Sources of law

Product liability statutes

Is there a statute that governs product liability litigation?

The relevant statute in the UK is the CPA which imposes strict liability (sometimes referred to as ‘no fault liability’) for defective products that have caused damage to private property or injury. This ‘strict liability’ regime means that persons can bring an action without having to prove negligence. It is merely necessary to prove that the product itself was defective, and that any injury or damage was most likely caused by the product. Claims brought pursuant to the CPA can also be negligence and contract.

Traditional theories of liability

What other theories of liability are available to product liability claimants?

Negligence

Negligence is a tort-based avenue by which claimants can bring product liability claims. Manufacturers or other actors in the supply chain can be liable in common law negligence in respect of a defective product. Liability will attach to a defendant who owes a duty of care and subsequently breaches that duty of care, which results in reasonably foreseeable physical loss or damage to the claimant or claimant’s property. A claimant must prove fault on the part of the defendant.

 

Contract

Consumers that are party to a contract with a product supplier can bring a breach of contract claim, if the product supplied is defective or fails to conform to the contract of sale. The claimant would need to show that the supplier, under a contract for the sale of a product, breached an express or implied term of the contract, and that the breach led to loss or damage.

Consumer legislation

Is there a consumer protection statute that provides remedies, imposes duties or otherwise affects product liability litigants?

The CPA implemented the EU Product Liability Directive 85/374/ECC into UK law. Part I deals with product liability and imposes a strict liability on manufacturers, importers and retailers for any damage or injury caused by a defective product. Part 2 focuses on consumer safety and Part 3 focuses on misleading price indications.

Criminal law

Can criminal sanctions be imposed for the sale or distribution of defective products?

Criminal sanctions may be imposed for breach of the General Product Safety Regulations 2005.

 

Producers cannot place a product on the market unless it is a safe product. Any breach of this may amount to a criminal offence under section 20(1) of the General Product Safety Regulations 2005. Any person guilty of such breach may face a jail term (not exceeding 12 months) or a fine which will not exceed £20,000 on conviction on indictment, or both.

 

Distributors must help to ensure compliance with the relevant safety requirements and cannot offer to supply or supply a product which they know – or should have presumed – is dangerous. Any breach of this may amount to a criminal offence under section 20(2) of the General Product Safety Regulations 2005. Any person guilty of such breach may face a jail term not exceeding three months or a fine not exceeding £5,000 for offences committed before 13 March 2015 and without any limit of amount for any offence after, or both.

 

Other sanctions apply for other breaches of the General Product Safety Regulations 2005.

Novel theories

Are any novel theories available or emerging for product liability claimants?

Hastings v Finsbury Orthopaedics Limited and Stryker UK Limited [2022] UKSC 19 (Hastings) concerning an allegedly defective metal on metal hip replacement, the Supreme Court held that the appeal was ‘no more than an attempt to appeal against the … findings of fact’. The Supreme Court declined the appellant’s invitation to overturn the factual findings made by the judge at first instance, as they were findings the lower court had been entitled to make on the evidence.

 

The appellant had suggested that the Supreme Court examine such findings through a different prism that intro­duced principles such as a benevolent approach to the application of the CPA. He also argued that the evidence presented to the lower court raised a presumption of defect which the manufacturers had been incapable of rebutting and that the lower court should not have found against him. The Supreme Court rejected his argument, holding that:

  • expressions of concern in the surgical community regarding metal on metal hip prostheses generally did not assist to establish that the product in question was defective given that revision rates for the metal on metal class of hip prostheses varied from product to product;
  • the fact that the product in question was withdrawn from the market for commercial considerations did not assist a case on defect; and
  • product safety alerts and notices issued by a regulator or a manufacturer cannot of themselves be determinative of defect, where, as was the case in Hastings, it was found that the statistics on which the alert or notices were based were unreliable.

 

This recent decision confirms the approach to defect under the CPA.

Product defect

What breaches of duties or other theories can be used to establish product defect?

Based on section 3 of the CPA, there is a defect if: ‘if the safety of the product is not such as persons generally are entitled to expect.’ Typically, the following circumstances will be taken into account by the court when assessing the safety of the product, including:

  • product marketing;
  • date of supply;
  • any safety mark;
  • warnings;
  • what might reasonably be expected to be done with the product; and
  • the time when the product was supplied by its producer to another.

 

The Court gave guidance on the application of this test in the case of Colin Gee & Others v DePuy International Limited [2018] EWHC 1208 (QB):

  • what persons generally are entitled to expect is an objective test, that is, it is not about what the claimant actually expected;
  • hindsight plays no part in the ‘entitled expectation’ of safety; entitled expectation is assessed as at the time of supply of the product in question. However, when assessing whether a product met the ‘entitled expectation’, all relevant information to date can be considered; and
  • the court can take into account all of the circumstances it considers factually and legally relevant to the assessment of safety, on a case-by-case basis.
Defect standard and burden of proof

By what standards may a product be deemed defective and who bears the burden of proof? May that burden be shifted to the opposing party? What is the standard of proof?

The burden of proof rests with the claimant.

 

The standard of proof required is to prove the case against the defendant on the balance of probabilities. This is a civil standard. Under the CPA, the claimant must prove the existence of a defect and that the defect caused damage.

Possible respondents

Who may be found liable for injuries and damages caused by defective products? Is it possible for respondents to limit or exclude their liability?

The claimant can pursue the manufacturer of the product, the importer, the distributor, the supplier or seller and anyone else who is an ‘actor’ in the supply chain.

 

CPA

The following entities can be jointly and severally liable under section 2 of the CPA:

  • the producer (ie, the manufacturer) of the product;
  • an own-brander (ie, someone who holds themselves out as the producer of the product by placing his or her name or trade mark on it); and
  • an importer to the UK. Prior to Brexit, the relevant entity was an importer into the EU.

 

A supplier can also be liable where he or she fails to identify an entity in one of the above categories to a claimant on request within a reasonable period of time.

 

Negligence

The tort of negligence not only imposes liability on producers and manufacturers, but in certain circumstances can stretch liability to cover wholesalers, retailers, assemblers or repairers and designers of products and those who hire the products.

 

Contract

The liable party would typically be the party who supplied the products or goods to the end user under the contract.

Causation

What is the standard by which causation between defect and injury or damages must be established? Who bears the burden and may it be shifted to the opposing party?

A causal link must be demonstrated between the product defect and the damage or injury sustained. The common English law tests for causation apply to product liability cases. The claimant bears the burden of proof and the standard of proof is the balance of probabilities.

Post-sale duties

What post-sale duties may be imposed on potentially responsible parties and how might liability be imposed upon their breach?

Regulators across all industries encourage early notification of a potential safety issue. This is the case even where not all information has been obtained. Depending on the industry concerned, the timeframe within which a company must notify regulators is very short: this can be a matter of days if the risk is serious and failure to notify within the requisite timescales is an offence.

 

A post-sale duty to warn may arise when a danger inherent in the foreseeable uses of the product that was unknown and unknowable at the time of sale becomes known at a later time; a danger resulting from an unforeseeable use of the product becomes known because the use is discovered after the product is sold; or a risk reduction measure is developed because of a post-sale improvement in the state of the art.