Product Liability and Defective Products

Product liability is where the supplier and or manufacturer of a product is held to be liable when a defect in that product has caused injury or loss to another person.

There is a common law tort of product liability imposed on suppliers and manufacturers of goods. If the duty is breached, they could face a negligence claim for compensation. In a negligence claim, the following elements need to be established:

• Duty of care towards the claimant
• Breach of that duty
• A causal link between the breach and the harm or loss
• Actual personal injury or loss, including damage to property

Historically, it was often difficult to establish that the product was in fact defective and establishing that the duty of care had been breached. However, under the Consumer Protection Act 1987 a strict liability tort for product liability is imposed, and covers personal injury and damage to property caused by a faulty product.

If a claim does not succeed under this Act, a common law negligence claim could still succeed.

The Act provides for strict liability in respect of defective products. This means that if there was a defect in a particular product then the ‘producer’ of the product would be automatically liable for any harm caused by that defect, whether or not they were at fault. It applies whether the defective product was supplied to consumers, or to business organisations.

A ‘producer’ would usually be the manufacturer or the product, including any business involved in the manufacturing process. This means more than one party could be held liable.

A product, for these purposes, has a wide-ranging meaning and can include electricity, and raw materials of which a building is comprised – in fact, anything that involves substance. In the digital age in which we live and work today, some forms of digital content may also come within the meaning of ‘product’ if it causes damage.

Under section 2(1) of the 1987 Act, harm is established when there has been “any damage”. This means any person who suffers damage as a result of the defective product is entitled to claim compensation, whether or not they bought the product. Damage can be personal injury (or even death), and damage to property.

However, there is a limited range of damage that is excluded for the purposes of the Act, and for which compensation will not be available:

• Loss or damage to the product itself
• Damage to business property not ordinarily intended for private use
• Property damage valued under £275

Although strict liability is imposed, a producer has a number of defences available, including that the product was defective, but it had to be to comply with EU regulations; or the defect did not exist when it was put into circulation. It is also a defence that the defendant did not supply the product, for instance, it was stolen.

A product is defective under the 1987 Act if the safety of the product is not such that persons are generally entitled to expect.In determining this, the following factors are taken into consideration:

• The manner and purposes for which the product has been marketed, for instance, the packaging, the use of a mark, any warnings on the product, and instructions will be taken into account
• What might reasonably be expected to be done with or in relation to the product
• The time when the product was supplied to another by its producer

Manufacturers can, therefore, protect themselves by placing appropriate warnings on their products and including adequate instructions when necessary.

The time when the product was produced can be important because individuals should reasonably expect the safety of certain products to have deteriorated after a period of time. Similarly, if a newer version of a product has improved safety features, this does not necessarily mean the older model will be assumed to fall below the required safety standards.

Under the Act, the damage must have been caused wholly or partly by the defect. The defect therefore need not be the sole cause of the harm, but it must have been some of the cause or have contributed to it.

Yes, a claim should generally be brought within three years from the date of injury or damage; or three years from the date the producer knew (or could reasonably have known) about the claim. This is subject to a long-stop date of 10 years, after which a claim cannot be brought.