6th June 2018
What is product liability?
Product liability is the area of law concerned with responsibility for injuries caused by defective products. Those that can be held responsible include manufacturers, distributors, suppliers and retailers.
In England and Wales, an action is largely brought under either the Consumer Protection Act 1987 (CPA) or under the common law of negligence.
In order to claim under the CPA, a claimant must prove that:
The CPA imposes strict liability, which means people who are injured by defective products can bring a claim for compensation without having to prove the manufacturer was negligent. They only need to prove that the product was defective, and that the injury or damage was most likely caused by the product.
The CPA applies to products used at a place of work as well as those used by consumers. This means that sales of products between businesses come under the scope of the CPA, rather than just sales to consumers who might use the product at their workplace.
Any person who has been injured by a defective product can bring a claim, whether or not they actually purchased the product themselves. A claim cannot be brought under the CPA for pure economic loss and any damage to private property must exceed £275. There is no financial limit on liability.
An injured party has up to three years from the date of the damage or injury to start proceedings, although in some cases this can be extended to up to ten years from the date the defective product was put into circulation.
Who is liable?
Under the CPA, the ‘producer’ of the product is liable for any defects. Producers include:
More than one party may be liable under the CPA for the same damage. Since liability is joint and several, the injured party may sue all or any of the relevant parties.
Under the General Product Safety Regulations 2005, enforcement authorities, such as Trading Standards officers, can take action if they think unsafe products are being supplied. Certain products, such as toys, food and medicines, will be dealt with by specific authorities. If Trading Standards think that your products are unsafe, they can:
What is a ‘defective product’?
A product could be considered to be defective under the CPA if it is not as safe as could reasonably be expected. When the court is assessing the safety of a product, it will consider all the circumstances, including the marketing of the product, any instructions and warnings given with the product and what might reasonably be expected to be done with the product at the time that it was supplied. A product will not be considered to be defective solely because a safer version is later put on the market.
What can you do to guard against product safety issues?
It is important to proactively manage your responsibility regarding the safety of the products that you produce, manufacture, import or supply. For example:
Defences to a claim under the CPA
Thrings’ experienced Dispute Resolution team currently acts for a number of leading UK manufacturers defending product liability claims and can provide tailored advice on your specific situation in the event that a product liability claim is made against your business. There are a number of defences that might be available to you, depending on the circumstances of the claim, such as:
For further advice on growing, managing or protecting your business, please call or email Thrings.