Most people are familiar with the notion that when a person is harmed by a defective product, he/she may be able to claim compensation from the person who made or sold it. In such circumstances the rules of product liability law apply.
Product liability rules come from:
statutory law (i.e., the Consumer Protection Act 1987);
contract law; and
tort law.
However, regardless of whether you claim in contract, tort, or under statute, you must show that (i) a product is defective, (ii) the defective product caused some harm or loss to the claimant, and (iii) the defendant is legally responsible for the defective product.
For a claim based on the Consumer Protection Act 1987 that will be sufficient to establish that the defendant is liable for the defective product.
For a claim based on contract law, the claimant will also need to show that the defect in the product amounts to a breach of a contractual obligation owed by the defendant to the claimant (e.g., the implied warranty of merchantability).
For a claim based on tort law, the claimant will need to show that the defendant was negligent and in breach of its duty to take reasonable care in relation to the product. The claimant will also need to overcome other assertions by the defendant, for example that the defect in question was unforeseeable.
(1) Claims Under the Consumer Protection Act 1987
If you've been harmed by a defective product, the Consumer Protection Act 1987 may allow you to sue the supplier in strict liability . This means that you won't need to show negligence or breach of contract. You just need to prove that the product was defective and that defect caused you harm.
Under the Act, a product is defective if "the safety of the product is not such as persons are generally entitled to expect." In determining whether a product is defective under the Act, a court is entitled to take various circumstances into account, including the way that the product was marketed, any instructions or warnings that were given with it and the state of the technology available to the producer when it made the product.
The claimant can recover damages compensation under the Act for death, personal injury, and damages to private property (provided the loss or damage is £250 or more), but not for lost profits. Moreover, the claimant cannot recover for any damage to the defective product itself or for the cost of replacing it.
Under the Act, the defendant has certain defences to a claim. Some are the same defences that would apply in a tort action. For example, contributory negligence by the claimant can reduce or eliminate the defendant's liability for the product. In addition, the defendant can avoid liability if the claimant voluntarily assumed the risk of the defect in the product.
The defendant can also reduce or eliminate his liability if he can show that when he first supplied the product the state of scientific and technical knowledge was not such that a producer of the same type of product would be expected to have discovered the defect in his product. The burden of proving this defence is, however, on the defendant, whereas in a claim based on tort law the claimant would have the burden of showing that scientific and technical advances were available to the defendant and the defendant was negligent in failing to make use of them.
A claimant should be aware that the defendant cannot limit his liability under the Act, whether by notice, contractual provision or otherwise. So a clause in a contract (or standard form of contract included with the product) purporting to limit liability under the Act will be ineffective in most circumstances.
(2) Contract and tort claims
Although the Consumer Protection Act 1987 will apply to many product liability claims, there are some instances where a claim will not fall within the scope of the Act but may still be actionable as a matter of contract or tort law.
For example, under the Act a claimant cannot recover the cost of replacing a defective product. But if the claimant is bringing an action based on a contract to supply the product in question, the claimant may well be able to recover the cost of replacing the defective product if the delivery of the defective product was, in effect, a breach by the defendant of a contractual obligation to deliver a product free of defects.
(3) Limitation Period for Bringing a Claim
The question of the limitation period for bringing a claim can be complex, and to an extent will depend on the legal basis for the claim (contract, tort, or Consumer Protection Act 1987).
Under the Consumer Protection Act 1987, the limitation period is three years from the date the product caused harm or, if the harm was not discoverable when it happened, three years from the date the claimant discovered or should have discovered that the harm was attributable to the defective product. That formulation is, however, subject to an over-riding long stop date of ten years from the date the defendant last supplied the product to someone.
Getting Help With a Product Liability Claim
An experienced product liability solicitor can assist you in evaluating a potential claim and in bringing the claim if it is viable.