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    High Court Considers Meaning of "Defect" Under the Consumer Protection Act 1987

    Locke Lord Publications

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    The High Court has examined the meaning of a defective product under the strict liability regime in the Consumer Protection Act 1987.

    What’s the issue?
    Under the Consumer Protection Act 1987 (CPA), a product is defective when in all the circumstances it fails to meet the standard of safety that the public is generally entitled to expect at the time when it is introduced to the market. “Safety” in this regard is in the context of risk of damage to property as well as risk of death or personal injury. The court is entitled to consider a number of factors in respect of the question of consumer safety, including the purpose of the product, instructions for use and warnings, presentation of the product, expected use and time when it was put into circulation.

    The court maintains a flexible approach to the assessment of the appropriate level of safety including which circumstances are relevant and the weight to be given to each which will be dependent on the facts of any case. The level of safety that the public is entitled to expect is evaluated at the time when the product was first put on the market by the producer, but when determining whether the product met that level of safety, the court can consider everything now known about the product that is relevant, even if such information was not available at the time it was put on the market or has come to light subsequently. This is to give a claimant the opportunity to establish that a product whose lack of safety only becomes known in a period after it was first put on the market was, in fact, defective at the time of its initial circulation.

    What’s the development?
    In a significant decision for manufacturers, distributors, suppliers of goods and consumers, the High Court has provided welcome clarity on when a product will be considered to contain a “defect” under section 3 of the CPA. In a complex judgment running to over 170 pages, the court considers the interpretation and application of the CPA and particularly those factors to take into account when determining if a product is defective or fails to meet the safety standards generally expected.

    What does this mean for you?
    The decision is an important one for manufacturers, suppliers and distributors of consumer products as well as consumers themselves. The decision is not only helpful in its consideration of the meaning of a “defect” under the CPA, it also reviews the purpose of the legislation and relevant legal framework under the EU Directive on Product Liability.

    The decision provides product liability practitioners with a helpful reminder of the purpose and spirit of this legislation and the objective of setting a balance between the interests of producers and consumers. The balance is said to be struck by providing for no fault liability if a defective product causes damage subject to only a limited number of defined defences (such as the development risks defence).

    The CPA creates liability without fault and therefore the claimant need only prove that:

    • there was a defect in the product and
    • that the defect caused him to suffer damage.

    The question of whether the manufacturer was at fault is irrelevant and a manufacturer could be held liable for a defect even if it took all possible precautions to prevent it subject to the development risk defence. Fault or absence of fault has no bearing on the condition or state of the product that makes it fall below the standard of safety that the public is entitled to expect. Further, the court’s focus should be on whether the product is safe and not if it contains a specific fault.

    Following this decision, it seems clear that where a product has certain underlying risks attached to its normal use as part of the product’s normal behaviour, it will not be considered a defective product under the CPA unless that risk is an abnormal risk as compared to other similar products and the levels of safety expected by the public. For the product to be defective, there will need to be an abnormal risk and abnormal potential for harm (which takes the risk beyond the level of safety the public is entitled to expect from the product) which is not found in a comparable product. While this will vary depending on the product, the decision provides helpful guidance to manufacturers whose products may pose an unavoidable risk/potential for damage associated with its normal use but not abnormally which would make the product inherently unsafe.

    The court also reiterated the importance of conducting a risk/benefit analysis to the question of product safety – the safety risk may be one which the public would be expected to accept given the perceived benefits of the product and avoidable risks concept. Further, the decision is a helpful reminder of the way in which the court approaches strict liability for manufacturers under the CPA, focusing not on whether there is a failing in the product which makes it defective, but rather whether the product meets the safety standards expected by the public.

    For further advice or information please contact Jo Davis or a member of her team.

    Joanne Davis | +44 (0) 20 7861 9010 | jo.davis@lockelord.com

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