The Consumer Protection Act 1987 (CPA)

The CPA allows those injured or whose property is damaged by a defective product to sue the producer for compensation. All moveable products are covered.

Who can be sued?

‘Producers' include:

• Manufacturers of finished products, components or raw materials
• Those with their name, trademark or feature on products
• EU importers Furthermore, retailers are treated as producers if the real producer cannot be identified and if the retailer fails to inform the consumer of the producer's identity within a reasonable time.

When is a product defective?

A product will be ‘defective' when it ‘does not provide the safety which a person is entitled to expect'. The Court will consider presentation (labelling and instructions), reasonable use , and the time when it was put into circulation. The fact that a better (or safer) product has subsequently been put on the market, will not automatically make the old product ‘defective', although the Court will scrutinise this later development.

How relevant are Standards?

The Court of Appeal recently held that a failure to manufacture a product according to a British (or similar) Standard will not automatically result in a finding of defectiveness. Manufacturers should be aware, however, that the flipside is also probably true: adherence to standards is only one factor to be considered and is not conclusive.

How can a producer escape liability?

Liability under the CPA is strict. It is not a question of ‘fault'. Where a product is defective, the producer will be liable, unless s/he can make out one of the narrow defences:

(a) He did not put the product into circulation

(b) The defect did not exist when he did

(c) The product was not commercial in nature

(d) Mandatory public regulations

(e) Scientific and technical knowledge

(f) For a component manufacturer, the defect results from design of the overall product or instructions.

Negligence

Claims in negligence are more difficult for consumers because they need to show a breach of the duty to take reasonable care. This requires fault on the part of the manufacturer/supplier. Distinctions are often made between manufacturing defects, design defects, and warning/instruction defects when assessing what the duty to take care entails.

Contractual Disputes

Retailers are familiar with implied terms under the Sale of Goods Act 1979. Goods must be fit for purpose and of satisfactory quality. These are the most important implied terms in product liability claims, not least because satisfactory quality is determined with reference to ‘(a) fitness for all the purposes for which goods of that kind are commonly supplied, (b) appearance and finish, (c) freedom from minor defects, (d) safety, and (e) durability'.

Consumer guarantees also create an angle of attack for consumers. Consumers could, historically, only sue their direct contractual partner on the contract, in other words the retailer. Now, however, where a consumer is sold or supplied with goods which are offered with a consumer guarantee, that guarantee takes effect as a contractual obligation owed by the guarantor under the terms of the guarantee and associated advertising.

Marcus Pilgerstorfe
Old Square Chambers
0207 269 0300
pilgerstorfer@oldsquare.co.uk

Michael Morse
Tel: 0113 225 8811
E Mail: mmorse@godloves.co.uk

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