As a consumer, you are entitled to assume that products you have purchased are safe to use. This is not always the case, and on occasions, faulty products have been known to cause serious injury to consumers. If you have been harmed by a defective product then you may be able to claim compensation from the person who made/sold it under laws on product liability.
The rules for product liability are three fold. They originate from statutory law, contract law and tort law. No matter how you make a claim there are three points that need to be proven to be successful. These are
- The product is defective
- The defective product caused some harm or loss to the claimant
- The defendant is legally responsible for the defective product.
If your claim is based on the Consumer Protection Act 1987 that is all you need to establish that the defendant is liable for the defective product.
If it is under contract law, you as the Claimant will also need to be able to show that the defect in the product amounts to a breach of contractual obligation that is owed from the defendant to the claimant.
For a tort claim to be successful you would need to show that there was negligence on the part of the defendant and that they had failed to exercise reasonable care with regard to the products. The defendant will have some counters to a tort claim, such as that the defect was unforeseeable.
Types of product liability claim
There are broadly four types of product liability claim. These are:
- Manufacturing – A claim can be brought under this category if the product has been damaged or contaminated during the manufacturing process.
- Design – A claim can be brought under this category if the product has an inherent design fault which has led to injury.
- Warnings – A claim can be brought under this category if the manufacturer has failed to ensure that sufficient warnings are exhibited on the product packaging.
- Failure to recall/announce warnings – A claim can be brought under this category if a manufacturer has failed to recall a faulty product even though they knew about it. If this fault subsequently injures a party, the manufacturer can be held liable.
Claims under Statute
If you are to make a claim under statute the main piece of legislation to bear in mind is that of the Consumer Protection Act 1987. If you are claiming under this piece of legislation due to a defective product the supplier may be liable in strict liability. This means you don’t need to show negligence or breach of contract which are required in the other claims that could be made.
What is defective?
Under s.3 Consumer Protection Act 1987 a defect is described as:
(1) ..there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
When a court is deciding whether the product is defective for the sake of the act, the court is entitled to take various circumstances into account. This includes the way it was marketed, instructions or warnings that were with it and the level of technology that was available when it was produced.
For a claim under the act you can not recover lost profit and nor can you claim the cost of a replacement product. You are however able to claim for personal injury, death or damages to private property.
The defendant does have access to certain defences. Some are similar to those in tort such as contributory negligence. This is when there is negligence by the Claimant and because of how they acted this can reduce or in some cases completely remove the defendant’s liability for the product and the injury caused.
If the defendant can prove that the Claimant voluntarily accepted the risk of the defect he may also be able to avoid liability.
Another defence which the defendant might have access is in relation to the state of technology at the time of the product was first supplied. The burden is on the defendant to show that the state of scientific/technological knowledge when he first supplied the product is such that the producer would not be expected to have discovered or known about the defect in the product.
The burden of proof in technological/scientific knowledge
As mentioned above the burden of proof in a defence to a statutory claim for product liability lies with the defendant. However if the claim is in tort law then the burden of proof is switched. It is now up to the Claimant to be able to show that scientific and technical levels were such that the defendant could have been made aware of any defects and that he was negligent in failing to use them.
It should be noted that a defendant cannot exclude liability for claims made under the Act for product liability. For example if the defendant includes a clause in his contract which is meant to limit liability then it will normally be found to be ineffective.
Claims under Contract and Tort
The above statute will apply to the vast majority of product liability claims there are however a few instances when a claim may not fall within the Act. However they may be actionable under contract law or tort law.
As mentioned above you cannot reclaim the costs of replacing a defective product under the Act. However under Contract law there may be a claim available to you as the defendant will most likely have a contractual obligation to supply the product free of any defects. If a defect is then found they may be liable for you to pay for any replacement that has to be sought. On top of that there may be other clauses within the contract which could be actionable if a problem is discovered.
Under Tort law there may well be a claim for negligence by the defendant. As long as there is a duty of care between the defendant and the claimant, normally if the product is bought either directly from them or by an official retailer that will most likely exist, then there is a potential claim if there is a breach by the producer. The breach does have to be reasonable and it does have to be foreseeable but as long as that’s the case there may be an actionable claim there.
Under the Consumer Protection Act 1987 the limitation period for a product liability claim is set at 3 years from when harm was caused. There is however a 10 year stop date from when the defendant last supplied the product to someone. So if for example you bought a product in 2000 and the defendant didn’t sell any more after that then you have until 2010 to be able to make a claim before the time limit ran out.
For expert advice on the application of the law relating to product liability, please contact our team on 0800 014 8727. We will be able to advise you on the next steps that need to be taken and give you some indication on whether our solicitors will be able to assist you on a no win no fee basis. Alternatively fill out the form to the right and we will call you back at a time that suits you.