When an individual suffers injury or death from the use of a product, a claim for damages will fall under the remit of a product liability claim. Under the Consumer Protection Act (the Act), manufacturers, distributors, suppliers and retailers are held responsible for any injuries caused as a result of their products or any of their component parts being defective. In the main, such claims are usually brought against the manufacturer of the product.
Under the common law of negligence, if a product is faulty and causes injury as a result of negligence, a claim for damages can be made but the claimant has to prove that the defect was caused by negligence. The Act introduced statutory liability for defective products and imposes strict liability on manufacturers of defective products for harm caused by those products. The claimant need not be the owner or purchaser of the product.
The impact of imposing strict liability for defective products removes the need for claimants to prove how a product became defective and that this was due to negligence. It is only necessary to prove that the product was defective and that the defect in the product caused the injury suffered.
The Act makes provision for faulty components or parts causing injury as well as the product itself and a product is defective for the purposes of the Act if its safety is ‘not such as persons generally are entitled to expect’.
In assessing the safety of the product, the court will take into account all the circumstances, specifically including:
- all aspects of the marketing of the product
- the use of any mark in relation to the product
- instructions and warnings
- what might reasonably be expected to be done with the product at the time the product was supplied. This point is significant. Just because a later version is ‘safer’ does not mean that the earlier version was defective.
Under the Act, the 'producer' of a product is liable for any defects. The producer is the manufacturer of the finished product or a component of the finished product, or any person responsible for an industrial or other process to which any essential characteristic of the product is attributable. Liability can also extend to the importer of a product. This means that a potential product liability claim may rest against a number of parties. Strict liability makes these claims more straightforward in most cases where there is a clear defect - although identifying the appropriate defendant(s) and their insurance indemnity can often be the difficult part.
Although liability under the Act is strict, the producer has a number of defences available if a claim is made. It is a defence to show:
- that the product is defective in order to comply with domestic or European law
- the party against whom the claim is being made did not supply the product (although this would simply mean that the claim must be directed elsewhere rather than cannot be pursued)
- that the product was not manufactured or supplied in the course of a business
- that the defect did not exist at the time the product was put into circulation.
If the party is being sued because it manufactured a component, it is also a defence if the defect is within the finished product and came about because of the way the finished product was designed or because of instructions given by the manufacturer of the finished product.
The Act also includes a 'development risks' defence which argues that the ‘scientific and technical knowledge’ at the time the product was manufactured was not such that the producer of a similar product might have been expected to discover the defect.
The basic limitation period for claims under the Act is three years from the date of damage or injury. However, since damage may not be immediately apparent, an alternative period of three years from the date when the producer knew - or could reasonably have known - of the claim is provided. There is, however, a ‘longstop’ period that a claim cannot be made more than ten years after the product was put into circulation.