Supply of Defective Product: Liability Under Consumer Protection Act 1987

Introduction

Part II of the Consumer Protection Act 1987 (CPA) prescribes strict liability on the manufacturers for defective products. The Act was enacted mainly to execute a European Directive (85/374/EEC). Hence, when making advice on questions under the Act, one has to refer to both the UK Act and the Directive. Any person who has suffered due to the supply of a defective product can apply for a remedy under the Act. This research essay analyses how the Consumer Protection Act 1987 safeguards the interest of UK consumers from the supply of defective products.

Analysis

According to s.1 (2) of the Consumer Protection Act 1987, the product includes both goods and electricity.

Where an element or a raw material used in the manufacture of the final product is defective, both element and finished product shall fall under “product” under the Act.

As per s 3 of the Act, a product will be considered to be defective if its safety is not such as individuals generally are warranted to expect. As in the case of safety, both damage and injury to property can be claimed. Under s 3(2), the Act requires the court to look into the list of factors in evaluating product safety.

The Act offers the analogous privileges to any individual who was injured by defective goods whether or not the product was sold to them or not. Under this Act, any individual can sue for damage caused to their private property. If a plaintiff wishes to establish his claim under civil liability, he must demonstrate that the balance of probabilities, the fault in the product made the harm, damage or injury. Under the Act, for claiming any criminal liability, it has to be demonstrated beyond reasonable doubt.

Under the Act, the plaintiff need not have to demonstrate carelessness on anyone’s part. A defective product is one where the safety of the product is not such as individuals are normally entitled to anticipate. This explanation offers an objective test of defectiveness and submits neither to the injury caused by the product nor to the specific product. When concluding whether a product is faulty or not , a court will take into account all particular scenarios including the style in which a product is being sold, any warning or instruction that is being given with it and what might be rationally expected to be carried over with it. (Pook: p. 80).

As far as cases decided as on date under the Act, the court seems to espouse a “common sense test” of what the general public is at liberty to anticipate.

In A v National Blood Authority1, it was declared that blood which contained Hepatitis C virus and transfused to a patient was not as safe as individuals normally are at liberty to expect and hence defendant was liable to patients for having supplied such contaminated blood who had contracted Hepatitis C.

In Abouzaid v. Mothercare (UK) Ltd2, the Court of Appeal held that though Mothercare, the product supplier was not negligent, the claimant was authorized to claim damages under Part I of the Consumer Protection Act for the damages sustained by his younger brother in his eye due to supply of defective product.

Under s 5 of the Act, damages can be claimed for personal injury or death or damage to private property. However, the claimant should substantiate that losses were caused due to the defect in the product supplied. If any damage to property is less than £ 275, no damage can be claimed under the Act. S 4 enumerates some defenses available to the defendant under the Act. A claimant cannot claim any damages if the defect did not present at the time when goods were put into the circulation.

Under s7 of the Act, liability under the Act cannot be restricted or excluded by any contract condition or notice. However, a condition demanding a third party to indemnify the manufacturer against any liability may be effective. (Bradgate & White: p. 166).

Lexus Financial Services T/A Toyota Financial Services (UK) Plc Sandra Russell describes the approach a judge is authorized to avail the determination of evidence of causation where substitute mechanism of causation is placed before the court. Mrs. Russell’s Lexus vehicle was destroyed in a fire that erupted in her carriage. Under the hire purchase agreement, Toyota, the manufacturer demanded her to pay the balance money due on her Lexus under a hire purchase agreement. However, Mrs. Russell argued that the defect that existed in the Lexus had caused the fire and hence, she refused to pay the balance money under hire purchase agreement and also claimed damages under the Consumer Protection Act. The main issue was whether Mrs. Russell can demonstrate on a balance of probabilities that fire had occurred due to a defect that existed in the Lexus.

Judge Harris J held that the fire had been caused due to a defect in the Lexus electrics on the basis of balance of probabilities. On Appeal, Toyota argued that this was a Popi M case where a judge had employed a proscribed line of reasoning to arrive at his verdict. It was held by the Court of Appeals that the verdict of Harris J could not be blamed as it was corroborated by eyewitness narrations and the evidence of damages by fire. Hence, the Court of Appeals dismissed the appeal by Toyota and held that Toyota was to pay damages for the defective product under Consumer Protection Act 1987. (Cooper, 2008).

In Ide v. ATB Sales Ltd3, Claimant purchased an imported bike from the defendant and suffered serious head injuries while riding the bike. The claimant argued that the left-hand bar of the bike was defective and it caused the accident. The defendant, the importer however argued the accident happened as Mr. Ide lost his control while riding his bike and hence, the accident was due to his negligence and human error. Judge Gray J of the lower court was convinced that there was an inherent defect in the bike under s 3(1) of the Act and as a matter of probability, it was that fault that created the handlebar to fracture.

In the Appeal, the importer argued that case fell under Popi M case. The defendant argued that Gray J was not on the chief findings of the truth that he advanced and was able to reason out that Claimant had discharged the burden of establishing that there was a fault in the bike that had resulted in accident. The defendant argued that though Gray J had declined to accept his theory, he had established that fatigue crack was only a possible reason and not a probable reason. Hence, it was improper for the judge to have decided the case on the reason that Mr. Ide had established that there was a fault in the handlebar of the bike which had created the injury.

The defendant argued that Gray J had employed a progression of analysis which was viewed as inadmissible by the House of Lords in Rhesa Shipping Co SA v. Edmunds (The Popi M)4. In the Popi case, there is a series of implausible reasons, a judge is not allowed to hold that the least unconvincing is the likely reason for the event. Alternatively, the judge can conclude the case on the footing that a claimant has not on the equilibrium of possibilities established in his case.

The Court of Appeal dismissed the appeal filed by the importer that the case was not a Popy M case and Gray J did not employ a proscribed form of reasoning. Court of Appeal was of the view that this case dealt with two competing arguments before the judge. The first argument was that whether there existed a fault in the handlebar due to manufacturing or fatigue. The second one was whether the fracture was due to Mr.Ide’s fall or not. The Court of Appeal was of the view that applying Dr. Morgan’s s principle for the cause of the fault was not inappropriate and offered a convincing explanation and hence, it was the most likely reason for the defect. Finally, the importer was asked to pay damages to the claimant due to the inherent defect that existed in the bike under CPA 1987. (Cooper, 2008).

For the midwife profession, the Consumer Protection Act 1987 is significant as it ensures that midwife has to keep record of the name of the supplier of the product both drugs and equipment which the midwife offers to the patient. If the midwife is not able to give out the name and address of the supplier, then under CPA, the hospital or employer will be held responsible for any injuries sustained by a claimant. Hence, a midwife or hospital has to defend a legal action asserting that there was no fault in the product which caused the injury. As already stated, injury includes both personal injury and death. There are very few instances of actions being initiated under the Consumer Protection Act 1987 especially in healthcare-related litigations. In March 1993, the manufacturers of a pair of surgical scissors that broke during a surgical operation on knee were asked to compensate one Simon Garratt with £ 1400 as compensation for the injury sustained by him due to faulty product under CPA. For removing the blade that was embedded on his knee, a second operation was to be carried. Had Simon relied on the law of negligence to award compensation for his injury, he would rather have had to demonstrate that manufacturers were in infringement of the obligation of care which they owed to him. However, under the Consumer Protection Act 1987, Simon had to demonstrate the injury, the fault and the truth that the equipment was manufactured by the defendant. (Diamond and Phillips 2006: p. 385).

A construction contractor who builds a building under a contract and who does not own the land on which he constructs, may be held accountable as “producer or supplier” under the Act as regards to faulty products produced or supplied by him and fitted into the building whether by way of repair, construction or alteration and will be held accountable as constructor of the defective building itself or of its permanent fittings like foundations.

However, in the case of a speculative builder, who constructs on his piece of land and then makes the supply of that building by establishing or disposal of an interest in land, the Act seems to leave him accountable as producer of the faulty building while exonerating him from any responsibility as supplier or any defective product fitted within the building. (Speaight and Stone, 2004: p. 331).

However, Loveday v Renton case (Whooping Cough Vaccine Test Case) is the best illustration of how the Courts struggle with the issues relating to defective products. A trial was held mainly to solve the initial issue of general causation, namely whether the whooping cough vaccine could create a permanent damage to the brain. Court heard the opinions of about nineteen experts traversing from the department of pediatrics, epidemiology, neurology, medical statistics, microbiology and neuropharmacology and reviewed the available literature on the subject, the judge finally came to conclusion mainly based on the balance of probabilities, that there was no strong proof that the said vaccine was competent enough to cause damage to the brain. (O’Grady, Dobbs-Smith, and Walsh: p. 150).

Conclusion

Both Lexus v. Russell and Ide v. ATB offer an interesting remark on the acceptable form of concluding a judge is enabled to take in cases involving not common but unclear clarifications of how an incident occurred. Thus, Consumer Protection Act 1987 is really helping the consumers in the UK to safeguard their interest against the supply of faulty or defective products.

List of References

  1. Bradgate Robert and White Fidelma. (2007). Commercial Law. Oxford: Oxford University Press.
  2. Cooper Davies Arnold. (2008) Importer’s Appeal Crashes in Court. [Online]
  3. Diamond Bridge & Phillips Robyn (FRW). (2006). Legal aspects of midwifery. London: Elsevier Health Services.
  4. O’Grady John, Dobbs-Smith Ian & Walsh Nigel. (1999). Medicines, Medical Devices and the Law. Cambridge: Cambridge University Press.
  5. Pook L.P. (2007). Metal Fatigue. London: Springer
  6. Speight Anthony and Stone Gregory. (2004). Architect’s legal handbook. London: Architectural Press

Footnotes

  1. [2001] 3 AII ER 289
  2. [2000] AII ER (D) 2436
  3. [2008] EWCA Civ 424
  4. [1985] 1 WLR 948 HL