Tort: Defective Product Liability

Strict Liability for Defective Products

The Scope of the Consumer Protection Act 1987

The Basic Scope of Liability

Any person to whom the Consumer Protection Act 1987 applies is liable for damage caused wholly or partly by a defect in a product.

Who Does the Consumer Protection Act 1987 Apply To?

The primary types of defendant which the Act applies to are:

Producers
Manufacturer, producer, welder

The producer of the product is the person who manufactured, won, abstracted or engaged in an analogous process with the product: s 1(2), s 2(2)(a).

Own-Branders
Own brand shopping, supermarket

An own-brander is ‘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’: s 2(2)(b).

Importers
Import, importers, boxes

An importer is any person who imported the product into the EU from outside the EU ‘in order, in the course of any business of his, to supply it to another’: s 2(2)(c).

However, any other person who supplies a product to any other person in the supply-chain can be liable if:

  • The claimant requests that the defendant identify a producer, own-brander or importer of the product; 
  • That request is made in reasonable time when ‘it is not reasonably practicable’ for the claimant to identify the producer, own-brander or importer; and
  • The defendant fails within a reasonable period of time to comply with the request or provide the identity of their supplier: s 2(3).

A person who supplies a product comprised of other products or raw materials is only treated as supplying the overall product. They are not treated as also supplying the component products or raw materials: s 1(3). 

Where multiple people might be liable for the same loss, each defendant is joint and severally liable: s 2(5).

What is a ‘Product’? (s 45)
Product, consumer, shopping, handbags

A product is ‘goods’ and electricity. ‘Goods’ includes (but it not limited to): substances; growing crops; things attached to land; ships, aircraft and vehicles; components and raw materials used in other products. The Consumer Protection Directive defines ‘goods’ as ‘all movables’ (Art 2).

When is a Product ‘Supplied’? (s 46)
Supply, trucker, truck

A product is supplied when it is: sold; hired out; lent; subject to a hire-purchase agreement to furnish the goods; furnished in performance of any contract for work and materials; provided for consideration other than money; provided in connection with the performance of a statutory function; or given as a prize or gift. Gas and water is supplied when it is made available.

What is a ‘Defect’?

Section 3 of the Consumer Protection Act 1987 states that there is a defect in a product if ‘the safety of the product is not such as persons generally are entitled to expect’. The courts should take into account:

Marketing, receipt

The way the product was marketed (including price) (s 3).

get-up, product, bottle, champagne

The get-up and any marks used in relation to the product (s 3).

Time, clock

The time at which the product was supplied (s 3).

Fool, foolish, stupid, prank

Anything which ‘might reasonably be expected to be done with or in relation to the product’ (a danger arising only out of misuse is unlikely to be a defect): Chadwick v Continental Tyres [2008] ScotCS CSOH 24).

Instruction, warning, lighthouse

Instructions or warnings provided ‘with respect to, doing or refraining from doing anything with or in relation to the product’ (s 3).

Mushrooms, safety, dangerous

The safety of comparable products on the market: A v National Blood Authority [2001] EWHC 446 (QB). 

The court may not assume there is a defect solely because later versions of the product are safer: s 3(2). In addition:

Blood test, doctor, medicine, science

Whether the defendant could have avoided the harm is not relevant: A v National Blood Authority [2001] EWHC 446 (QB).

Latent defect, proof, DNA, hidden

The claimant does not have to prove what caused the defect: Ide v ATB Sales [2008] EWCA Civ 424.

Hot chocolate, coffee, tea

Aspects which are inherent to how that type of product works (such as coffee being hot) are not considered defects: Bogle v McDonalds Restaurants [2002] EWHC Civ 490.

Spiral Staircase

Risks which are well-known and accepted by the public (such as birth control not being 100% effective) are not considered defects:  Richardson v LRC Products [2000] 59 BMLR 185. 

When determining whether the product is defective, some courts have distinguished between standard and non-standard products: A v National Blood Authority [2001] EWHC 446 (QB). Not all cases have approved of this approach, however: see Wilkes v DePuy International Ltd [2016] EHWC 3096 (QB)). 

Standard Products
essential oils, oil, standard, herbs

A standard product is a product that is built and performs the way the maker intended. In these cases, the claimant is arguing that the defect is a harmful characteristic inherent in the design and ordinary performance of the product.

If the product is standard, the court will look at all the characteristics of the case to determine if the product is safe for foreseeable use: A v National Blood Authority [2001] EWHC 446 (QB).

The social utility of the particular design of the product can be relevant if that feature’s utility outweighs its risks: Wilkes v DePuy International Ltd [2016] EHWC 3096 (QB). This is assessed in general, not with respect to the impact on the specific claimant.

Non-Standard Products
Defective car, broken

A non-standard product is a product which is different from other products in the same series: those which are not built and do not perform as intended. In these cases, the claimant is arguing that the defect is a characteristic which makes the non-standard product different from the rest. 

If one of the characteristics of a non-standard product which does not occur in other products of the same type is harmful, the product is normally treated as defective unless there is widespread public knowledge and acceptance of that kind of deviation. The social utility of the product is not relevant: A v National Blood Authority [2001] EWHC 446 (QB).


Defences

The producer may still escape liability if he can show one of six defences. The burden is on the producer to show these six defences.

EU Law Defence
EU flag, european union

It is a defence to show the defect is attributable to a requirement imposed by EU law: s 4(1)(a).

Failure to Supply Defence
Supplier, warehouse

It is a defence to show that the defendant has never supplied the product to another: s 4(1)(b).

Later Defect Defence
Time, later, alarm

It is a defence to show that the defect did not exist in the product at the relevant time: s 4(1)(d).

Non-Business Supply Defence
Charity, volunteers

It is a defence to show that the supply was not in the course of the defendant’s business and they are either not a producer, own-brander or importer or is are only one of those things for non-profit purposes: s 4(1)(c).

Non-Discoverable Defect Defence
Scientific knowledge, microscope, inspection

It is a defence to show that ‘the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control’: s 4(1)(e).


Subsequent Product Defence
Components, microchip, technical

It is a defence to show that the defect was a defect in a product which the defendant’s product had been built or comprised into and the defect was ‘wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product’: s 4(1)(f).

The Relevant Time

For these defences, the relevant time is:

  • In relation to electricity: the time at which it was generated, before it was transmitted or distributed; 
  • In relation to any other product: the time when the product was supplied by the defendant – if they are a producer, own-brander or importer. Alternatively, the time when the product was last supplied by a producer, own-brander or importer – if the defendant is someone else: s 4(2).

Section 4(1)(e): When Should a Producer be Expected to Discover a Defect?

The case of C-300/95 Commission v UK [1997] ECR I-2649 decides that:

  • What a producer should be expected to discover is based on the opinion of relevant experts in the field. The court will look at the most advanced studies and tests in the field at the relevant time.
  • This means the defence may be unavailable even if the risk is newly-identified and has not been widely accepted yet. 
  • It is irrelevant that the producer could not have become aware of the knowledge, as long as it exists. 
  • However, the knowledge must have been accessible at the time. This has been interpreted to mean that the knowledge must be published: A v National Blood Authority [2001] EWHC 446 (QB). 

If the risk is known about, the defence does not apply. It does not matter that there is nothing the defendant can do to prevent the risk or detect which products have it: A v National Blood Authority [2001] EWHC 446 (QB). 


Remedies

Special Damage Rules

‘Damage’ under the Act includes personal injury, death, property damage and loss of property: s 5(1). Damage to the defective product itself or to any product of which it is a component is irrecoverable: s 5(2).

The defendant is not liable for any loss of or damage to property which: 

  • Is not ordinarily intended ‘for private use, occupation or consumption’ and which is not intended by the claimant mainly for private use, occupation or consumption: s 5(3); or
  • Would not result in a damages award of more than £275, before interest: s 5(4).

The defect must cause the loss in accordance with the normal rules of causationMcGlinchey v General Motors (UK) Ltd [2012] CSIH 91.


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Defective Products Quiz

Test yourself on the principles of defective products liability.

1 / 12

Which four of the following are defences to a claim under the Consumer Protection Act 1987?

2 / 12

Can something which is inherent in how the product operates constitute a defect for the purposes of the Consumer Protection Act 1987?

3 / 12

What must be established to hold a supplier who is not primarily liable under the Consumer Protection Act 1987 liable for defects in a product?

4 / 12

For the purposes of the defences to the Consumer Protection Act 1987, when is 'the relevant time'? (Three answers)

5 / 12

For the purposes of the defence under s 4(1)(e) (the state of scientific and technical knowledge) of the Consumer Protection Act 1987, when can a producer show they could not have discovered the defect?

6 / 12

If a risk is well-known to and accepted by the public, can it constitute a defect for the purposes of the Consumer Protection Act 1987?

 

7 / 12

When is a product 'standard' for the purposes of the Consumer Protection Act 1987?

8 / 12

Is the social utility of the product relevant to whether it is defective under the Consumer Protection Act 1987?

9 / 12

What type of defendant is primarily strictly liable for harms caused by defective products? (Three answers)

10 / 12

When is a product 'defective' for the purposes of the Consumer Protection Act 1987?

11 / 12

What factors are relevant to whether a product is defective for the purposes of the Consumer Protection Act 1987? (Five answers)

12 / 12

What kinds of damage cannot be recovered using a claim under the Consumer Protection Act 1987?

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