Product Liability

The trend towards strict product liability is becoming increasingly evident. Discuss. - Justin Santiago

The duty of manufacturers has been extended and refined since Donoghue and Stevenson and has taken on elements of strict liability under the Consumer Protection Act 1987 because of the difficulties in proving negligence namely causation. Although fault need not be proved it is important to remember that the defendant’s actions caused their loss, that the loss is recoverable and that there are no defences which obstruct their claim or limit their damages. It should also be noted that strict liability does not mean automatic liability but simply that the claimant does not have to prove that the defendant has been at fault.

As a general rule anyone who suffers personal injury or property damage that is caused by a defective product may recover to the full extent of his loss. S5(1) allows for recovery for personal injury. Property damage is claimable under S5(3) and 5(4).

Under provisions of this law, a producer would be found liable if a consumer is injured by a defect in the product even though it was not negligent and exercised all proper care necessary protect the producer or even if the risk could not have been recognised at the time of supply : Abouzaid v. Mothercare (UK) Ltd.
The case depended on whether the product had a defect as defined in Section 3 of the act. Section 3 provides that a product has a defect if the safety of the product is not such as persons generally are entitled to expect at the time the product was purchased.

The Court of Appeal considered that a defect, within the Consumer Protection Act, depended on a consumer's "expectations" of safety. The court considered whether public expectations had changed between 1990 and 1999. It concluded that there had been no change. Therefore the product was defective in 1990. The court accepted that the public was entitled to expect a certain level of safety in a product even where a producer could not reasonably have anticipated a particular risk and guarded against it. In A v National Blood Authority – as long as the risk of infection was known it was irrelevant that all reasonable steps to detect such risks.

Consumer expectations of safety are the key to defining a defect under the Consumer Protection Act. However the fact these expectations may change over time is an unresolved problem under the act. Also, it is not the consumers' actual expectations of safety that is important under the act but what consumers are entitled to expect. Grey areas will still cause problems until more cases have been through the courts. For example, in Richardson v. LRC Products it was held by the High Court last year that, in the case of a condom which ruptured in use, the product was not defective because the public was not entitled to expect that any method of contraception intended to defeat nature would be 100% effective.

The case also demonstrated the difficulties with using the development risks defence. The argument that an undiscoverable risk at the time the product was in circulation could be used was rejected by the courts citing that such a defence would undermine the effect of the strict liability provisions in the act. The Court of Appeal considered that whether a producer might be expected to have discovered the defect had nothing to do with the state of scientific or technical knowledge at the time. It would have been a simple matter to discover the defect by performing a practical test. No advance in scientific or technical knowledge between 1990 and 1999would have been required to perform such a test. The only reason that such a test had not been carried out was that the manufacturers had presumably not thought of doing one. This risk was the same in 1990 as it was in 1999 and therefore, if it constituted a defect in 1999, it constituted a defect in 1990.

There have been some criticisms levelled at the CPA because it is no easier to prove that a product is defective than to prove that it was negligently manufactured.

There are also criticims that express warnings on the packaging would be absolved from liability following Worsely v Tambrands Ltd where a claim would fail if :-

1. There was a clear and legible warning on the outside of the box
directing the user to the leaflet
2. The warnign was legible, literate and unambiguous and contained all the material necessary to convey both the warning signs and the action required if any of them were present