Product liability and the Consumer Protection Act 1987

The Consumer Protection Act 1987 ( hereafter CPA ) was enacted in order to implement EC Directive 85/374/EEC on merchandise liability. The implicit in principle of the Directive was to enforce rigorous liability on the manufacturers of faulty merchandises as a response to widespread unfavorable judgment that had been levied on the old jurisprudence on merchandise liability, which was governed by the criterions of carelessness. The purpose of the Directive was to promote manufacturers to adhere to higher criterions of research, design and production in order to protect consumers, whilst promoting invention by allowing manufacturers to avail themselves of the possible abrasiveness of rigorous liability by supplying for a development hazard defense mechanism whereby manufacturers will non be apt if the current province of scientific and proficient cognition at the clip the merchandise was put into circulation was such as to render moderately impossible the find of a defect in the merchandise. [ 1 ] However, judicial reading of the statutory commissariats has non needfully imposed rigorous liability within the significance of the Directive.

Has the CPA been interpreted as a fault-based instead than strict-liability government?

The diction of the CPA purposefully avoids the linguistic communication of carelessness and the nonsubjective trial for strict-liability demands that the harm was caused by a defect in the merchandise and that a merchandise will be faulty if it falls below the degree of safety that a individual is entitled to anticipate. [ 2 ] However, whilst the legislative act appears to avoid an extended probe of negligence-derived constructs, it has been advanced that any effort to enforce liability under the Act necessitates declaration of “the really kind of inquiries which complicate and confine negligent liability such as the function of warnings, hazard appraisal and rating of province of the art considerations.” [ 3 ] Several legal observers have avered that the lone manner in which the new defect-based government is wider than carelessness is where the hazards associated with the merchandise were unascertainable at the clip of circulation. [ 4 ] However, a suspect manufacturer faced with this state of affairs could avail himself of liability by using the development hazard defense mechanism. It has been argued that this defense mechanism precludes the classification of the CPA as a government of full rigorous liability and that the legislative act is more appropriately described as a government of strict-liability topic to makings in favor of manufacturers ; this seems to travel against the really intent of the Directive. [ 5 ] The inquiry as to whether judicial reading of the CPA has resulted in mistake on the portion of the manufacturer being relevant is a vexing one. The handiness of the development hazard defense mechanism will intend that notwithstanding that the suspect may be at mistake, due to an nonsubjective question into the discoverability of the cause of the defect, a suspect may get away liability because he made sensible efforts to detect the being of a possible job. But how will a defendant’s attempts be judged? It is possible that such an question will be kindred to the foreseeability trial under a fault-based strategy and that in pattern, the rigorous liability government may be simply a facade that provides a superficial impression of greater consumer protection whilst enforcing liability other than on a rigorous footing. Newdick has stated that mistake will stay relevant unless the defense mechanism precludes liability if there was no cognition whatsoever of the possibility of a defect ( which it does non ) and he has suggested that one time the possibility of a defect is known, the defense mechanism should non be available because the defense mechanism would otherwise be merely reiterating the statutory signifier that is unequal in carelessness. [ 6 ] Depending on how the tribunals interpret the legislative act the defense mechanism may sabotage the rigorous liability government and will be excessively dependent on asking how the suspect ought to hold behaved, in the same manner that mistake is assessed under the rules of carelessness. [ 7 ]

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Is the defendant’s mistake a relevant factor for the bench in finding instances brought under the rigorous liability government of the CPA?

The instance of A and others v The National Blood Authority [ 8 ] served to chase away a big sum of the frights expressed above. Liability was imposed because, even though there were no agencies available at the clip to test the blood to demo whether it was infected with Hepatitis C, the possibility of the hazard was known. In finding whether a merchandise was faulty Burton J differentiated between standard and non-standard merchandises. He held that the contaminated blood was non-standard and that, as the populace at big were entitled to anticipate that the blood was non contaminated, the merchandise given to the claimants was faulty even though there was no manner to find that the peculiar blood in any one bag was faulty but simply that there was a opportunity that any of the blood could be contaminated by the virus. Burton J seemed determined to extinguish any component of mistake or thoughts of carelessness from his determination. He found that the avoidability of harmful features was non a relevant feature. He rejected both the cost-benefit and risk-utility attacks in his judgement and prevented the suspects from trusting on the development hazard defense mechanism because, although they could non insulate which bag in peculiar may hold been infected, the suspect had cognition that any of the bags may incorporate the virus and they didn’t warn the claimants of this fact. [ 9 ] Burton J’s judgement agreements with the sentiment of the ECJ that the defense mechanism should be narrowly construed as it creates an exclusion to the cardinal rule of rigorous liability. [ 10 ] After Burton J’s judgement it seemed that frights that the CPA would be interpreted as simply a fault-based government under a pretense of strict-liability were baseless. However, the Foster V Biosil [ 11 ] instance has led critics to one time once more comment that mistake may be the standard upon which liability is based although it should be noted that the claim in this instance was against makers non manufacturers. The defendant’s were accused of fabricating faulty chest implants that had ruptured. The behavior of the suspect was a considerable consideration for the tribunal. The defendant’s behavior, or objectively assessed degree of mistake has ever been considered to be important for finding liability in carelessness, whereas it should non be a factor to be taken into history under a rigorous liability government where the behavior of the merchandise, and non the suspect, should be the critical determiner. The justice in Foster disagreed with Burton J’s trial for happening a merchandise to be faulty as the justice held that s.4 ( 1 ) ( vitamin E ) demands cogent evidence of a proficient defect and non merely an averment that the merchandise failed in a manner contrary to what the populace might hold expected. [ 12 ] The suspect advanced that, due to the high degree of Biosil’s quality control processes, it was really improbable that merely one implant would hold been faulty and the justice found this to be compelling statement. [ 13 ] However, the merchandise was faulty hence accent should non hold been placed on the defendant’s behavior. Liability was in fact non imposed mostly because the tribunal could non find whether the maker or the sawbones who inserted the chest implants were to fault for the harm to the implants. However, when the tribunal was seeking to find whether the maker satisfied the statutory trial, it is worrying that such accent was placed on negligence-derived constructs such as the defendant’s behavior. The instance of Pollard v Tesco Stores Ltd [ 14 ] concerned a claim against Tesco by a claimant who alleged that the industry of a fictile bottle incorporating dish washer pulverization was faulty. The child-resistant cap fell below the criterions imposed by the proper governments which the populace would anticipate it to follow with. As this fact was accepted by the tribunal it would look that, under the CPA, the suspects should hold been held apt. However, on entreaty, the suspects were non found to be apt because it was held that the populace was merely entitled to anticipate such a child-resistant cap to be more hard to open than an ordinary prison guard cap. This opinion has the unfortunate and unacceptable consequence that a individual who operates in a sector where the populace has no cognition of standard guidelines is more likely to get away liability.

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The attack of the EU and the US

It seems that the bulk of the Member States have implemented and interpreted the Directive in a similar manner to the UK in a manner that consequences in liability being determined by comparatively rigorous liability but with makings which have introduced an probe into the blameworthiness of the suspect in some instances. The Lovells Report, published in 2003, reported that the Directive had been interpreted comparatively uniformly in all Member States, although complete harmonization has non been achieved, and that a common degree of protection for consumers and a common footing for liability of manufacturers existed. [ 15 ] Based on the consequences of extended research the study concluded that there was no demand for alteration of the Directive and that it was by and large functioning the intent for which it had been enacted.

In the US merchandise liability is governed by the Restatement ( Third ) of Torts: Merchandises Liability and the attack is really similar to the attack taken by carelessness. A defense mechanism akin to the development hazard defense mechanism is besides available and it seems that the US operates a government that is more manufacturer- and producer-friendly than consumer friendly. In fact, some merchandise types, for illustration blood, have been excluded from inclusion in a merchandise liability government. Whilst makers are subjected to strict liability, a negligence-style criterion is applied for manufacturers.


The Commission is of the sentiment that the application of the Directive in the several Member States is satisfactory. The EU offers greater protection for consumers than is provided in the US and it seems that on a Europe-wide degree the Directive has extended the range of liability by enforcing a higher criterion on manufacturers than was antecedently demanded by the negligence-based government. However, as the above analysis of the relevant instance jurisprudence indicates, it seems that the UK tribunals have non been as willing to enforce rigorous liability for faulty criterions. The high criterion that was set in the National Blood instance has been lowered by subsequent determinations and it remains to be seen how the tribunals will construe the CPA in the hereafter – merely so can a more comprehensive decision as to the lingering being of mistake in merchandise liability instances be given. At present, it is hoped that an attack akin to Burton J’s will be followed, because if this happens the tribunals will successfully construe the CPA in the mode in which the Directive intended and it is hoped that the CPA will non allow mistake to be a dominant factor in finding liability for faulty merchandises under the pretense of a rigorous liability government.

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G. Calabresi, ‘Towards a Trial for Strict Liability in Torts ‘ ( 1972 ) 81 Yale LJ 1054 ;

G. Howells and M. Mildred, “ Infected Blood: Defect and Discoverability: A First Exposition of the EC Product Liability Directive ” ( 2002 ) 65 Modern Law Review 95

CJ. Miller, Product Liability, [ 2004 ] OUP

C. Newdick, ‘The Future of Negligence in Product Liability ‘ ( 1987 ) 104 LQR 288

C Newdick, ‘The Development Risks Defence of the Consumer Protection Act 1987 ‘ ( 1988 ) Camb LJ 455

J. Stapleton, ‘Products Liability Reform – Real number or Illusory ‘ ( 1986 ) 6 OJLS 392

J. Stapleton, Product Liability [ 1994 ] Butterworths