Studying Tort Law: A Guide to the Consumer Protection Act 1987

Product Liability

Product liability has developed over the years. The famous case from which the tort of negligence emerged, Donoghue v Stevenson [1932] 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 Act 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. 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.

What is a 'product'?

Section 1 of the Act explains what can be considered 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).

Who can be liable?

Section 2 of the Act explains who can be sued over a defective product.

S 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 considered further below in relation to section 5.

What is a 'defect'?

Section 3 is the main section of the Act to have been litigated. It 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 [...]’.

Section 3(2) provides a number of illustrative, rather than exhaustive, factors to be considered when determining whether a product is defective.

The courts have sought to balance consumer expectations against producer liability. In Bogle v McDonald’s Restaurants [2002] EWHC 490 (QB), scalding-hot coffee was held not to be defective because it was in a state that consumers would expect: people expect their coffee to be hot. Similarly, in Tesco Stores v Pollock [2006] EWCA Civ 393, a child-resistant bottle of dishwasher powder was not defective merely because 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 [2000] 59 BMLR 185 where a condom was held not to be defective even though the woman became pregnant, because there is always a risk of failure. Similarly in XYZ v Schering Health Care Ltd [2002] EWHC 1420 it was held that a contraceptive pill was not defective for causing cardiovascular problems because this was a known possible side effect.

However, the position may be different where a risk is known to producers but not to consumers. In A and Others v National Blood Authority and Another [2001] 3 All ER 289, it was known that blood used for transfusions could be contaminated, but this was known only to doctors and not the general public. The contamination could not be detected or removed. Nevertheless, the blood was held to be defective because the public was entitled to expect that it would not be contaminated.

In this case, Burton J referred directly to the Articles of the Directive rather than the 1987 Act. He did so because the CJEU's decision in CEC v UK [1997] 3 CMLR 923 had confirmed that the 1987 Act should be read in light of the wording of the Directive.

Another case involving section 3 is Abouzaid v Mothercare (UK) Ltd (21 December 2000, CA). While assembling a pram, an elastic strap snapped out of the claimant’s hand and struck him in the eye. The Court of Appeal held that the injury was caused by a defect in the product because more could have been done to prevent such injuries.

What constitutes 'damage'?

Section 5 of the Act explains what it means by ‘damage’. Under section 5(1), 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 under section 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.

Defences

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 – section 4(1)(a); defendant was not the supplier – section 4(1)(c) and the defect was not in existence at the relevant time – section 4(1)(d). A full list of the defences under Section 4 can be found here.