The Consumer Protection Act

The first part of Consumer Protection Act 1987 is implementing the 1985 EC Directive on Product Liability. Section 2 imposes a new statutory liability on the manufacturer of a faulty product which causes physical harm to a person or other property.[1] The 1987 Act imposed strict liability on manufacturers and producers even in absence of a fault on their part. Many authors, academics and jurists welcomed this no-fault liability approach taken as a result of the 1987 Act.[2] The 1987 Act gave the consumers with a new cause of action in the consumer law context which now exists alongside the causes of action in contract law and in the law of negligence. Parliament intended to confirm severe consequences for damages caused by defective goods, hence liability is made strict. Although the claimant need not show fault in the manufacturing process or elsewhere, he will have to prove defect in the product and also that this defect resulted in loss to consumer.

Therefore, the two basic requirements a claimant will need to prove in order to succeed in recovering compensation from manufacturers are defective product and the causal link between the defect and loss suffered. According to the definition provided for in Section 3(1) of the 1987 Act, a product is defective if its safety is not such as persons can generally expect. Section 3(1) therefore provides a ‘consumer expectation’ test that has certain gaps. The law does not state the answer as to what a person should generally be entitled to expect. Neither does the 1987 Act provide specific standard against which the conduct of the manufacturer can be measured. Clearly, the focus of the test is on personal safety but in the absence of any concentrated treatment as to the standard to be expected from a product. An attempt to construe the term widely has been taken by relevant case laws.[3] But again few cases have been and therefore it cannot be said with confidence that they laid down strong guidelines.

Some recent cases have demonstrated reluctance to treat the Section 3 definition broadly.[4] On the substance of obvious vagueness in the meaning of defect in Section 3(1), the 1987 Act makes references to a rundown of variables that must be considered by the Courts while considering the safety of the item. The Court ought to consider the reason for which the item was promoted, directions and warnings, and what may be sensibly anticipated that would be finished with the item and the time when the item was supplied by its maker. The reality in this way remains that a product will not be flawed just if damage results from the product. It can likewise be the situation that the components recorded under Section 3(2), can make a perilous item safe for the purposes of the Act.[5] The Court ought to consider the reason for which the product was advertised, guidelines and warnings, and what may be sensibly anticipated that would be finished with the product and the time when the product was supplied by its maker. The actuality along these lines remains that an item won't be blemished just if damages result from the product.

It can likewise be the situation that the factors recorded under Section 3(2), can make a faulty product safe for the purposes of the 1987 Act. The issues with the definition of “defective product” are large in number. The Section 3(1) definition is extremely unclear and the consumer might find it complex to fulfil this unspecified test. Section 3(2) might help a manufacturer escape liability even if damages resulted from his products. The buyers may not have the capacity to prove by citing using expert evidence that the product was faulty due to the deficiencies of the statutory meaning of defect. There is a lack of authority in case law regarding resolving the issues as very few cases come before the Courts under the 1987 Act. Then again, it can be contended that the issue with the meaning of "defective product" is decently supported. Risk is strict and henceforth makers will be considered mindful regardless of the possibility that they are not at fault. Section 3 would then aid the manufacturer to demonstrate that the product is not defective according to the prerequisites of law. From this point of view, apparently, the law strikes a parity leaving something for the maker to contend to support them also. On the other hand, remembering the setting of the Act and intention to protect consumers, the risky meaning of "defective product" ought to offer ascent to concerns which ought to be tended to as needs be.

Common law protection Despite the introduction of strict liability for defective products by the 1987 Act, common-law liability remains. It is not unusual for an injured party to rely on the tort of negligence, for instance in cases where the claimant has exhausted the limitation period or in a case where the damaged property was intended for commercial use. With a specific end goal to profit from such protection it is not sufficient to demonstrate that the product had a defect any longer. The potential claimant must show that the accused maker owed him/her a duty of care, that this duty was breached by not taking reasonable care, and that this breach was the principle or possibly significant reason for the damage. He/she will then need to show that such harm was reasonably foreseeable. As mentioned above, Donoghue v Stevenson made clear that a manufacturer owes a duty of care to the ultimate consumer of his products. In practice, it will be enough for the claimant to adduce sufficient evidence to justify the inference of the manufacturer’s negligence without being required to specify what caused the defect. Damages awarded in a successful negligence claim are generally intended to compensate for any losses incurred by the claimant as a result of the negligently caused defect.

Damages are available for death or personal injury caused to the claimant and for damage to his or her property, other than damage to the defective product itself, which is generally not recoverable. Pure economic loss caused by the defect is not recoverable. Although the usual remedy is compensatory damages, exemplary or punitive damages are available in principle when the defendant has shown a deliberate, total disregard for the claimant’s rights, in addition to a very high degree of negligence. Having said that, in practice the courts are reluctant to award exemplary damages. Summary of Chapter 3: Although the 1987 Act provisions strict liability on the manufacturers, it also provides provisions for defences that might be relied upon by the defendants once the claimant proves loss suffered from defective products. The statutory defences are contained in sections 4, 6(4) and 6(5) of the 1987 Act. It can be safely concluded that the only controversial defence under the Act is the defence stated in section 4(1)(e), the other provisions being fairly simple.[6] Moreover, inconsistency in the judicial approach to this defence poses further problem in relation to the defence.

As with the meaning of defect, the reported case laws on section 4(1)(e) defence is very few and hence the guidelines have not been so convoluted. Section 4(1)(e) defence is also known as “development risk defence.”[7] Section 4(l)(e) states that it is a defence if the defendant is able show that the state of scientific knowledge at the time that the product was supplied by the defendant was not such as that a manufacturer of similar products might be expected to have discovered the defect. It seems that the language of the defence suggests it would be available when the defect is not noticeable in the context of the knowledge available. Again, this is a very wide defence which might be invoked by any manufacturer. As knowledge of the producer becomes a major factor in this defence, the strict liability element under the 1987 Act gets reduced. This is why the defence is said to be controversial. However, on balance the defence has justification. It only comes into play once defect is proved by the claimant. The burden of proof lies with the defendant to prove this defence and there is a presumption that manufacturers have knowledge of the defect in the product unless proven otherwise.

Therefore, it can be argued that it is not an easy defence to successfully plead because of the nature of burden imposed on the manufacturers. Section 4(1)(e) reveals that the 1987 Act has tried to bring subjectivity into the objective nature of the defence originally provided in the Directive. The defence has been tested, however unsuccessfully, in the Court of Justice.[8] The Court of Justice found that the wording of Section 4(1)(e) is not conflicting with the Union methodology and thus the defence under the 1987 Act was found to have been truly authorized. The Court of Justice, be that as it may, kept up that the UK courts would need to approach the defence in accordance with EU law and case laws judged by the Court of Justice. This perspective was accordingly acknowledged and connected in of A and Abouzaid. The defence would not cover a defect of a known character and thus it has very limited implications.[9] Alternate necessities of Section 4(1)(e) has made it an extremely troublesome defence to argue. In any case, Chadwick LJ has kept up that this defence may confine the part of strict product liability.[10]

Other case laws held that the defence can only be relied upon in cases where the risk is unforeseeable risks,[11] and therefore the scope of pleading the defence is very constricted. On parity, regardless of the fact that the defence looks extremely disputable, there are different adjusting components that are portrayed above in light of which it can be contended that the development risk defence won't make any issue in holding the makers strictly liable for defective products. Conclusion: Strikingly little utilization has been made of the Consumer Protection Act 1987 since its sanctioning on March 1, 1988. Regardless of the appearing appeal to consumers of a compensation framework taking into strict liability without flaw, buyers have for the most part decided to benefit themselves of different remedies. An obvious advantage of statutory product liability regime as opposed to negligence-based product liability is that it establishes a strict liability regime and therefore removes the requirement to prove fault in relation to defectiveness of the relevant product.

By the by, in light of the above discussions, it creates the impression that the UK has a successful consumer protection administration at present. By forcing an extremely strict liability initiative for flawed products on somebody who is regarded to be the maker of the item, the law-making body has been fruitful in lessening number of injuries or deaths caused by defective products. The Act gives, or if nothing else, looks to give, a course for the customer to look for change against the individual who is eventually in responsible for the loss suffered. Part I of the Consumer Protection Act 1987, by implementing the EC Product Liability Directive, introduces strict (no-fault) liability for death, personal injury and damage to personal property caused wholly or partly by a defect in any product.[12] Accordingly the Act makes a radical and expansive legitimate administration for product liability and product safety which is essentially vital to protect consumers. From the start, the Act makes it all that much less demanding for injured parties to bring, and succeed in, pay claims. The rules supplement existing UK civil law on product liability rather than replacing it.[13]

For effectively bringing a claim under the 1987 Act, the claimant would need to demonstrate that he has suffered loss and damage that has been brought about by a defect in the product. Along these lines, the importance of "defective product" has generous significance in this connection and the same has been depicted, however in dubious and loose terms, in Section 3(1) of the 1987 Act that accommodates an extremely wide "consumer expectation" test. The meaning of “defect” lies in the grey and is neither clear nor straightforward. It is uncertain as to what persons generally are entitled to expect. Despite the fact that A v National Blood Authority has endeavoured to give the term a more extensive significance, the Court of Appeal chose to translate the term prohibitively in Tesco Stores Ltd v Pollard. Additionally, the purchaser may think that it hard to demonstrate to the Court's fulfilment that the item has been defective because of absence of expert evidence.

Besides, the factors under Section 3(2) would need to be considered by the Court while surveying the product defect and this may be to some degree worthwhile for the manufacturers who might have the capacity to demonstrate that they have taken steps to minimise or avoid the danger. These encompassing contentions with respect to the test of "defective product" have made the law in this admiration truly unverifiable that ought to be a matter of concern in the consumer protection context. The alleged development risk defence accessible for the manufacturers under Section 4(1)(e) of the 1987 Act has been termed as a disputable defence by numerous academics, judges and authors.[14] The defence disputably gives procurement to exception from liability of the manufacturers can demonstrate that the defect was not reasonably discoverable in the light of accessible knowledge. Seemingly, this some way or another undermines the strict liability framework brought into force by the 1987 Act as the defendant's knowledge would likewise get to be to a degree significant while deciding their liability.

The Act has attempted to bring some subjectivity into the objectivity of the defence initially gave in the European Directive. Then again, three focuses may be raised while supporting this defence. Firstly, the defence is reliable with the soul and intention of the European Directive and this is expressed by the Court of Justice itself.[15] Besides, the defendant bears a substantial burden in the event that he wishes to argue this defence in light of the fact that the assumption is that the maker knows of the defect unless the proved to the contrary. At last, the defence must be argued in appreciation of unforeseeable dangers,[16] known risks are not covered. Henceforth it can be contended that the "development risk defence" does not represent any certifiable risk towards the strict liability administration presented under the Act. The success of the claimants in A and Others has come as a welcome confirmation that despite the inclusion of the development risks defence, some of the reforms has been achieved. 

References

1. Jane Stapleton ‘Software, information and the concept of product’ (1989) 9 Tel Aviv U. Stud. L. 147 [2] Geraint Howells and Mark Mildred ‘Infected Blood: Defect and Discoverability - A First Exposition of the EC Product Liability Directive’ (2002) 65 Mod. L. Rev. 95 [3]A v National Blood Authority [2001] 3 All ER 289 [4]Tesco Stores Ltd v Pollard [2006] EWCA Civ 393; (2006) 103(17) L.S.G. 23 (CA (CivDiv)) [5] Consumer Protection Act 1987, s 3(2) [6] The Rt. Hon. Lord Griffiths ‘Developments in the law of product liability’ (1987) 12
2. Holdsworth L. Rev. 1, 13 [7] Simon Deakin, Angus Johnston, Basil Markesinis, Markesinis and Deakin’s – Tort Law (6th edition, Oxford University Press 2008) 739 [8]Commission v UK Case C-300/95, [1997] ECR I-2649; [1997] All ER (EC) 391 [9]Richardson v LRC Products Ltd [2000] Lloyd’s Rep Med 280 [10]Abouzaid v Mothercare (UK) Ltd [2001] All E.R. (D) 2436, CA [11]A v National Blood Authority [2001] 3 All ER 289 [12]Linda Spedding ‘New Product Liability and Safety Regime in the UK’ (1988) 16 Int’l Bus. Law [13]
3. Linda Spedding ‘New Product Liability and Safety Regime in the UK’ (1988) 16 Int’l Bus. Law [14] The Rt. Hon. Lord Griffiths ‘Developments in the law of product liability’ (1987) 12 Holdsworth L. Rev. 1, 13 [15]Commission v UK Case C-300/95, [1997] ECR I-2649; [1997] All ER (EC) 391 [16]A v National Blood Authority [2001] 3 All ER 289

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