Sources of law

Product liability statutes

Is there a statute that governs product liability litigation?

The Consumer Protection Act 1987 (CPA) implements the EU Product Liability Directive (85/374/EEC) into UK national law and establishes a strict liability (ie, no fault) regime to enable claimants to seek compensation from the producer of a defective product. To establish a claim under the CPA, the claimant is required to prove that the product was defective, that they suffered damage, and that there was a causal relationship between the defect and the damage.

Traditional theories of liability

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

In addition to strict liability claims under the CPA, claims can also be brought in the tort of negligence or in breach of contract.

Consumer legislation

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

The Consumer Rights Act 2015 (CRA) grants consumers statutory minimum statutory warranties enforceable against the seller of the product including:

  • goods must be of a satisfactory quality;
  • goods must be fit for a particular purpose if that purpose was made known to the trader (expressly or by implication) before the contract was concluded; and
  • goods must be as described.

 

The following remedies are available to consumers for claims under the CRA:

  • a short-term right to reject the goods and claim a full refund within 30 days of delivery where the goods do not meet the minimum statutory warranties;
  • a repair or replacement of the product for breaches of the minimum statutory warranties or for breaches of other contractual terms. The right to a repair or a replacement is subject to them not being disproportionate compared to the other of those two remedies or impossible for the seller (eg, if it would be unreasonably expensive to repair a product, a seller can replace it instead);
  • a final right to reject (ie, full refund) or price reduction (where the consumer wishes to retain the product) if repairing or replacing the product was impossible, or the seller had one attempt at a repair or replacement that was ineffective (eg, the repair did not work or the replacement was defective). After six months, a refund may be subject to a deduction for use (this may apply from delivery for certain products such as motor vehicles).
Criminal law

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

In England and Wales, criminal sanctions may be imposed for the sale or distribution of defective consumer products under the General Product Safety Regulations 2005 (GPSR), derived from the EU General Product Safety Directive (2001/95/EC). The penalties for the sale or distribution of an unsafe product include fines or imprisonment, or both.

In 2019, a retail chain Mamas and Papas Ltd (M&P Ltd) was fined £20,000 and ordered to pay £50,000 in costs, and the director of Jeenay (UK) Ltd (a baby and child car seat distributor) was sentenced to 12 weeks in prison for supplying almost 150,000 unsafe child car seats under the GPSR. Unusually, the judge also made confiscation orders under Part 2 of the Proceeds of Crime Act 2002, to account for the profits made from the supply of the unsafe products. Mamas & Papas were subject to an order for £275,000, and Jeenay for £236,850.

Under the GPSR, criminal sanctions can also be imposed for a number of other breaches of product safety rules, including failing to notify the authorities of a product safety issue (among others).

Criminal liability may also be imposed under certain sector-specific product safety rules covering products such as toys, low-voltage equipment (plus many more) (either under the applicable legislation or the CPA). Penalties can include fines or imprisonment, or both.

Novel theories

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

A 2019 decision Wilson v Beko Plc [2019] EWHC 3362 (QB) looked at whether it was possible for consumers to circumvent the limitations of Part I of the CPA by bringing a claim under Part V of the CPA for breach of statutory duty of various safety regulations made under Part II. In that case, the court held that Part I of the CPA provides for an exhaustive system of liability within its scope, precluding any other form of strict liability claim and that claims for a breach of statutory duty of the safety regulations are not open to consumers. Otherwise, the 10-year longstop and defences in the CPA could be bypassed. However, this does not apply to certain claims brought by non-consumers that are not within scope of Part I, such as damage to non-private property.

Product defect

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

Under section 3 of the CPA, a product is defective if it does not provide the level of safety that a person is entitled to expect, taking into account all relevant circumstances, including:

  • the manner in which, and the purpose for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
  • what might reasonably be expected to be done with or in relation to the product; and
  • the time when the product was supplied (a product is not unsafe just because a safer product was subsequently developed).

 

Defect is an objective standard in relation to a consumer’s legal entitlement, rather than the actual expectations of the consumer in question, or of a notional group of consumers. There are no restrictions on the relevant circumstances that can be taken into account, which can include compliance with regulatory requirements and the existence of a learned intermediary among other things (see Wilkes v Depuy International Ltd [2016] EWHC 3096 (QB) and Colin Gee & ors v DePuy International Ltd [2018] EWHC 1208 (QB)).

To establish a claim in negligence, the claimant must prove the following elements:

  • the defendant owed them a duty of care;
  • the defendant breached that duty;
  • the breach caused the damage; and
  • the damage was reasonably foreseeable.

 

A breach of contract claim may be of an express term or an implied term of the contract. The CRA implies various terms into a contract for the sale of goods between a business and a consumer including that:

  • goods must be of a satisfactory quality;
  • goods must be fit for a particular purpose if that purpose was made known to the trader (expressly or by implication) before the contract was concluded; and
  • goods must be as described.
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?

Generally, the claimant bears the burden of proof. In civil matters, the standard is on the balance of probabilities, which is a lower standard than criminal law matters, where the case must be made out beyond all reasonable doubt.

Hufford v Samsung Electronics (UK) Limited [2014] EWHC 2956 (TCC) illustrates the threshold that claimants must reach to show that a product was defective under the CPA. In that case, the claimant could show that the fire began around the product in question; however, they could not prove that the product itself was the catalyst for the fire. This was deemed to be insufficient evidence to discharge the claimant’s burden to show that the product was defective.

In Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt Die Gesundheitskasse (C-503/13) and Betriebskrankenkasse RWE (Case C-504/13), the Court of Justice of the European Union re-examined the general burden of proof. It held that for certain products (those in question were pacemakers and cardioverter defibrillators), the level of safety that a person is entitled to expect is particularly high, due to the inherent function of the product, the vulnerability of the user or the abnormally high potential for damage. The CJEU held that for such products, if it is found that products belonging to the same group or forming part of the same production series have a potential defect, it may exceptionally be possible to classify other products in the same group or series as defective without the burden of proof of establishing that the product in question has a defect.

The English courts have taken a restrictive approach to the application of Boston Scientific. In Colin Gee & ors v DePuy International Ltd [2018] EWHC 1208 (QB), the claimants argued that a hip prosthesis was defective because of its 'inherent potential for damage', relying on the decision in Boston Scientific. The court rejected this argument, noting that it was based on a misinterpretation of the Boston Scientific decision, which was 'not a case about the natural risks inherent in the use of the product under normal conditions for the purposes intended'. Rather, the potential lack of safety that gave rise to the liability of the producer in Boston Scientific arose from 'the abnormal potential for damage which those products might cause to the person concerned'.

In respect of claims for breach of the statutory warranty under the CRA, there is a presumption to make it easier for consumers to bring claims – that any lack of conformity that becomes apparent within six months of the date of delivery of the goods is deemed to have existed at the time of delivery of the goods. The burden of proof rests on the seller to prove the contrary.

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?

Under the CPA, liability can be imposed on:

  • the person who manufactured the product, won or abstracted it or carried out the process for attributing the essential characteristics of the product;
  • an ‘own-brander’ (the person who holds themselves out as the producer by placing their name or trademark on the product); and
  • an importer.

 

A supplier or distributor can also be held liable if they have failed to identify an entity within the above categories or disclose who supplied them with the product within a reasonable time when requested by the claimant.

Prior to Brexit, it was the importer into the EEA who could be held liable under the CPA. The CPA has since been amended so that from the end of the Implementation Period on 31 December 2020, liability attaches to the importer who imported the product into the UK rather than the EEA. This change means that entities who were previously UK distributors of products imported by another entity into the EEA may now be considered importers into the UK.

The above-mentioned entities can be held jointly and severally liable and the claimant can choose to sue one or all of them.

A party is prohibited from limiting or excluding liability for damages from a defective product under the CPA through a contract term, notice or by any other provision.

If a claim is brought under the tort of negligence, liability is imposed on entities where a duty of care can be established that can include producers and manufacturers, but in certain circumstances can extend to cover retailers, wholesalers, those who assemble or repair products and those who hire out products.

If a claim is brought for breach of contract, liability is typically imposed on the contracting party that supplied the product to the end-user (ie, the seller).

In relation to claims in contract or tort, it may be possible to exclude liability for damage to property, but it is not possible to exclude liability for personal injury.

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?

For claims under the CPA, the claimant is required to prove the damage, the defect and the causal relationship between the two. The claimant does not need to establish the precise cause of the defect, but in practice, they may do so to establish that there is a defect.

For a claim in negligence, the claimant must prove that the breach caused the damage on the balance of probabilities. There are special rules that may be applied in some cases, such as the principle of res ipsa loquitur, where the mere occurrence of some accidents is deemed to be sufficient to imply negligence. This shifts the burden of proof to the defendant to disprove the claim. There is also specific case law in relation to proving negligence for certain diseases where the exact cause cannot necessarily be determined (such as mesothelioma).

For a claim in contract, there must be a causal connection between the defendant’s breach of contract and the claimant’s loss proven on 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?

The UK product safety framework imposes a number of post-sale duties.

The GPSR lays down horizontal requirements generally applying to consumer products, with the exception of several product categories that are separately regulated (such as medical devices, pharmaceuticals and food). In addition, there are sector-specific pieces of legislation setting down specific safety requirements for certain products, such as low-voltage electrical equipment, radio equipment, toys and cosmetics (plus many more). The GPSR applies to products in scope in so far as there are no specific provisions with the same objective, and to risks not covered by the sector-specific measures. In addition, there are also a number of other horizontal measures that cut across the product categories such as legislation concerning chemicals and other hazardous substances.

The GPSR requires producers to adopt measures commensurate with the characteristics of the products they supply to enable them to be informed of the risks their products may pose. This includes sample testing, investigating any complaints and keeping distributors informed of these monitoring exercises. The GPSR requires distributors, within the limits of their activities, to assist with monitoring the safety of products by passing on information on product risks. There are also monitoring obligations for some products under the applicable sector-specific regulations.

Producers of consumer products have obligations to conduct corrective actions to deal with products that pose risks that could make them unsafe under the GPSR. As a last resort, this may mean conducting a recall from consumers. In less serious cases, other corrective measures may be sufficient, such as withdrawal from the supply chain, carrying out in-market repairs or providing warnings to consumers. The measures taken to deal with a product safety issue should be commensurate with the level of risk posed. There are also obligations to take corrective actions for certain products where they are not in conformity or pose a risk under the applicable sector-specific regulations.

The GPSR requires producers and distributors to report all dangerous consumer products. There are also obligations to report for some products under the applicable sector-specific regulations.

Failure to comply with the obligations can be an offence under the GPSR or sector-specific rules, with penalties including fines or imprisonment, or both.