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1. What are the advantages and disadvantages of having a system of strict liability in relation to defective products? Does strict liability make more sense when the harm suffered is personal injury?
An answer to this needs to begin with the reasons (policy and otherwise) behind the introduction of strict liability (SL) in relation to defective products. Some of the advantages of having SL are clearly linked to the reasoning behind its introduction, as the table below illustrates (also see section 12.2.2 and note these reasons are non-exhaustive).
Advantages |
Disadvantages |
Manufacturers create products in the search of profit, therefore it is appropriate for them to bear any risks associated with them – including those that manifest in the design process (as opposed to the manufacturing process) |
Manufacturers already absorb the costs and risks of development in other ways and so it seems unreasonable that they should also have to pay for harms suffered by people using their products unless they were at fault in some way. |
SL allocates the risk onto those best able to bear it (manufacturers rather than consumers). A manufacturer would be in the best position to insure against the risks (and the cost of insurance can be reflected in the product price and therefore distributed amongst all consumers anyway) |
Consumers welcome choice and innovation and should be free to choose, based on price and product information, whether and what risk they are prepared to take with a product. SL removes customer choice and autonomy |
SL provides manufacturers with an incentive to take all possible safety precautions during the design and manufacturing processes – therefore consumer products will be the safest they can be |
Consumers should take more care of themselves by using products with care – SL may be perceived as removing this need |
SL should make it easier for consumers to claim when they are injured by products – and the outcomes more certain |
We should not encourage consumers to ‘blame and claim’ so readily – the ordinary principles of negligence (and contract law) give consumers enough legal protection already |
Each of these points can be explored in a lot more depth with examples from cases being brought in to emphasise the arguments – a good answer would use cases and also academic literature to firmly posit the arguments. A better answer might consider why there seem to be relatively few cases in this area. Answers should not be side-tracked into thinking about products generally – always bear in mind it is defective products we are talking about (and perhaps look again at the definition of a 'defect' in a product from section 3 of Part I of the Consumer Protection Act 1987 (section 12.3.2), as well as some of the cases that have helped to shape the definition, including the most recent ones which seem to be tightening up the situations in which liability will be found (see e.g. Gee and others v DePuy International Ltd [2018]).
As for the personal injury angle – a good answer would show some thought about what other kinds of injuries can be caused by defective products (economic, property etc.) and an awareness about what currently can and cannot be claimed for in respect of these. If products cause actual personal injury, does this make them any more defective than if they cause mere property damage?
2. Who should bear the risks and costs associated with innovation and increased consumer choice?
There are two obvious potential answers to this question – manufacturers or consumers – and this will depend on your perspective of the value of having strict liability in relation to defective products (see the answer guidance given to question 1). The word 'innovation' in the question clearly has connotations with design and not merely manufacture – so this warrants a closer focus on how design defects have been dealt with more so than manufacturing defects – though that does not necessarily mean that all discussion of contract and/or negligence should be excluded (an overview of the protections afforded to consumers by contract law is included in the online resources if it is not something you have studied yet / recently). A good answer will provide reasons – supported by case law and academic comment – for their choice. It would be hard to answer this question well without reference to A & Others v National Blood Authority [2001] as there is much discussion in Burton J’s judgment about the appropriateness or otherwise of bearing risks of innovation and the mechanism by which this is achieved (though now this should be read in the light of Gee and others v DePuy International Ltd [2018] and similar mass claims cases). All that said, a third potential answer is possible – that 'society' should bear the risks and costs of innovation – this depends on a perspective based on collective responsibility and (distributive) justice and ideas about insurance and also the spread of costs through increased pricing can feed in here.
3. Do the provisions of Part 1 of the Consumer Protection Act 1987 achieve their aims?
Again there are links with some of the material covered in question 1, particularly in outlining the aims of imposing strict liability on manufacturers (and therefore presumably Part 1 of the Consumer Protection Act 1987). Students would, in answering this well, be expected to critique the effect of the CPA – something that is relatively difficult to do given the paucity of case law that has stemmed from it – and must include the most up to date case law. A close textual analysis of the provisions of the CPA (the annotated Act and the 'at a glance' table in section 12.5 may help here) and the cases that help to further define these provisions (e.g. the body of case law on the definition of 'defect' according to s3 CPA) would be expected, as well as some critique of these. Clearly, introducing the opinions of academic scholars would help give an answer more weight, or substance. Again, it would be hard to answer this question well without close reference to A & Others v National Blood Authority [2001] as this case contains a very detailed interpretation of defect and also spends time discussing the effectiveness or otherwise of the 'developments risk defence' – an aspect of the legislation that has attracted a great deal of critique (but see now also Gee and others v DePuy International Ltd [2018]). It is also useful to look around various news sites and/or consumer information sources – are there lots of products being recalled, for instance (or any high-profile example of this). If so, what does this tell us (or not) about the effectiveness of the CPA’s provisions?
It is important to know what the statute says and how it actually ‘works’ in order to be able to apply it to problem questions, as well as to be able to analyse it in the context of an essay. This is one of the reasons we have provided an annotated version of the statute in the book at section 12.4 (also available to download and print from the online resources) and a table outlining ‘at a glance’ the issues involved in a claim (section 12.5). It may also be helpful to look at some of the reasons that the European Commission initiated a public consultation into the effectiveness of the Directive (which is what caused the CPA to be enacted in the first place) and whether it is ‘fit for purpose’ in an increasingly technological society (see section 12.2.2). However, at the time of writing it may also be appropriate to consider what effect, if any, Brexit will have on the area of consumer protection – although the CPA is a piece of domestic legislation, it makes reference to the European Directive that instigated it. It might therefore be worth looking on the government and other websites to see what is proposed when we exit the EU.