2014 saw a number of interesting case law developments in the product liability sphere. This update explains how recent cases have helped clarify:

  • what constitutes a defective product;
  • the liability of end suppliers for manufacturer brochures;
  • jurisdiction and applicable law in product liability claims; and
  • issues of causation.

What makes a product defective?

Buckley v Henkel Ltd, County Court (Liverpool) November 25 2013

Facts

Ms Buckley used a hair dye manufactured by Henkel. The hair dye contained PTD, a vital ingredient in permanent hair dyes, but one that is known to cause allergic reactions. Before using the dye, Ms Buckley said she had read the product instructions and carried out a “patch test” to check whether it would cause her to react. Ms Buckley said that her patch test was negative, but when she used the dye, she suffered a severe allergic reaction.

Ms Buckley made a claim against Henkel for damages for personal injury, arguing that the product was defective under the Consumer Protection Act 1987 (the "CPA"). She said the product's safety was not "such as persons generally are entitled to expect" (the definition of a defect in a product under s3(1) of the CPA), because:

  1. the presence of PTD within the product made it unsafe; and
  2. the patch test and instructions were defective in that they did not enable her to reliably ascertain whether she was allergic to the dye.

Decision

On the question of whether the presence of PTD in itself made the product defective, Deputy District Judge Ranson accepted that there were notable risks associated with PTD, but was persuaded by the argument that its use was permitted under EU law. He referred, by analogy, to "other commonly available products which carry with them risks", and said that "persons generally would not be entitled to expect that certain products would be completely free from risk (particularly if those risks are highlighted)". In this case, he thought the number of explicit warnings and consequences highlighted in the instructions, including one that warned the consumer of the danger of a “severe” allergic reaction (“hair colourants can cause allergic reactions which in rare instances can be severe") sufficiently alerted the consumer to the risks associated with PTD.

On the question of whether the patch test was defective, the instructions were once again important, because they stated that the risk of an allergic reaction would be reduced but - crucially - not eliminated, following a successful test (“the absence of a reaction to this test is no guarantee that an allergic reaction may not occur as a result of a future hair colouring process"). Mr Ranson was unwilling to find that "a procedure introduced into a product to improve its safety should then make the product itself defective because it is not 100% effective when it is does not purport to be".

The claim was therefore rejected.

Comment

This case should offer some comfort to manufacturers of "commonly available products which carry with them risks", particularly where the particular product or ingredient is explicitly permitted by legislation. However, it also serves as a reminder of the importance of including clear warnings alongside products known to carry risk. In this case, the statements that the product could cause an allergic reaction, and that the patch test was not a guarantee of safety, were crucial to Henkel successfully defending the claim.