability
Along with negligence and breach of warranty, the third major area of products liability
that a buyer may choose as the basis for recovery if he or she is injured by a defective
product is strict liability. This theory, based on tort law, is now the dominant product
liability theory used as a basis for lawsuits in nearly every state. This originated from a
California court decision called Greenman v. Yuba Power Products, Inc. (1963).
Under a strict liability standard, once the plaintiff establishes that a product is defective,
liability results from that fact alone no matter how much care was applied during design,
manufacture, marketing, distribution and sale (Larson, 2003)
Strict liability (also referred to a strict product liability) focuses on the product itself and
not on the conduct of the manufacturer or others in the chain of sale. Courts in strict
liability cases are interested that a product defect arose but not how it arose. The injured
party, suing as the plaintiff, simply needs to show that a product was unreasonably
dangerous at the time it left the manufacturer’s or other seller’s control and that she or he
suffered an injury, without reference to negligence.
Unreasonably dangerous means the plaintiff must present evidence that the product posed
a substantial likelihood of harm because
1. it contained a design defect,
2. a flaw occurred in the manufacturing process, or
3. the product was not accompanied by appropriate warnings of a risk or hazard
(failure to warn)
The injured party does not have to show how or why the product became defective.
Consequently, even an innocent manufacturer—one that has not even been negligent—
may be liable if the injured party can show a link between the unreasonably dangerous
product and the injury. Without proving to the court that this link exists, the injured party
may not prevail in a lawsuit under the strict liability theory.
Under a strict liability standard, once the plaintiff establishes that a product is defective,
liability results from that fact alone no matter how much care was applied during design,
manufacture, marketing, distribution and sale (Larson, 2003).

5.0 RESPONSIBLE PARTIES
For product liability to arise, at some point the product must have been sold in the
marketplace. Historically, a contractual relationship, known as "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. Any person who foreseeably could have been injured by
a defective product can recover for his or her injuries, as long as the product was sold to
someone.
Liability for a product defect could rest with any party in the product's chain of
distribution, such as the manufacturer, wholesalers, a retail seller of the product, and a
party who assembles or installs the product. For strict liability to apply, 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.

6.0 TYPES OF PRODUCT DEFECTS
Under any theory of liability, a plaintiff in a product liability case must prove that the
product that caused injury was defective, and that the defect made the product
unreasonably dangerous. There are three types of defects that might cause injury and give
rise to manufacturer or supplier liability: design defects, manufacturing defects, and
marketing defects. Design defects are present in a product from the beginning, even
before it is manufactured, in that something in the design of the product is inherently
unsafe. Manufacturing defects are those that occur in the course of a product's
manufacture or assembly. Finally, marketing defects are flaws in the way a product is
marketed, such as improper labeling, insufficient instructions, or inadequate safety
warnings.

6.1 Design Defects
A design defect is some flaw in the intentional design of a product that makes it
unreasonably dangerous. Thus, a design defect exists in a product from its inception. For
example, a chair that is designed with only three legs might be considered defectively
designed because it tips over too easily.
Design defect claims often require a showing of negligence; however, strict liability may
be imposed for an unreasonably dangerous design if the plaintiff can present evidence
that there was a cost-effective alternative design that would have prevented the risk of
injury. In some cases, if a product was so unreasonably dangerous that it never should
have been manufactured, the availability of a safer design might not be required to hold
the designer liable.

6.2 Manufacturing Defects
A product has a manufacturing defect when the product does not conform to the
designer's or manufacturer's own specifications. Manufacturing defect cases are often the
easiest to prove, because the manufacturer's own design or marketing standards can be
used to show that the product was defective. But proving how or why the flaw or defect
occurred can be difficult, so the law applies two special doctrines in product liability
cases to help plaintiffs recover even if they cannot prove a manufacturer was negligent.
The first doctrine, known as "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 it
was not negligent.
The second rule that helps plaintiffs in product liability cases is that of strict liability. If
strict liability applies, the plaintiff does not need to prove that a manufacturer was
negligent, but only that the product was defective. By eliminating the issue of
manufacturer fault, the concept of no-fault or "strict" liability allows plaintiffs to recover
where they otherwise might not.

6.3 Marketing Defects
Marketing defects include improper labeling of products, insufficient instructions, or the
failure to warn consumers of a product's hidden dangers. A negligent or intentional
misrepresentation regarding a product may also give rise to a product liability claim.

7.0 CONCLUSION
We live in an age of consumerism. Our courts are becoming the tools used by consumers
to establish their rights. Liability is imposed upon the manufacturer or the seller, in part,
because they are in a better position to redistribute the loss among all users.
However, with the potential for, and increasing numbers of, frivolous lawsuits something
should be done to regulate the current system. This is not to say that society should
return to the days of caveat emptor, or “buyer beware,” but rather the system needs to
move away from the current trend of “seller beware.”
Although the legal theories affecting product liability have been liberalized over the
years, a manufacturer is not absolutely liable for injury/damages resulting from the use of
his product. Product liability cases have encouraged manufacturers to design,
manufacture and distribute safer products. Furthermore, product liability cases have
rightfully forced these same manufacturers to properly warn consumers of the potential
dangers with their products. Again, proper documentation of measures taken by a
manufacturer in designing, manufacturing and marketing a safe product is essential to
successfully defending a product liability litigation.

8.0 REFERENCES
a) Consumer Product Safety Act, 15 37 (1972)
b) Greenman v. Yuba Power Products, Inc. (1963)
c) Kionka, E. J. (1999). Torts In A Nutshell (Third ed.). St. Paul, MN: West
Group.
d) Larson, A. (2003, September 2003). Product Liability Law - Protecting
Consumers from Defective Products. Retrieved November 20, 2003, from
http://www.expertlaw.com/library/pubarticles/Product_Liability/product_l
iability.html
e) Legal-definitions.com.Negligance Definition. Retrieved November 19,
2003, from http://www.legal-definitions.com/
f) Legal-definitions.com.Warranty Definition. Retrieved November 19,
2003, from http://www.legal-definitions.com/
g) McPherson v. Buick Motor Co. (111 N.E. 1050)
h) Vaughn, R. C. (1999). Legal Aspects of Engineering (Sixth ed.). Dubuque,
IA: Kendall/Hunt Publishing Company
i) Winterbottom v Wright (1842) 10 M&W 109

IS THE PRINCIPLE OF UTMOST GOOD FAITH RELEVANT IN THE FORMATON OF THE INSURANCE CONTRACT?

TOPIC

IS THE PRINCIPLE OF UTMOST GOOD FAITH RELEVANT IN THE FORMATON OF THE INSURANCE CONTRACT?

By                                                       

Samuel Baah-Boateng       

CONTENT

1.0              Objectives and Reasons

2.0              Introduction

3.0              History and Definition

4.0              The Principle Of Utmost Good Faith; Significance To Insurance

5.0              What is Material Fact?

6.0              Test of materiality

7.0              Conclusion

8.0              Reference

1.0              OBJECTIVES AND REASONS

This research sets to find out

·                     The history and definition of utmost good faith

·                     The rationale of the principle

·                     The  defense of the principle

·                     The Way forward

2.0              INTRODUCTION

Insurance contracts belong to the special type of contracts based on mutual trust and reliance (contractus intuinae personae) where the principle of utmost good faith (uberrima fides) is applied ¹. This means, in simple terms, that the insurer and the person who is applying for insurance have the duty to deal honestly and openly with each other that lead up to the formation of the contract. The duty of utmost good faith (uberrima fides) is central to the buying and selling of insurance. This duty may also continue whilst the contract is in force. Under this principle, the concealment of any material facts of which the other party was ignorant was prohibited in insurance contracts and the breach of this duty entitled the aggrieved party to avoid the contract entirely.

3.0              HISTORY AND DEFINITION

The “good faith” in insurance is well over 200 years old. During that time, it has been codified into status and subjected to attacks and criticisms at various times. Some say that in modern commercial practice, the duty of good faith is honoured more in the breach than the observance. Others believe that it may be an anachronism in a modern age of remorseless commercial pressures, instant communication and hybrid transaction. Nevertheless, it survives through occasional criticisms that harsh judgments make bad law and create uncertainty.

Lord Mansfield is credited with first articulating this concept in Carter v. Boehm (1766)².  This concept can be defined by the words of Lord Mansfield in Carter v. Boehm (1766): “Insurance is a contract of speculation. The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the assured only: the underwriter trusts to his representation and proceed upon the confidence that he does not keep back any circumstance in his knowledge, to mislead the underwriter into a belief that the circumstance does not exist, and to induce him to estimate the risqué as if it does not exist”³.

At the beginning of the 20^th Century, the English Courts was still saying that it is still an essential condition of an insurance contract that the underwriters shall be treated with good faith, not merely in reference to the inception of the risk, but in the steps taken out to carry out the contract ⁴.

4.0              THE PRINCIPLE OF UTMOST GOOD FAITH; SIGNIFICANCE TO INSURANCE

In every contract in general, both parties owe no positive duty towards each other beyond showing good faith. A policy of insurance is a contract of “utmost good faith”. ‘Good faith’ here signifies good intention and due care and caution. This emanates from the right of every person to know about every material fact associated with the subject matter of the contract and there is no escape from this. This follows the maxim caveat emptor (let the ‘buyer beware') as under the Sales of Goods Act, 1930

Generally, the rationale behind certain class of contracts requiring the parties to have duty of disclosure lies in two fold ⁵. First in such class of contracts, one of the parties is presumed to have means of knowledge which are not accessible to the other. In insurance contract the insurer knows nothing about the person who comes to get insured however the person who wants to get insured knows everything about himself and risks that he has in his life. Second, some class of contract may involve parties who are not at all at par with each other and that one party may have some advantage over the other, either economically or with other resources, thus in place of commercial relationship trust and confidence should be in place, requiring higher degree of honesty and disclosure of information.

Hence, the principle of utmost good faith under which the duty of disclosure in insurance contract is applied bases itself to the principle of equity as well as more simpler idea of common sense whereby it is only natural that the information that one party knows but not the other should be disclosed in case where that piece of information can affect the consent of the parties entering into the insurance contract. For this reason, even though Lord Mansfield only talks about insured’s duty of disclosure, such duty also lies on the insurer ⁶.

Hansell (1985: 147) defines utmost good faith as “….each party to a proposed contract is legally obliged to reveal to the other party all information which could influence the other’s decision to enter the contract whether the contract whether such information is required or not.” Therefore failure to reveal any vital, material or relevant information even if not asked, gives the aggrieved party the right to regard the contract as void ⁷.

Reinecke (2002: 112) also states that the duty of utmost good faith is pre-eminently concerned with pre contractual negotiations between the parties and has more specifically a close relationship with the Duty of Disclosure ⁸.

The obligation to observe utmost good faith gives rise to 2 duties on the party proposing insurance:

·         a duty to disclose all material facts to the insurer;

·         a duty not to misrepresent material facts to the insurer.

Contracts of insurance are within a special class of contracts known as contracts of utmost good faith ⁹. So it is utmost importance that both the insurer and the assured are bound to volunteer to each other to disclose before the contract is concluded. In Black King Shipping Corporation v. Massie ¹⁰, the requirement of utmost good faith to apply throughout the contract was discussed and the court held it in the affirmative. The duty of disclosure arises again when a contract is being renewed, since in law a new contract is formed.

The original rationale behind the duty of disclosure is apparent from the early leading case of Carter v. Boehm. There is of course, no doubt that some facts remain solely in the knowledge of applicants as in the case of Rozanes v. Brown ¹¹.  However, it has been suggested that there is no longer such an imbalance of knowledge, especially where consumers are concerned. For example, an insurer may have a better knowledge of the incidence of burglary or flooding in an area than a consumer who has only recently moved there ⁸. For this reason, even though Lord Mansfield only talks about insured’s duty of disclosure, such duty also lies on insurers.

A misrepresentation is a positive assertion of fact that is erroneous or incorrect, whereas non-disclosure refers to a failure to disclose or concealment of a fact. A partial answer can in certain circumstances amount to a misrepresentation. Misrepresentation in an insurance contract results when one party to the contract makes a misleading statement during the negotiation leading to the formation of the contract.  It may be, for example, that the applicant for insurance answers a question on the proposal form incorrectly. However, mere silence does not constitute a misrepresentation ¹². For instance suppression of material facts can render that which is stated false, when the facts are known to the person making the statement or possibly if he or she has the means of knowledge ¹³.

5.0              WHAT IS A MATERIAL FACT?

Another problem arises as to the definition of the term material fact. What may be material for one may be immaterial for the other and vice-versa. Material fact is defined as that fact whose disclosure “would have had an effect upon the mind of a notionally prudent insurer in estimating the risk” ¹⁴.

But, generally speaking, a material fact is one which affects the judgmental capacity of a person. It must be such that a different consequence would have occurred had it not been disclosed.

The duty to disclose extends in principle to all facts which are material therefore immaterial facts need not be disclosed. The question is not simply whether a reasonable person would regard the information as affecting the risk, but whether, in the opinion of a reasonable person, the information could affect the ‘reasonable insurer’s’ ¹⁵ decision as to whether to accept the risk or charge a higher premium than usual. 

All material facts should be disclosed before the contract is concluded. Material non-disclosure or misrepresentation entitles the insurer to avoid the contract ab initio if the insurer was induced to enter into the insurance contract by the non-disclosure or misrepresentation: Pan Atlantic Insurance Co. Ltd v. Pine Top Insurance Co. Ltd.  ¹⁶.

6.0              TEST OF MATERIALITY

The test of materiality is not what the insured considers material, nor what a reasonable insured would consider reasonable, but whether the fact would be taken into account by a prudent insurer when assessing the risk and determining an appropriate premium.

In order to establish materiality and inducement, it is necessary for an insurer to adduce evidence from underwriters that the non-disclosure or misrepresentation was material and did induce the contract. The insurer must show at least that, but for the non-disclosure or misrepresentation, the policy would not have been concluded on the same terms. It is not necessary, however, to show that it was the sole effective cause. The issue is one of fact. Frequently, expert evidence will also be called on the issue of materiality.

The duty to disclose extends in principle to all facts which are material therefore immaterial facts need not be disclosed. The question is not simply whether a reasonable person would regard the information as affecting the risk, but whether, in the opinion of a reasonable person, the information could affect the insurer’s decision as to whether to accept the risk or charge a higher premium than usual.

7.0              CONCLUSION

Thus, the principle of utmost good faith forms an integral part of insurance contract. It gives a fair chance of risk assessment to the insurer and also ensures that the assured fully understands all the terms and conditions of the contract. But this principle is more favourable to the insurer as it is the assured who has to generally make all disclosures. This is primarily because when this doctrine was evolved in the 18^th Century, the insurance market was in its infancy and thus required protection. However, the enactment of the English Unfair Contract Terms Act, 1997 has considerably alleviated the position of the assured who is now protected against unfair contractual terms. Further, the Insurance Act lays down that an insurance policy cannot be called in question two years after it has been in force. This was done to obviate the hardship of the insured when the insurance company tried to avoid a policy, which has been in force for a long time, on grounds of misrepresentation. However, this provision is not applicable when the statement was made fraudulently. Nevertheless, technological advancements have further made it possible for both parties to see to it that their interest is taken care of.

But, there are several other grey areas to this doctrine as well. There is still no clear cut distinction between as to what is material or immaterial and the same is largely dependent on the whims of the insurers and the terms of the contract. It is still very easy for an insurer to repudiate the contract on the slightest point of non-disclosure by treating them as warranties, thereby putting the assured in an even difficult position.

Another problem is with regards to as to what duration does the disclosure(s) need to be made. Common law cases may somewhat seem to have settled this point. However, all these problems need to be taken care of and an effective solution must be provided considering the principle of utmost good faith is one of the fundamental principles associated with insurance contract.

8.0              REFERNCES

¹ For the common law position governing the general law of contracts see,e.g., Keates v. Cadogan, (1851) 138 Eng. Rep. 234. For a review of the policy considerations underlying the general contractual position see J. BEATSON, ANSON’S LAW OF CONTRACT 263-64 (28th ed. 2002).

² Carter v Boehm (1766) 3 Burr 1905, 1909

³ 3 Burr. 1905, 1909 (1766)

⁴ Boulton v. Houlder Bros & Co (1904) 1KB784 @ 791

⁵ See for detail, Beatson supra note 5 at pg 264, Merkin supra note 3 at pg 115-118

⁶ See the detail Birds, John, Modern Insurance Law, Sweet & Maxwell, Third Edition 1993 pg 112-117, Merkin supra note 3 at 125-127 Srinivasan, MN Principles of Insurance Law Life-Fire-Marine-Motor and Accident, Wadhawa & Company 8^th Edition 2006 pg 219-220

⁷  Hansell D.S. (1985) The Elements of Insurance 4^th edition. Pitman

⁸ Reinecke M.F.B. , Shaik Van Der Merwe, Niekerk J.P. and Havenga P.  (2002) General Priciples of Insurance Law

⁹ John Birds, Modern Insurance Law, 4^th Edition, Sweet and Maxwell, 1997 at 100

¹⁰ (1984) 1 Lloyds Rep. 437, Cited from Ibid at 101

¹¹ Rozanes v. Bowen, (1928), 32 L.I.L.R. 98

¹² Keates v. Lord Cadogan 10 C.B. 591 (1851) cited in id. at pg 237

¹³ Sindell v. Cambridgeshire C.C. 1 W.L.R. 1016 (1994) cited in Beatson supra note 5 at pg 238 For example, a seller of the land told a purchaser that all the farms on the land were fully let, but omitted to inform him that the tenants had given notice to quite. Thus such representation of the fact was found to be a misrepresentation.

¹⁴ Kent, Michael QC, Current Issues in Insurance Law, Material Non-Disclosure: Proportionality, Good Faith and Reasonableness, Crown Office Chamber 2005

¹⁵ Test of prudent and reasonable insurer was conclusively adopted for non-marine insurance purposes in Lambert v. Co-operative Insurance Society 2 Lloyd’s Rep. 485 (1975)

¹⁶ Pan Atlantic Insurance Co. v Pine top Insurance Co. Ltd, 3 All E. 581 (1995)