Chapter 10 Guidance on answering the questions in the book

Product liability

Question 1

Does the Consumer Protection Act 1987 improve on recovery in common law negligence in respect of defective products which cause harm?

Outline

  • Consumer protection in tort is concerned with protecting consumers against harm caused by ‘unsafe’ products, not about compensation for defects in the product itself. In Donoghue v Stevenson the court recognised that a legal relationship outside contract law could arise if a relationship of proximity exists between a consumer and the manufacturer of the product.
  • The element of the decision in Donoghue v Stevenson known as the ‘narrow ratio’ needs to be explained. It is important to note that liability in negligence requires proof of fault on the part of the manufacturer. A claimant seeking to prove that a manufacturer was negligent may have difficulty in obtaining evidence of fault on the part of the manufacturer (especially in claims involving pharmaceutical or technological products). The defect may have been caused by negligence during the manufacturing process but it could also be as a result of a defect in the design of the product.
  • Growing pressure for strict liability for harm caused by defective products following disasters such as the Thalidomide tragedy led to the Council of European Communities Directive 85/374/EEC requiring harmonization of product liability laws in member states. The United Kingdom government enacted the Consumer Protection Act 1987.
  • Under the Act, anyone supplying defective products within the European Union (even if the products are imported from outside) is strictly liable in tort if the defect causes injury to person or property. Anyone who suffers injury or damage caused by a defective product can recover (although there are some limitations on recovery of property damage). The exclusion of liability under the Act is prohibited.
  • The fault-based system under common law focuses on the behaviour of the defendant and it is generally more difficult for a claimant to prove his case. Strict liability, however, focuses on the product itself, rather than on the person behind the product, and this means that a considerable degree of the burden of proof is shifted from the claimant to the defendant.
  • The test of defectiveness is whether the product is as safe as persons generally are entitled to expect. However, what persons generally are entitled to expect may be a very different standard to that which ‘consumers’ are entitled to expect. Because the standard that persons generally are entitled to expect is set by the court, not only will consumers’ expectations about a product’s safety be taken into account, but the view of the manufacturers will also be considered. This test has been criticised because it means that in some cases the standard of safety which persons are entitled to expect in a product will be lower.
  • The Acts lists a number of defences of which the most controversial is the ‘development risks’ defence. This defence is similar to the ‘state of the art’ defence (see Roe v Ministry of Health) in common law negligence and it is one of the most widely criticized aspects of the Act.

Question 2

The day after Emad had a new floor fitted by EuroTiles in his home-based recording studio he telephoned the company to complain about a strong chemical odour emanating from the tiles. The odour aggravated his asthma and made Emad feel ill. He was advised to leave his kitchen window open and assured by the salesperson that the odour would disappear when the adhesive on the tiles dried out. However, the adhesive did not dry out and after two weeks it seeped through the floorboards and damaged Emad’s underfloor sound system. It has now transpired that the adhesive had not dried properly because the incorrect solvent had been used by the manufacturer who supplied the product to EuroTiles. Emad has suffered a severe asthma attack and the cost of rectifying the damage to his underfloor sound system is expected to be in excess of £10,000.

Advise Emad

Outline

Emad

  • Personal injury damages, however small, are recoverable under the Consumer Protection Act. EuroTiles as the supplier of the defective product, is strictly liable to Emad for the defect which caused injury to his person.
  • Damage to property is governed by s5(2) which provides that damage to, or loss of, the defective product itself, including damage to a product caused by a defective component, is not recoverable. Section 5(3) provides that ‘property’ must be of a type ordinarily intended for private use and the claimant must have intended to use it mainly for his own private purposes. Section 5(4) provides that property damage below £275 is excluded.
  • Recovery for the damage to Emad's underfloor sound system will be subject to the above provisions.