Product Liability & the Consumer Protection Act

What is meant by Product Liability?

Product liability is concerned with making the manufacturers of products liable when a defect in that product has caused injury or harm to another person.

Common Law Product Liability

Duty of Care in Negligence

There is a common law tort of product liability when framing it in the guise of negligence, that is that the manufacturer of a product was negligent in causing the product to be defective and that negligence has caused harm to an individual.

As is always the case with negligence the following elements need to be established:

  • Duty of Care
  • Breach of the Duty
  • Causation
  • Damage or Injury

Often the problematic issue in these cases was establishing that the product was in fact defective this establishing that the duty of care had been breached. 

Following the introduction of the Consumer Protection Act 1987 we now have a strict liability tort for Product Liability.

Consumer Protection Act 1987

Part 1 of the Consumer Protection Act 1987 implemented the European Community Directive on Liability for Defective Products 1985 (85/374/EEC) which introduced the notion of strict liability for defective products into UK Law.

Strict Liability

This means that if there was a defect in a particular product then the manufacturer of the product would be automatically liable for any harm caused by that defect whether he or she was at fault or not.

Any Damage

Under Section 2(1) of the Consumer Protection Act 1987 damage is established when there has been “any damage”. This is taken to mean that any person who suffers damage is entitled to claim, therefore it is not simply limited to the person who bought the product – the consumer.

Excluded Damage

Section 5 of the Consumer Protection Act 1987 excludes the following kind of damage from the strict liability tort of defective products:

  • Loss or damage to the product itself
  • Damage to business property not ordinarily intended for private use
  • Property damage valued under £275

Producer

The producer of the product is taken to mean the following:

  • any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
  • any person who has imported the product into a European Union member State from a place outside the European Union member States in order, in the course of any business of his, to supply it to another.

Product

Under Part 1 of the Consumer Protection Act 1987 the product is defined as the following:

  • Any goods which can include substances, growing crops and things comprised in land by virtue of being attached to it and any ship, aircraft or vehicle.
  • Electricity – defects does not include a power cut
  • Products comprised in other products as component raw material or likewise. This means that buildings themselves will not be included whereas the materials used to make up those buildings will be.

The Consumer Protection Act (Product Liability) (Modification) Order 2000 introduced another EU Directive into England and Wales which now means that food sold in its raw state now falls within the definition of product and is thus covered by the legislation.

Defective Products

What is meant by a defect?

Under Section 3(1) of the Consumer Protection Act a product is said to be defective if the safety in the product is not such as persons are generally entitled to expect.

When determining what a person should generally be entitled to expect the following factors are taken into consideration:

  • The manner and purposes for which the product has been marketed. When examining this such things as the packaging, the use of a mark, any warnings on the product and instructions will be taken into account.
  • What might reasonably be expected to be done with or in relation to the product
  • The time when the product was supplied to another by its producer

Looking at the definition of defective contained within the Consumer Protection Act it is clear that manufacturers are thus able to protect their products by placing warnings and instructions on their product.

When looking at the time when the product was produced it may be that people should reasonably expect safety of certain products to have deteriorated after a period of time.

Similarly if a newer version of a product has improved safety features that does not necessarily mean that the older model will fall below the required safety standards.

Does the damage have to have been caused solely by the defect?

Under Section 2(1) of the Consumer Protection Act the damage must have been caused wholly or partly by the defect. This shows that in order for strict liability to apply the defect need not be the sole cause for the harm but it must have been some of the cause.

Are there any defences against Product Liability?

The following defences against Product Liability are detailed in the Consumer Protection Act 1987:

  • If the defendant did not supply the product to another – an example of this would be a product which has been stolen
  • If the defendant did not supply the product in the course of business – for example if it was a gift
  • The product simply was not defective when the defendant supplied it