Product liability

This chapter was concerned with the liability of manufacturers and producers for personal injury or damage to property caused by a defective product. It examined how the law concerning ‘product liability’ has developed and how it is applied in seeking to define, limit, and apportion responsibility for defective products which cause harm. Before the emergence ‘strict liability’ statutory framework for product liability, a consumer injured by a product that he had bought could bring an action against the retailer for breach of contract. Not only would the claimant be able to recover in contract for personal injury and property damage caused by the defective product; under contract law the claimant will also be compensated for the cost of replacing the product itself. In the law of tort there is no recovery for harm caused to the product itself or loss incurred due to its purchase, which is regarded as pure economic loss.

Product liability in tort exists both in the common law and in statute; the claimant being able to sue in both actions or choose the one which is most advantageous. This means that you must be equally acquainted with both the common law and the Consumer Protection Act 1987.

The milestone in the development of common law product liability was Donoghue v Stevenson in 1932. The narrow ratio established the duty of care owed to the ‘ultimate consumer’ by the manufacturer of a product for personal injury or property damage caused by that product. You will see that the common law developed to determine the wide range of manufacturers and consumers, the latter including anyone affected by the product, as in Kubach v Hollands. A key case is Australian Knitting Mills v Grant, which deals with the concept of ‘intermediate examination’.

The Consumer Protection Act 1987 (Part I) was the UK response to a European Union Directive on product liability. It purports to establish a regime of ‘strict liability’ giving a measure of consistency across EU jurisdictions. Key concepts under the legislation which must be understood, are ‘producer’, ‘product’ and that of ‘defect’, that is: what constitutes a defective product? The last required element arguably means that liability is not truly ‘strict’ under the 1987 Act, however it remains the case that it is not necessary for a claimant to prove that a defendant producer has been negligent.

It is important that you understand the defences available under the 1987 Act, particularly that under s4(1)(e), sometimes known as the ‘development risks’ defence, as seen in the key case of A v National Blood Authority. There are not a large number of cases under product liability but it’s important to understand the application of both the common law and statute in the cases discussed in the chapter.