A product liability action in negligence can only be brought in respect of products which are dangerous. An action requires proof of damage, so the product must not only be dangerous but must actually have caused some harm as a result. A claimant cannot bring a negligence claim on the basis that a product could cause harm, if that harm has not actually happened, this was confirmed in D&F Estates v Church Commissioners. A claim will cover personal injury and damage to other property but not damage to the defective product itself. This can only be claim in contract. This means that difficulties can arise where the defect is an a component part of a bigger product.
Negligence requires proof of fault and of causation, the claimant must prove that the defendant’s failure to take reasonable care caused the defect that made the product dangerous. The claimant does not need to show exactly what it was the defendant did wrong, this was seem in Mason v Williams & Williams Ltd where the claimant was injured by a chisel and the court held that it was enough to establish that the defendant had been negligent. This approach was challenged in Carroll v Fearon but the courts stood firmly behind it. This case concerned a car crash which left a girl dead, a woman blinded and six others seriously injured. The crash was caused by faulty tyres made by Dunlop, and it became clear that the company knew there was a problem with the tyres but they had decided to conceal the risk rather than alert the public.
One factor that will make a difference is whether there is sufficient evidence that the defect existed when the product left the defendant’s hands. In Evans v Triplex Safety Glass Co Ltd the claimants windscreen shattered for no apparent reason but the court held that the defect could have been caused in the year after the glass left the factory, and it was known that the glass could be strained during installation.
The main drawback with negligence as a means of compensating users of dangerous products is the need to prove fault. Unless the claimant proves that a defendant has failed to take reasonable care, the defendant will not be liable for any risk caused by their products. This can be a difficult process given that in many product liability cases, the claimant will be an individual consumer and the defendant a large and wealthy company. Add to that the fact that the most convincing evidence of negligence in a manufacturing or quality control process is likely to come from someone involved in that process, and the problems increase.
This is a key area which needs to be changed if consumers are to be better protected against unsafe products. The need for the claimant to prove fault could be removed and a strict liability could be imposed so that manufacturers would be liable for any injury caused by their products, whether or not they were to blame for it. The risk could be insured against by the manufacturers and the cost distributed among the buying public. It is clear that the manufacturer stands to benefit financially from launching products so it could be seen as reasonable that they have to stand the cost of any injury caused by those products. The main argument against imposing strict liability is that it would strangle innovation and enterprise and potentially raise the price of products too high. This discussion on the introduction of strict liability also applies to the Consumer Protection Act 1987 discussed below.
Additionally, it may be an improvement if cases where not dealt with by the courts. Take for example a cure for liver disease that is subsequently found to cause side effect that can kill some patients, it could be argued that judges are not the most qualified to decide whether the risks to some people outweighs the chance of life to others. This decision could be made elsewhere, where it is not linked to individuals’ claims for compensation, and where the whole social context can be examined.
The Consumer Protection Act 1987 was passed against a background of concern about the inability of the law of negligence to protect consumers against dangerous products, and in particular, the Thalidomide scandal. It was felt that every day of our lives we consume, use, or simply come into contact with countless different products and we should be able to assume that those products are safe. Not absolutely safe, as that remains unattainable, nor safe at unbearable cost to industry as that would put innovation at risk, but as safe as is reasonable to expect. The aim of the Act was to help safeguard the consumer from products that do not reach a reasonable level of safety. However, the actual trigger for the new law was the drive towards establishing a single market across the countries of the EEC. In 1985, the EEC issued the Product Liability Directive 85/374/EEC and the Consumer Protection Act 1987 was passed to give it effect.
There are three types of product defect: a manufacturing defect occurs when a product fails to comply with the manufacturer's product; a design defect occurs when the product specifications are at fault and present a hazard; and a duty to warn defect refers to the producer's responsibility to provide appropriate warnings and instructions to enable the consumer to use the product safely.
Anyone who suffers personal injury or property damage caused by a defective product can sue under the Act. This includes bystanders as well as actual users of the product. The Act imposes liability on the producer of the defective product, and gives this term a wide definition. It includes the manufacturer, the person who wins or abstracts it, anyone responsible for a process which adds essential characteristics to the product and retailers who sell others companies products under their own brand name. Where goods originate outside the EU liability is imposed on the person who first imported the goods into the EU. If the supplier fails to identify either the producer or their own supplier within a reasonable time, they will be liable as if they were the producer.
The Act only covers defects that are dangerous. Section 3 states that a product will be held to be defective under the Act if ‘the safety of the product is not such as persons generally are entitled to expect’. This objective test means that the courts can set the standard according to what is reasonable, the fact that the claimant personally might have expected a higher standard is not relevant, nor is the fact that a safer version is subsequently put on the market.
In assessing the standard of safety the Acts directs the courts to take into account ‘all the circumstances’ and mentions three factors which are considered relevant. The first is the way the product is marketed, this can affect the standard of safety which people are entitled to expect. The second factor concerns ‘what might reasonably be expected to be done with or in relation to the product’. The third factor relates to the time when the product was supplied by the producer to another. This test is unsatisfactory for design defects as consumers will not know what to expect because they will not usually know how safe it is possible to make the product.
The Act only covers personal injury and damage to property worth more that £275 with no financial limit on producer’s liability. Property damage worth less is not covered, nor is economic loss, including damage to the defective product itself. Damage to business property is also excluded. As we are looking for areas to improve protection for consumers these limitations could be lifted to ensure the consumer is fully compensated.
The key difference between a claim under the Act and a product liability claim in negligence is that the act is said to impose strict liability. All the claimant has to prove is that the product is defective under the terms of the Act, and that on the balance of probabilities this defect caused them personal injury or damaged property worth more that £275. However it has been suggested that the Act actually offers little more than a standard of negligence, with the burden of proof reversed. There are arguments for and against imposing strict liability as my earlier discussion outlined.
As liability is strict but not absolute there are a number of defences. The ordinary defence of contributory negligence applies under the Act, and can be applied where the claimant has been caused damage partly as a result of a defective product, and partly by their own fault. Section 4 of the Act also sets down six specific defences which a defendant can put forward to avoid liability.
A defendant can avoid liability by proving: that the defect is attributable to compliance with any requirement imposed by law; that they did not actually supply the product; the goods have not been supplied in the course of business; that the defect arised after the producer released the product (this is for the defendant to prove); that the defect is in the subsequent product not the component supplied; and most controversial, the development risks defence. It is similar to the ‘state of the art’ defence developed in negligence from the case of Roe v Minister of Health and allows a defence, for example, to a drug company who create a new drug which turns out to have harmful side effect, but at the time when it was launched, no-one in the drug industry would have been able to spot the risk. This can be examined in two ways: was the knowledge available and did the producer apply the knowledge?; or the producer might come within this defence if he made the product as safe as possible bearing in mind cost, utility, consumer expectations and the availability of safe alternatives. A producer would not be expected to make a product safe if to do so would be prohibitively expensive or would reduce the product's utility.
If we are seeking to protect consumers further from unsafe products the this area need tightening. This defence was lobbied hard for by big businesses, especially farmers and drug companies during the passing of both the Directive and the Act. It could be argued that its inclusion as a defence owes more to the governments wish to ensure British industry is not weakened by higher costs than by their desire to protect the consumer. It is interesting to note that several EU states do not include the defence in the legislation they put in place to enact the Directive.
There are also limitation periods, the right to bring a case is lost after 10 years from the date on which the defendant supplied the product, and proceedings must begin with three years of discovering the defect, but this can be overridden by the court in personal injury claims.
Part II of the Consumer Protection Act gives the Secretary of State the power to make safety regulations governing the making and supplying of goods. It also enables the Secretary of State to take quick action against the marketing of unsafe good via prohibition notices and a notice to warn. Part II also makes it an offence for a trader to supply consumer goods which fail to comply with a general safety requirement, it also entitles a consumer to bring an action for damages against any trader in respect of damages or loss suffered by the consumer because of an infringement by the trader of safety regulations. The DTI can make regulations under Act, and the General Product Safety Regulations 1994 is relevant to all supplies of consumer products.
The 1994 Regulations, by reg 5, disapply s 10 of the Act to the extent that it imposes a general safety requirement for products to be placed on the market by producers or sold or offered for sale or possessed by distributors.
Section 7 of the 1994 Regulations is the principal provision. It states that no product shall be placed on the market unless the product is a ‘safe product’, the definition being any ‘product which under normal or reasonably foreseeable conditions of use, including duration, does not present any risk, or only minimal risks compatible with the product's use, considered as acceptable and consistent with a high level of protection for the safety and health of persons.’
In determining whether or not a product is ‘safe’, the following factors are taken into account: the characteristics of the product, such as its composition, packaging and instructions for assembly and maintenance; the effect on other products, where it is reasonably foreseeable that the product will be used on other products; the presentation of the product, the labelling, any instructions for its use and disposal and any other indication or information provided by the producer; and the categories of consumers at serious risk when using the product, in particular children.
The prohibition on putting unsafe products on the market applies to producers not distributors. If the manufacturer is outside the EU and has no representative established in the EU, the importer of the product is treated as the producer, otherwise the manufacturer's representative is the producer.
Producers must provide consumers with relevant information so that they may assess the risks inherent in a product. Producers must also make sure they ‘take measures’ to enable them to assess the risks products present and to enable the producer to withdraw a product from the market to avoid the risks. These information requirements are only ‘within the limits’ of the producer's activity. It is not clear what this phrase means and it may prove useful wording for those seeking to avoid liability under this provision where they have not informed consumers of risks properly. This is clearly an area which need tightening up if consumers are to be better protected.
Distributors are required, by reg 9, to act with due care in order to ‘help’ ensure compliance with the producer's. A distributor must not supply products which he knows, or should have presumed on the basis of information in his possession and as a professional, are dangerous products.
The regulations contain a defence of due diligence where someone has taken all reasonable steps and exercised all due diligence to avoid committing an offence.
Local Authority trading standards departments have responsibility for day-to-day enforcement of the Regulations. Supplying an unsafe product can result in a fine of up to £5,000 for each offence, and/or a term of imprisonment of up to three months.
If we look at how these provisions to protect the consumer against unsafe products could be improved I feel that the enforcement is far too weak. The DTI whitepaper states that there are only 1,500 trading standards officers in the UK, and that recruitment is a problem. My own experience of working with Trading Standards via my advisor role at the Luton Citizens Advice Bureaux is that they are overstretched and often wait until they have a dossier of evidence before acting. Additionally, as conceded in the DTI whitepaper, the level of criminal sanctions, and the risk of civil action by consumers, do not deter determined rogues who continue to carry on unlawful conduct where the profits outweigh the occasional judicial setback and where they can live with an adverse effect on their reputation. This problem is compounded by the time it takes to enforce some of the existing legislative provisions. This enables the rogue trader to keep ahead of the authorities. It is also clear that consumer knowledge of the law and their rights to enforce is poor. The DTI whitepaper states that two thirds don’t understand their rights as a consumer, and over half don’t know where to go for help and advice.
In conclusion there are a range of remedies available for the users of defective products, coming from the common law of both contract and tort, and from statutory provisions, again both in contract and tort. In contract protection is offered by the Sale of Goods Act 1979 and the Contracts (Rights of Third Parties) Act 1999. Protection in the tort of negligence arose with the a Donoghue case where it was established that a duty was owed by manufacturers to the end consumer of their products. Statutory provisions to give consumers protection are founded in the ECC Directive of 1985, given effect by the Consumer Protection Act 1987. This Act along with the General Product Safety Regulations 1994 outlines who can sue, who can be sued, what products are covered, what defect and damage is covered, what must be proved and what defences are available. For each of the three remedies I have suggested improvements that could be made. These suggestions revolved around changing the privity rule, reversing the need to prove fault and imposing strict liability on manufacturers, taking decisions out of the courts hands, improving the design defects test, tightening the within limits requirements for product information, removing or tightening the development risk defence, strengthening the role of Trading Standards, imposing bigger penalties on rogue traders and educating the public of their rights in consumer transactions. Any of these suggestions I feel would improve current protection to consumers for unsafe goods.
Bibliography
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Dobson, Paul. Sale of Goods and Consumer Credit, 6th Edition, Sweet & Maxwell.
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Winfield and Jolowicz on Tort, 16th Edition, Sweet & Maxwell.
- Singleton, Susan. Safe Products. New Law Journal (1994) Vol 144, No 6673, p1634.
- Slapper, Gary. Dangerous Product Litigation. New Law Journal (1998) Vol 148, No 6830, p345.
- DTI Guide to the Consumer Protection Act 1987. Product Liability and Safety Provisions. http://www.dti.gov.uk/ccp/topics1/pdf1/act1987.pdf
- DTI Factsheet. Product liability, defective products, unsafe products. http://www.dti.gov.uk/ccp/topics1/facts/prodliability.htm
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DTI Factsheet. General product safety. http://www.dti.gov.uk/ccp/topics1/facts/prodsafety.htm
- DTI Whitepaper. Modern Markets: Confident Consumers. www.dti.gov.uk/consumer/whitepaper
Product Liability Directive 1999/34/EC extending coverage to food sold in its raw state this was transposed in England & Wales by the Consumer Protection Act 1987 (Product Liability) (Modification) Order 2000.
Modern Markets: Confident Consumers
