Defective product legislation offers a faster alternative to negligence claims

Many practitioners have scant knowledge of the Consumer Protection Act 1987 (CPA). An interesting barometer of its use is revealed by a search in one of the law databases. The word 'negligence' features in nearly 6,000 judgments, but 'Consumer Protection Act' in all its guises attracts just over 100 hits.

It is perhaps time for us to make more use of this significant piece of legislation. The Act is the English version of the EU Product Liability Directive and imposes strict liability on the producer of a defective product (supplied in the course of business) for any damage (including death or personal injury) caused by it.

According to the 2011 Annual Product Recall report from Recall UK, 393 product were recalled in 2011. All were products that could affect the health and safety of the consumer. It is therefore likely that would-be clients have suffered injury or damage caused by the defects that led to these product recalls.

Under the CPA a product is defective if its safety is 'not such as persons generally are entitled to expect' (section 3(1)).

From a practitioner point of view, the CPA provides a much more direct route to a successful claim than negligence law. It is not even necessary to show how a defect arose: it is sufficient to establish that the product is defective. The issue is safety. However, not every injury will lead to a successful claim.

In Pollard v Tesco [2006] EWCA Civ 393, the Court of Appeal rejected a claim on behalf of a 13-month-old child who ingested dishwasher powder from a plastic bottle that had a child-resistant cap but not one complying with the appropriate British standard. The court decided that it was sufficient for the cap to be more difficult to open than an ordinary screw cap: product therefore not defective.

In Relph v Yamaha [1996] the court rejected arguments that an all-terrain three-wheel vehicle was inherently unsafe, saying that the documentation and warnings on the machine itself were sufficient and therefore it was not defective.

Causation principles

Other cases have, however, decided in favour of the claimant under the CPA. A metal buckle to attach a fleece to a baby chair hit the claimant in the eye while he was trying to attach it, causing permanent loss of vision. Held defective: the product was supplied with a design that permitted the risk to arise without the warning that the user should take care to avoid injury (Abouzaid v Mothercare [2000]).

Claimants who received blood infected with hepatitis C were entitled to expect that the products would be free from infection. Such products were therefore held defective within the meaning of the CPA (A & Others v National Blood Authority [2001]).

A claimant was injured when a handlebar on his mountain bike broke as he was riding along a bridleway. Held that the bike was defective (Ide v ATB sales). Damage was done to the claimant's property when her car burst into flames and set fire to her garage (Lexus v Russell). This was not a CPA case but the principles of causation are relevant.

Both cases were considered together by the Court of Appeal ([2008] EWCA Civ 424) because in neither case was there clear evidence as to what caused the damage. In both cases there were competing possibilities. In Ide, the claimant contended that the handlebar broke while he was riding, but the defendants argued that it broke when he fell off the bike. In Lexus, there were three possibilities: a defect in the car, a defect in the wiring of the garage and arson. Arson was ruled out. The car was so badly damaged that examination of the wiring could not determine if it caused the fire. The same applied to the wiring in the garage.

In both cases the court upheld the first instance decision '“ finding in favour of the owners of the damaged bike and car. It is significant that in neither case was there clear evidence of causation and neither of the successful parties was required to prove the mechanism of damage.

The CPA is not a panacea for all product liability claims. It will always be necessary to prove causation and there will often be issues as to what constitutes a defect within the meaning of the Act. Defendants have several defences open to them including the development risks defence '“ that they could not have been expected to know of the defect due to the state of scientific or technical knowledge at the relevant time. There is also an overriding limitation period of ten years from the date when the product was supplied. If a product was nine years old when the damage was caused, there is only a year left to claim. The ten-year limitation long stop also applies to infant claims.

Where there has been a product recall, producers of the goods may try to rely on the fact of the product recall to escape liability. There seems to be no decided case on the issue, but common sense suggests that the only circumstances where defendants might be able to escape the consequences of producing unsafe products would be where the claimant was aware of the recall and continued to put himself at risk.