Defective Products
1. Does D fall within the Act?
Who does the Act apply to?
s.2(2) Consumer Protection Act 1987 –
(a) producer of the product,
(b) any person who, by putting his name on the product or using a
trademark 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 into the UK.
s.2(3) Consumer Protection Act 1987 –
Supplier.
s.2(2) = primary, s.2(3) = secondary - if you cannot find the producer.
Supplier can get out of liability if they name the producer.
“Producer” –
s.1(2) Consumer Protection Act 1987 – ‘producer’ means:
(a) the person who manufactured it,
(b) in the case of a substance which has not been manufactured but
has been won or abstracted, the person who won or abstracted it,
(c) in the case of a product which has not been manufactured, won or
abstracted, but essential characteristics of which are attributable to an
industrial or other process having been carried out (e.g., in relation to
agricultural produce) the person who carried out that process.
Still producer if only contribute part of the product.
2. Is there a defect?
“Defect” –
s.3(1) Consumer Protection Act 1987 –
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, shall include 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.
Primary focus = safety.
Focus on all the circumstances:
a. Warnings:
e.g., in Wilkes v DePuy International Ltd –
The fault to the C-stem was a risk that was expressly warned about in the
Instructions for Use and C was made expressly aware of other, much higher
risks of failure of the hip replacement.
b. Regulations:
Wilkes v DePuy International Ltd –
In an appropriate case, compliance with mandatory standards will have
considerable weight, because they have been set at a level which the
appropriate regulatory authority has determined is appropriate for safety.
BUT – this is not an automatic defence – it may be evidence.
c. Industry-standards:
Tesco Stores Ltd v Pollard –
C was a toddler who swallowed dishwashing powder from a plastic bottle
from Tesco. C sued Tesco and the producer for the defective child resistant
cap not conforming to the relevant British Design Standard according to
which the cp was supposed to have been manufactured.
Laws LJ –
, A design standard that is approved by a public authority or adopted
by the manufacturer does not fix the level of safety that can be
legitimately expected by persons.
There was no reference to the standard on the cap and there
was no reason why the public would know of the standard.
The level is also not determined by the full extent of the design
standard to which the product was manufactured.
The public has no idea what the design standard is.
It would otherwise imply a contractual warranty as to the
safety standard to which the product had been designed.
d. Cost-Benefit:
Wilkes v DePuy –
Relates to how beneficial it was as a product.
Don’t expect producers to take disproportionate steps.
e. Standard/Non-Standard:
A v National Blood Authority –
Cs were patients who were infected with Hepatitis C during blood
transfusions. It was not broadly known by the public at the time that there
was any risk of infection by blood transfusions.
HC started that to determine if a product is defective, it is helpful to
distinguish between ‘standard’ and ‘non-standard’ products.
Standard:
Do not deviate from the intended design, the harmful
characteristic is a feature of the product.
e.g., knives being sharp.
Design = defective.
They are only defective if a reasonable consumer would
consider it unsafe, bearing in mind all foreseeable ways the
product could be used.
The social utility of the harm-causing feature can be
relevant, so long as the public is fully informed about
it and accepts it.
Non-standard:
Deviated from the intended design in some harmful manner.
The intention of the manufacturer isn’t realised.
Product = defective.
They are presumed to be defective unless the risk of non-
conformity is well-known and socially accepted.
e.g., the risk that birth control may not be 100%
effective.
Social utility is irrelevant to whether or not a non-standard
product is defective.
The Blood Authority in this case did not intend to harvest hepatitis-infected
blood and therefore was a non-standard product.
3. Has the Defect Caused Damage to the Claimant?
Causation:
Starting point = ‘but for’ test
Barnett v Chelsea & Kensington Hospital
4. Is the damage covered by the Act?
s.5(1) Consumer Protection Act 1987 –
“Damage” means death or personal injury or any loss of or damage to any
property (including land).
Exceptions:
s.5(2) – complex systems argument:
Cannot claim for any loss or damage to the product itself.
1. Does D fall within the Act?
Who does the Act apply to?
s.2(2) Consumer Protection Act 1987 –
(a) producer of the product,
(b) any person who, by putting his name on the product or using a
trademark 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 into the UK.
s.2(3) Consumer Protection Act 1987 –
Supplier.
s.2(2) = primary, s.2(3) = secondary - if you cannot find the producer.
Supplier can get out of liability if they name the producer.
“Producer” –
s.1(2) Consumer Protection Act 1987 – ‘producer’ means:
(a) the person who manufactured it,
(b) in the case of a substance which has not been manufactured but
has been won or abstracted, the person who won or abstracted it,
(c) in the case of a product which has not been manufactured, won or
abstracted, but essential characteristics of which are attributable to an
industrial or other process having been carried out (e.g., in relation to
agricultural produce) the person who carried out that process.
Still producer if only contribute part of the product.
2. Is there a defect?
“Defect” –
s.3(1) Consumer Protection Act 1987 –
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, shall include 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.
Primary focus = safety.
Focus on all the circumstances:
a. Warnings:
e.g., in Wilkes v DePuy International Ltd –
The fault to the C-stem was a risk that was expressly warned about in the
Instructions for Use and C was made expressly aware of other, much higher
risks of failure of the hip replacement.
b. Regulations:
Wilkes v DePuy International Ltd –
In an appropriate case, compliance with mandatory standards will have
considerable weight, because they have been set at a level which the
appropriate regulatory authority has determined is appropriate for safety.
BUT – this is not an automatic defence – it may be evidence.
c. Industry-standards:
Tesco Stores Ltd v Pollard –
C was a toddler who swallowed dishwashing powder from a plastic bottle
from Tesco. C sued Tesco and the producer for the defective child resistant
cap not conforming to the relevant British Design Standard according to
which the cp was supposed to have been manufactured.
Laws LJ –
, A design standard that is approved by a public authority or adopted
by the manufacturer does not fix the level of safety that can be
legitimately expected by persons.
There was no reference to the standard on the cap and there
was no reason why the public would know of the standard.
The level is also not determined by the full extent of the design
standard to which the product was manufactured.
The public has no idea what the design standard is.
It would otherwise imply a contractual warranty as to the
safety standard to which the product had been designed.
d. Cost-Benefit:
Wilkes v DePuy –
Relates to how beneficial it was as a product.
Don’t expect producers to take disproportionate steps.
e. Standard/Non-Standard:
A v National Blood Authority –
Cs were patients who were infected with Hepatitis C during blood
transfusions. It was not broadly known by the public at the time that there
was any risk of infection by blood transfusions.
HC started that to determine if a product is defective, it is helpful to
distinguish between ‘standard’ and ‘non-standard’ products.
Standard:
Do not deviate from the intended design, the harmful
characteristic is a feature of the product.
e.g., knives being sharp.
Design = defective.
They are only defective if a reasonable consumer would
consider it unsafe, bearing in mind all foreseeable ways the
product could be used.
The social utility of the harm-causing feature can be
relevant, so long as the public is fully informed about
it and accepts it.
Non-standard:
Deviated from the intended design in some harmful manner.
The intention of the manufacturer isn’t realised.
Product = defective.
They are presumed to be defective unless the risk of non-
conformity is well-known and socially accepted.
e.g., the risk that birth control may not be 100%
effective.
Social utility is irrelevant to whether or not a non-standard
product is defective.
The Blood Authority in this case did not intend to harvest hepatitis-infected
blood and therefore was a non-standard product.
3. Has the Defect Caused Damage to the Claimant?
Causation:
Starting point = ‘but for’ test
Barnett v Chelsea & Kensington Hospital
4. Is the damage covered by the Act?
s.5(1) Consumer Protection Act 1987 –
“Damage” means death or personal injury or any loss of or damage to any
property (including land).
Exceptions:
s.5(2) – complex systems argument:
Cannot claim for any loss or damage to the product itself.
