Product liability has developed over the years. The famous case from which the tort of negligence emerged, Donoghue v Stevenson  UKHL 100, was a product liability case. It recognised a principle separate from that of the law of contract, the ‘neighbourhood’ or proximity principle. Lord Atkin described this principle as giving rise to a duty to take reasonable steps to protect the consumer, not just the purchaser, from harm. The Consumer Protection Act 1987 adds to the liability of the manufacturer for defective products and imposes a primarily strict liability system.
The Consumer Protection Act 1987 was introduced to give effect to the European Community Directive 1985/374/ECC. However, the enactment of the 1987 Act did not abolish the common law in relation to consumer protection. Therefore actions can still be bought in negligence or contract for situations which the act does not cover. When the Act was enforced, the European Commission took the UK to the Court of Justice of the European Union (CJEU) (then named the European Court of Justice), arguing the directive had not been properly incorporated into domestic law. However, the Commission’s claim failed as the CJEU said the directive was properly enforced because the national courts would have to interpret the 1987 Act to give effect to the directive.
Section 1 of the Act describes what can be considered as a product. Section 1(2) defines a product as ‘any goods or electricity and […] includes a product which is comprised in another product […]’. ‘Goods’ is further defined in Section 45 as including ‘substances, growing crops and things comprised in land by virtue of being attached to it and any ship, aircraft or vehicle’. As of 2000, a ‘product’ now covers primary agricultural produce due to the Consumer Protection Act 1987 (Modification) Order 2000 (SI 2000/2771).
Section 2 of the Act explains who can be sued over a defective product.
S[ection] 2(2)(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;
(c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.
Note, by virtue of Section 2(2)(c) only people who bring them into Member States are liable. This means for example, if products were imported from Brazil into France and then subsequently shipped to the UK, the importer from Brazil would be liable, not the importer from France. Section 2 also provides that if damage is caused by a defective product, the producer may be liable for those damages. This is expanded on below when considering Section 5 of the Act in more detail.
The main section of the act which has been litigated is Section 3. This is the section which provides the definition of a ‘defect’. Article 6 of the directive provides the definition of a defect as when the product ‘does not provide the safety which a person is entitled to expect’. The Act changes this slightly: section 3(1) ‘[…] there is a defect in a product […] if the safety of the product is not such as persons generally are entitled to expect […]’. S 3(2) provides some illustrative, not exhaustive, examples of what is taken into account when determining if the product is defective. They can be found here.
In the litigation consumer responsibility has been balanced against producer’s liability. In Bogle v McDonalds Restaurants  EWHC Civ 490 it was held that scolding hot coffee was not defective because it was in a state which people would expect – people expect their coffee to be hot. Similarly in Tesco Stores v Connor Frederick Pollock  EWCA Civ 393, a child-resistant bottle of dishwasher powder was not defective even though a child managed to open it – the bottle was child-resistant not child-proof.
Where the risk of a product is known, there can be no defect in the product if that risk occurs. This is demonstrated in Richardson v LRC Products Ltd  59 BMLR 185 where a condom was held not to be defective even though the woman became pregnant, because there is always this risk of this happening. Similarly in XYZ v Schering Health Care Ltd  EWHC 1420 it was held that a contraceptive pill was not defective for causing cardiovascular problems because this was a known possible side effect.
In A and Others v National Blood Authority and Another  3 All ER 289, it was known there could be contamination of the blood used for transfusions, however only the doctors knew; the general public did not. The contamination could not be found or removed. However, it was held that because the public expected not to be given contaminated blood, the blood was defective. In this case, note that Burton J referred directly to the Articles of the directive, not the 1987 Act. He did this because the CJEU decision in CEC v UK  3 CMLR 923 had confirmed the 1987 Act should be read in light of the wording of the directive.
Another case involving section 3 of the Act is Abouzaid v Mother Care (UK) Ltd (21 December 2000, CA). In this case, whilst assembling a pram, an elastic strap snapped out of the claimant’s hand and he was struck in the eye by the buckle. The Court of Appeal held that the injury was caused by a defect in the product because they could have done more to prevent such injuries.
Section 5 of the Act explains what it means by ‘damage’. It provides in subsection (1) that damage means ‘death or personal injury or any loss of or damage to any property (including land).’ The value of the property damaged must exceed £275 – s 5(4). There must also be causation – the defective product must have caused the damage. If the damage is too remote, the producer may not be liable for the damage.
Section 4 lists the defences available to producers who are faced with a claim under the 1987 Act. These include defect attributable to compliance with legal requirements – s 4(1)(a); defendant was not the supplier – s 4(1)(c) and the defect was not in existence at the relevant time – s 4(1)(d). A full list of the defences under Section 4 can be found here.