- The manner in which the product has been marketed or providing any kind of instruction or warning or doing something or refraining from doing something.
- reasonably expected to be done for a product
- time of supplying the product by the manufacturer (UK Legislation, 2011)
Section 4(1) of the act provides for certain defences for manufacturers under the civil proceedings code. 2(e) provides that when the product was being manufactured and the state of art and the scientific knowledge that was prevalent at that time (Commercial Angles, 2001).
In all the circumstances, the burden of proof was on the producer who had to prove his innocence. In the permeable of the Act, it has been mentioned that in order to protect the health and wellbeing of the consumer and property, it is important to measure the defectiveness not from the fitness of the product but from the poor safety standards of the product, the public is exposed to (Free Advice, 2011).
If the producer of the product is able to provide evidence due to certain extraordinary circumstances there was certain damages caused and this was the inclusion of a fair appointment of risk
The Directive 85/374/EEC of the Council of the European Communities dated 25 July 1985 was passed first followed by the Consumer Protection 1ct 1987. Under Section 3 of the consumer protection act, the meaning of defect is mentioned. Whereas in Article 6 of the Directive the definition of defect has been mentioned. There are certain things that a standard or reasonable person would expect from the product in all situations. In the directive it has been mentioned as to what an individual should expect from the product. In case there is lack of safety for the public from what the public is entitled to expect, it refers to a defect in the product. The fitness of an article is not considered in determining if a defect is present (Fre Advice, 2011).
In the article the respondent had purchased (Abouzaid), there was a risk present when the article had sprung back. The public expectations had changed from the year 1990 to 1999 in England due to the presence of changes to the Consumer Protection Act. There was a difference in what the public was entitled to expect with relation to the safety of the product. There has been no technical advances in the field of elasticised technologies over the period of 1990 to 1999 which would affect would the public would be entitled in terms of safety (Pill, 2000).
Hence, within the scope of the Consumer Protection Act of 1987, the elastic spring had constituted a defect. Here, there was a risk of losing the control over the elastic strap when in fact the eyes were in line of the elastic recoil. The designing of the product itself was very defective as it created a risk for the user and the user did not have any kind of precaution to reposition him in order to change his or her position. The safety of the product was in question as it was far below the standard of what the public was entitled to expect. Here the risk arose in that the design of the product itself was such that there was an element to cause vulnerable damage to the eye resulting in serious consequences. If there was damage instead to the hand it would not have constituted risk of the public. However, this kind of defect was enough for the court to consider negligence on the part of the manufacturer. It was not needed for the court to go further and identify what had actually had to be done by the manufacturer. Besides, it was clear that the company could have done many other things including placing a non-elasticised mean of fastening the seat belts (Pill, 2000).
There was a potential defence available to the appellants (Mothercare Co Ltd) under the Consumer Protection Act, 1987. This defence was provided by Section 4(1) (e) takes for granted the finding that such a defect is present in the product. There is a database which would have all such instances of comparable cases where damage has occurred to people from using such or similar products. In the year 1990, Mothercare pointed out there was the absence of any kind of documented cases of comparable damage arising from the use of similar product. These cases would constitute technical knowledge. Section 4(1) (e) provided certain developmental risks defences for the manufacturer and due to the presence of these points, the action of the manufacturer could not be considered as negligent. The manufacturer instead held the respondent liable by trying to attach the product and causing injury to self (Commerical Angles, 2011).
In this case, the expert witness chosen was an engineer. There was a potential escape route for the manufacturer as during the period of 1990, it was known that childcare products experts did not find any kind of potential risks arising from similar accidents at that time and hence did not find it a problem. The expert witness said that from this case, he would prescribe all the manufacturers about the safety defect that is present in product and once this was identified, the manufacturers had to inform the consumers of the presence of such a risk or take immediate appropriate action to prevent the development of damage. These precautions had to be mentioned in the instructions of the product (Free Advice, 2011).
However, to deal with this potential defence the company had, the Judge took a very intelligent approach. He said that irrespective of the prevision cases of such or similar accidents in using such products, the product had a defect. This defect contained a risk which was likely or unlikely cause of an accident whether in the year 1990 or 1999. Here there was not necessary for the presence of a previous case of a defect. Negligence was a common law and it had to be foreseen that such an injury could occur which was evident from the case. Here, the record of injury did not come under the purview of scientific and technical knowledge. The Judge did not hold the consumer for contributory negligence. He even did not make it evident which route had been chosen – strict liability, common law negligence or both. The company Mothercare may have not been negligent under the Act, but their product was defective under Part 1 of the Consumer Protection Act 1987. The court agreed to the expert witness that a prudent manufacturer would have accepted the presence of risk during that period of time. Hence, due to the absence of any kind of standards, Mothercare did not breach the common law standards of duty of care. Under Section 3 of the Consumer Protection Act however, constituted a defect due to the basic design of the product, as it did not provide safety to a level that the consumer was entitled to. There was little or no change to the public expectations between the years 1990 and 1999 as there was any data achieved from scientific and technical tests. Hence, there was a risk in the year 1990 and the risk was same in the year 1999. Here, the doctrine chosen by the court was strict liability as provided by the Consumer Protection Act 1987. The public is entitled to certain safety levels even if the producer could not have reasonable anticipated the presence of such risks and taken measures to protect against. Here, the court did not consider the state of scientific and technical knowledge, and said that it was a simple issue to identify the defect by using simple practical tests. Between the year 1990 and 1999, there were no such changes that pointed the performance of such tests. However, the manufacturer had not thought of conducting such tests, for which the strict liability clause had applied. The court even expressed whether the presence of any kind of accidents recorded would constitute the scientific and technical knowledge, and may be disallowed by the strict liability doctrine (Commerical Angles, 2010).
Strict liability is a legal doctrine that would hold certain people liable for their actions even though they may not be at fault. usually it would be applicable in case people are engaged in certain high-risk tasks, such as setting up an industry using dangerous chemicals, blasting activities, using wild animals, etc, or any activity that holds the public at risk. Here even if the company performing such activities takes appropriate precaution despite which the accident arose, the company would be held liable. In such a circumstance, negligence cannot be proven; as there are certain standards of care defined which have to be missed by the manufacturer. All that needs to be proven in the case of strict liability is that the product should be defective. Hence, it is a much higher standard than mere negligence, and often manufacturers have to use a number of tests to identify ways and means by which people will use the product and accordingly design the product (Free Advice, 2011).
In other cases, the presence of scientific and technical knowledge had the capabilities of throwing greater light on the abilities of the product and the presence of any defect. However, this was not the situation in this case. This was because there was a defect evident even though scientific and technical knowledge was not present.
References
Commercial Angles 2011. Strict Product Liability under the Consumer Protection Act, [Accessed: 2011, April 23]. [Website: http://www.tradeangles.fsbusiness.co.uk/articles/product_liability.htm
Free Advice 2000. Legal Remedies, [Accessed: 2011, April 23]. [Website: http://law.freeadvice.com/general_practice/legal_remedies/strict_liabilty.htm]
Legislation UK 1987. Consumer Protection Act, 1987 [Accessed: 2011, April 23]. [Website:].
Pill, L. J. 2000. Court of Appeals, {Accessed: 2011, April 23]. [Website: http://docs.google.com/viewer?a=v&q=cache:DZ9dCVMTA-8J:www.a-level-law.com/caselibrary/ABOUZAID%2520v%2520MOTHERCARE%2520(UK)%2520LTD%2520%255B2000%255D%2520B3.00.2273%2520-%2520CA.doc+Abouzaid+v.+Mothercare+(UK)+Ltd+%5B2000&hl=en&gl=in&pid=bl&srcid=ADGEESi5WknLlbStOWsBEfb0aCmOac5ziYzkBS3HIMFaWGBEjXyJ_lgl6MkHULMk4kmE0-1T6BeTSin6eWaonr-rcyn-hf90kEi7d40iBI5HGEN58MkX2MwX1LIjOX_V1caJFTSJtBLW&sig=AHIEtbT-Km48bieMzlj3mLr1TaPU4Gmabg&pli=1]
