A claim lands on your desk: it could be the fridge-freezer that catches fire, the baby equipment that traps fingers, personal healthcare products causing rashes, sofas that burn the skin, the list is endless.
Fifteen people have been injured and one has died in London alone as a result of fires caused by a defect in a well-known brand of fridge-freezer. As with many product related claims, these incidents raise a number of questions:
- What did the manufacturer know?
- When did it know?
- Was there a defect?
- If so, was it a manufacturing fault or due to a defective component supplied by a third party?
- If the product was not defective, or it is someone else’s fault, how do we prove that?
- Importantly, how does the manufacturer protect his brand name and good reputation?
What is the law?
In most consumer product cases, two EU Directives will be relevant:
- The General Product Safety Directive (GPSD) (2001/95/EC), enacted in the UK as the General Product Safety Regulations 2005, imposes criminal liability. The GPSD obliges manufacturers to place only safe products on the market. There is a wide definition of consumer products, which includes used and reconditioned products and professional products which “migrate” into the consumer market and are used by consumers. Article 5 of the GPSD also incorporates the “precautionary principle”, where manufacturers must assess the risks inherent in a product throughout its foreseeable period of use and take precautions against these risks, or give adequate warnings.
- The Product Liability Directive (PLD) (1985/374/EEC), enacted in the UK as the Consumer Protection Act 1987, imposes civil liability. The PLD requires products to be safe. A product will be defective when “it does not provide the safety which a person is entitled to expect, taking all the circumstances into account”.
Under both Directives “all the circumstances” include not only the product itself, but also instructions for use, labelling, warnings and packaging that may accompany the product.
Burden of proof
Liability under the Consumer Protection Act is strict. Further, where, for example, a consumer product such as a fridge or washing machine catches fire, it will be for the defendant manufacturer to demonstrate it was not defective - a court is likely to assume the equipment was faulty, without another very convincing explanation, or obvious misuse by the claimant.
Where complex products such as pharmaceuticals are concerned or unusual circumstances arise, the claimant must show “causation” i.e. that the damage or injury sustained was in fact caused by the product; for example the shampoo that causes a rash, the medical product that causes an unexpected side effect.
In reality, because the defendant manufacturer will usually have the technical or scientific knowledge and expertise, it is often down to the defendant to demonstrate that the product could not or was unlikely to have caused the damage, or was not defective. The court will have to weigh up two different versions of events and decide “on the balance of probabilities” (i.e. over 50 percent), which party’s version it prefers.
How do we persuade the court? Often this will turn on expert evidence. Where complex products are concerned, this may involve an array of experts in a variety of disciplines covering every aspect of the claim. It is essential that in addition to obtaining witness evidence at the earliest opportunity, relevant experts are considered, contacted and retained. In some areas there will be a limited number of individuals with the expertise who are also user-friendly, experienced and able to deal with the litigation process, including preparing expert reports and giving evidence in a persuasive and credible way.
Whilst the Civil Procedure Rules encourages the appointment of joint experts, in many cases this will not be appropriate or acceptable to the defendant or their insurers. It will be essential to obtain an order permitting each party to appoint their own experts and specifying the areas of expertise. In any event you may need an additional expert adviser “behind the scenes”, to assist the legal team on an independent basis, including on complex subject areas such as engineering, technology or statistics.
All likely areas of expertise and leading candidates should be identified as quickly as possible. Often experts can be retained at modest cost early in the life of the claim. This will ensure the defendant has the best choice of those available and they will also not be available to advise other parties. This is particularly important when causation is unclear, where a claimant has suffered significant personal injury or where a product incorporates components manufactured by other actual or potential defendants to the claim.
Ensuring that the claim is analysed at an early stage, with witness evidence to establish the facts and independent advice obtained to support the defendant’s position is essential, particularly where claims are threatened or made against a household name. Brand protection is big business. Whether the product is of low or high value, crisis planning and management are essential to protect the manufacturer’s good name and product integrity. In the event of problems arising, investigations must take place rapidly, and where appropriate products can be modified, they should be recalled or withdrawn to avoid potentially disproportionate damage to sales.
The European rapid alert system for dangerous consumer products (RAPEX) should be notified promptly where products may be sold or become available across the EU e.g. via internet purchases or tourism. Systems should also be in place to notify purchasers of defective products, via advertising campaigns, retailer notices and by providing well publicised help-line assistance to deal effectively with consumer queries.
In summary, the key to efficient and cost effective product claim management is:
- Witness evidence
- Establishing the factual matrix
- Expert witness identification and retention
- Crisis management plan
- Brand protection