Legalease Home page
Regulated products

Defective product liability

This section contains:
Introduction
Liability for defective products
Meaning of 'defect'
Defence to claim for damage
Damage giving rise to liability
Exclusion of liability

Time limit for claim

Introduction

Part I of the Consumer Protection Act 1987 (CPA) sets out a scheme dealing with civil liability for unsafe goods whereby the producer of an unsafe product or, as the case may be, another person in the chain of supply, is held strictly liable in damages with respect to any defect in those goods which causes damage.

The CPA implements Council Directive (EC) 85/374 (OJ L210, 7.8.85, p 29) on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products.

The primary liability for defective products lies on the producer. There are special provisions for components, persons who market products under their own brand name and importers. In order to meet cases where he cannot identify the producer, the person injured by the product may in the first instance hold liable his immediate supplier, who may then in turn pass liability up the chain of distribution by identifying his supplier, and so on to the ultimate manufacturer or importer

Liability for defective products

Where any damage is caused wholly or partly by a defect in a product, each of the following persons is liable for the damage:

* the producer of the product;

* 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;

* 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 supply8it to another.

Where faulty goods have been installed, the seller is liable to remove and reinstall the goods or pay for such to be carried out:

* Case C-65/09 Wittmer v Gebr. Weber GmbH; Case C-87/09 Putz v Medianess Electronics GmbH (2011) Times, 6 July, ECJ..

Where any damage is caused wholly or partly by a defect in a product, any person who supplied the product, whether to the person who suffered the damage, to the producer of any product in which the product in question is comprised or to any other person, is liable for the damage if:

* the person who suffered the damage requests the supplier to identify one or more of the persons, whether still in existence or not, specified in heads (1) to (3) above in relation to the product;

* that request is made within a reasonable period after the damage occurs and at a time when it is not reasonably practicable for the person making the request to identify all those persons; and

* the supplier fails, within a reasonable period after receiving the request, either to comply with the request or to identify the person who supplied the product to him.

Where two or more persons are liable for the same damage, their liability is joint and several.

Meaning of 'defect'

There is a defect in a product if the safety of the product is not such as persons generally are entitled to expect. ‘Safety' in relation to a product includes safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

In determining for these purposes what persons generally are entitled to expect in relation to a product, all the circumstances are to be taken into account, including:

* the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;

* what might reasonably be expected to be done with or in relation to the product; and

* the time when the product was supplied by its producer.

Defence to claim for damage

If a claim for damage arising from a defective product is made against any person, it is a defence for him to show that:

* the defect is attributable to compliance with any requirement imposed by or under any enactment or with any Community obligation;

* he did not at any time supply the product to another;

* :the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person's; and that the provisions relating to persons generally liable for the damage do not apply to that person or apply to him by virtue only of things done otherwise than with a view to profit;

* the defect did not exist in the product at the relevant time;

* the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control; note that it is doubtful whether an absence of previous comparable accidents at the time of supply can amount to 'scientific and technical knowledge': see
Abouzaid v Mothercare (UK) Ltd [2000] [2000] EWCA Civ http://www.bailii.org/ew/cases/EWCA/Civ/2000/348.html

or

* the defect constituted a defect in another product in which the product in question had been comprised; and was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product.

Damage giving rise to liability (CPA s.5)

‘Damage' for this purpose means death or personal injury or any loss or damage to any property, including land.

A person is not liable in respect of any defect in a product for the loss of or any damage to the product itself, or for the loss of or any damage to the whole or any part of any product which has been supplied with the product in question comprised in it.

A person is also not liable for any loss of or damage to any property which, at the time it is lost or damaged, is not of a description of property ordinarily intended for private use, occupation or consumption and intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.

No damages are to be awarded if the damage does not exceed £275.

Attempted exclusion of liability for defect

Liability for defective products may not be limited or excluded by any contract term, by any notice or by any other provision(CPA S.7).

Time limit for claim

In determining who has suffered any loss of or damage to property and when any such loss or damage occurred, the loss or damage is to be regarded as having occurred at the earliest time at which a person with an interest in the property had knowledge of the material facts about the loss or damage.

For these purposes, a person's knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him or from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek. But a person is not to be taken by virtue of this provision to have knowledge of a fact ascertainable by him only with the help of expert advice unless he has failed to take all reasonable steps to obtain.

The material facts about any loss or damage to any property are such facts about the loss or damage as would lead a reasonable person with an interest in the property to consider the loss or damage sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

In an action for damages by virtue of any of the provisions relating to product liability, the ordinary time limits provided in the Limitation Act 1980 do not apply. The general time limit is ten from the date the cause of action accrued.

In a case of a claim for damages in respect of personal injuries, the time limit is three years from the later of:

* the date on which the cause of action accrued; and

* the date of knowledge of the claimant.
If the claimant dies within the three year period, the time limit is extended to three years from the later of the date of death and the date of the personal representative's knowledge.

The court has a discretionary power to exclude the above time limits in the case of a claim for personal injuries or death.

[Page created: 26/02/2014]

<Back to Regulated products