United Kingdom: Product Liability

There are three principal legal bases: 

• a strict liability claim under the Consumer Protection Act 1987 (CPA) which enacted the EU Product Liability Directive [Directive 85/374/EEC] into English law. Such a claim relies on the product being “defective” and having caused personal injury to the claimant or damage to private property;  
• a claim under the tort of negligence. For such a claim to succeed, the product need not be defective, but it must be shown that the defendant owed, and breached, a duty of care to the claimant who suffered damage as a result of that breach; and  
• a breach of contract claim. A claimant would need to show that the seller of the product breached a relevant express or implied term of the contract of sale and that the breach caused loss, damage or injury.  

The CPA imposes strict liability for personal injury or damage to personal property caused by a defective product. The claimant must show that the relevant product was defective and the defect caused the damage.  

This basis of liability focuses on the nature and safety of the product itself rather than the actions of the entities in the supply chain, liability does not require proof of fault and very limited defences are available. 

A product is ‘defective’ if its safety is not as people generally are entitled to expect, taking into account factors such as instructions for use or warnings. 

In these types of claims the courts are often required to consider if and how the product is defective and this is not always a straightforward question. In 2018, the High Court considered a strict liability claim in Gee & Others v DePuy International Limited [2018] EWHC 1208 (QB). The court was asked to consider whether a known and inherent characteristic of a product (here, hip prostheses) could in and of itself be a defect. The defendants successfully argued that a known consequence of the ordinary use of the product would not amount to a defect. 

Damages for this type of claim are compensatory only i.e. not punitive (see question 8 below for further details). Damages may be claimed for personal injury or for damage to personal property in excess of £275. 

For strict liability claims, primary liability lies jointly and severally on: 

• the producer (effectively the manufacturer); and/or  
• any “own brander” who, by placing its trademark/branding on the product holds itself out as the producer; and/or  
• an importer into the EU (note, upon the end of the Brexit transition period (currently, 31 December 2020), this will change to the importer into the UK). 

This means the claimant can choose to bring an action against one or more of these entities. 

Secondary liability for strict liability claims can apply to the supplier/retailer if it does not identify the entities with primary liability or the person who supplied the product to it within a reasonable period of being asked to do so by the claimant. 

The following limited defences are available under section 4 of the CPA: 

• The defect is the result of complying with a requirement of UK or EU law.  
• The defendant did not at any time supply the product to another person.  
• The supply by the defendant was not in the course of a business.  
• The defect did not exist in the product at the time of supply. 
• The state of scientific knowledge at the time when the product was put into circulation was not such that a producer of products of the same description could be expected to discover the defect in its products. 
• In relation to component products, the defect was in the final product and was wholly attributable to the design of the final product or compliance with instructions given by the producer of the final product. If the component producer was involved in the design decisions or the component product was partly a cause of the final product being defective, then this defence cannot be used. 

For strict liability claims under the CPA, a claimant must bring the claim within three years of the date on which he/she became aware (or should reasonably have become aware) of the damage, the defect and the identity of the producer (section 11A(4), Limitation Act 1980 (Limitation Act)). A ten-year longstop date applies, which runs from the date the product was put into circulation.  

It is not possible to use a contractual term to exclude or limit strict liability under the CPA.  

The claimant must prove (on a balance of probabilities) that: 

• the defendant owed the claimant a duty of care;  
• the defendant breached this duty;  
• the breach caused the damage in question; and  
• the damage could be reasonably foreseen. 

A negligence claim focuses on the behaviour of the defendant, whereas a claim for strict liability under the CPA focuses primarily on the nature of the product and the alleged defect. A negligence claim is considered to be more challenging for a claimant to pursue successfully than a CPA claim. A negligence claim often involves a question of fact and degree around the actions taken by the defendant and whether this constituted a breach of the duty of care. 

Claimants will, however, often bring both a negligence claim and a CPA claim, largely because a negligence claim may potentially be brought against a wider category of defendants than those set out in the CPA, the ten-year longstop does not apply to negligence claims and disclosure of wider categories of documents may be available. 

The law aims to put the victim of negligence in the position he/she would have been in had the negligence not occurred. Damages are available to compensate the claimant for losses that were a direct and reasonably foreseeable consequence of the injury. As a general rule, in the sphere of product liability, no claim can be made for negligence causing pure economic loss, that is, financial loss that does not arise from physical injury or damage to property. 

Broadly speaking, an injured consumer may be entitled to damages under any/all of the following categories: 

• special damages, awarded in respect of the actual losses suffered by the claimant, such as loss of earnings, damage to property etc.;  
• general damages, often awarded in personal injury cases for pain, suffering and loss of amenity; and  
• provisional damages, for which a claimant will be eligible if it is shown that there is a chance that at some definite or indefinite time in the future he/she may, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his/her physical/mental condition. 

The approach of the courts in relation to provisional damages is: (a) to award immediate damages assessed on the usual compensatory basis (see above), assuming that the injured person will not develop the disease or suffer the deterioration in his/her condition; and (b) to award the claimant entitlement to further damages at a future date if the claimant develops the disease or suffers the deterioration. 

For negligence claims, liability can be joint and several i.e. split across multiple tortfeasors. The claimant may enforce the relevant obligation, in full, against any one or more of the jointly liable parties. That defendant can then try to claim a proportion of the damages paid to the claimant from the other defendant by way of contribution proceedings. 

For negligence claims, common law defences are challenging to run but commonly include: 

• contributory negligence, where the claimant’s own negligence contributed towards his/her loss, leading to a reduction in the amount of compensation he/she is awarded;  
• voluntary assumption of the risk by the claimant, where the claimant knew the risks of the product but chose to accept them. 

A claim in negligence must be brought within six years of the cause of action accruing, that is, when actual loss is suffered. 

In negligence claims for damages for personal injury, the time limit is three years from the date of the injury or the time when the claimant knew, or reasonably ought to have known, he/she had a cause of action. The date of knowledge is taken to be the date on which the claimant first had knowledge that: 

• the injury was significant;  
• the damage was wholly or partially attributable to the facts and circumstances alleged to constitute negligence; and  
• the identity of the defendant. 

Liability for death or personal injury resulting from negligence cannot be excluded or limited by contract.  

Yes. The Consumer Rights Act 2015 (CRA) implies the following terms into contracts for the sale of goods with consumers: 

• goods must be of satisfactory quality (which is wider than “defective” under the CPA);  
• if a buyer makes known to the seller a particular purpose for buying the goods, the goods must be fit for that particular purpose; 
• goods must correspond with any description or sample. 

The CRA sets out factors that are relevant in determining the quality of goods. These include safety, fitness for all the purposes for which goods of that kind are usually supplied, appearance and finish, freedom from minor defects, and durability. 

A similar regime is applicable in contracts between two businesses, under the Sale of Goods Act 1979. 

Terms may also be implied into a contract by common law. For example, specialist suppliers of particular products will be subject to an implied term that they will advise purchasers of problems which are or reasonably ought to be known about the product. 

Contractual damages put the claimant in the position that he/she would have been in had the contract been performed correctly. 

Remedies vary depending on the category of contractual term breached. 

The claim for damages must be brought within six years of the breach of contract. 

As mentioned above, strict liability for death, personal injury or damage to private property under the CPA cannot be excluded or limited by contract. Liability for death or personal injury arising from negligence also cannot be excluded or limited by contract. 

Liability for breach of contract can potentially be excluded or limited by a term of a contract, subject to some exceptions. 

For example, in contracts with consumers: 

• the CRA sets out scenarios where liability cannot be excluded or restricted,  such as  the requirement for goods to be of satisfactory quality;  
• unfair terms in consumer contracts are not binding on consumers. 

In business to business contracts, liability for certain implied terms (such as implied terms relating to correspondence to description or sample, being of satisfactory quality or fitness for purpose) cannot be excluded or limited by a contractual term unless that term satisfies the requirements of reasonableness.  

As noted above, probably the most important recent case is that of Gee & Others v DePuy International Limited [2018] EWHC 1208 (QB), a case involving metal hip implants. The Judge found that the defendant’s product was not defective under the CPA. The correct test to be applied was whether the product had an abnormal tendency to result in damage or harm, as compared with appropriate comparator products. The case also confirms that factors such as how easy it would have been to avoid the defect, the cost of precautionary measures and the benefit of the product more generally are factors which may be taken into account when assessing whether products meet an objective safety standard. In broad terms, the court in DePuy confirmed that a holistic approach to the assessment of defect should be taken.  A holistic approach to assessing defect was endorsed by the Court of Appeal in Bailey and others v GlaxoSmithKline [2019] EWCA Civ 1924.  

In Baker v KTM Sportmotorcycle UK Ltd [2017] EWCA Civ 378, the court held that the claimant did not have to plead and prove a specific design or manufacturing defect for there to be a defect within the meaning of the CPA in relation to the failing of a motorcycle’s brakes, leading to an accident and serious injuries. The claimant must, however, prove that the defect was present and caused the injury. It followed the decision in Ide v ATB Sales Ltd [2008] EWCA Civ 424 that it is not necessary to show how a defect was caused; it is sufficient to find that there is a defect.  

Finally, the recent case of Wilson v Beko [2019] EWHC 3362 (QB) provides a helpful confirmation that the limitation period for strict liability claims under Part 1 of the CPA for personal injury or damage to property cannot be circumvented by basing a claim on section 41(1) of the CPA.  

The claimants in that case were time barred from bringing a strict liability claim under Part 1 of the CPA, following a house fire caused by a fridge-freezer, as the 10 year long stop date had expired. The claimants argued that, pursuant to section 41(1) of the CPA, the defendant owed a duty under safety regulations (i.e. Electrical Equipment (Safety) Regulations 1994). The claimants alleged that the defendant had breached that duty and should pay damages. 

The Court held that, but for the expiry of the limitation period, the claimants would have had a claim for personal injury and damage to private property under Part 1 of the CPA. To allow a claim for breach of duty to proceed via section 41(1) would permit a claim for damage caused by a defective product to be made outside the 10 year longstop date for such claims and would deprive the defendant of the defences in the CPA. The Court held that breaches of obligations imposed by safety regulations are not actionable under section 41(1) of the CPA if and to the extent that the breach of duty would fall within Part 1 of the CPA as relating to a defective product that caused actionable damage.  

Deciding how best to defend a (potential) product liability claim will always depend on the facts of the particular case. 

The following steps are intended to be a broad checklist for a defendant facing a potential product liability claim: 

• Check the limitation period applicable to the claim, given that different causes of action have differing limitation periods.  
• Check the defendant has been correctly identified. A claimant may seek answers from the retailer/distributor when it is actually the manufacturer which has the primary liability for the damage caused. Additionally, if there is a group structure, a defendant should check the claim is against the correct entity.  
• Notify other entities in the supply chain which may face liability as a result of the claim.  
• Check the initial evidence. It is important to check that the claimant has provided evidence of damage caused.  
• Check your insurance policies to confirm whether there is a policy to cover this claim and if there is, make the required notification. Insurers usually require notification at an early stage.  
• Consider the requirements of the civil litigation pre-action protocol which must be followed before a claim in the English Courts can be formalised. There are specific rules for claims of personal injury.  

Most product liability claims in England settle in the pre-action stage or prior to trial. However, the courts in England are  experienced in handling complex product liability cases which proceed to trial.  

The vast majority of civil cases tried in court are heard by a single judge, without a jury, deciding them by finding facts and applying the relevant law. 

There exist certain procedures available in England and Wales to group multiple claims together. 

GLO: Claimants may seek a ‘group litigation order’ (GLO) which is a case management tool enabling multiple claims involving common or related issues of fact or law to be managed together. Each claimant must, however, initiate proceedings separately by issuing its own individual claim form.  

Representative claim: One singular representative action can also be brought by or against one or more persons who have the same interest in the claim as the representatives of any other persons who have that interest, as opposed to joining all affected members. Unless the court orders otherwise, the judgment is binding on all those represented in the claim. Such a procedure is similar to the US class action model but these claims are rare in the UK as the courts have typically taken a restrictive approach to the meaning of “same interest”. 

The availability of collective redress for consumer claims is a current hot topic in the EU and UK. As explained in more detail in the introduction to this guide, the European Parliament, Council and Commission are considering a draft directive on collective redress, which could expand the scope for class actions by consumer groups across the EU.  

It is not clear whether the proposed EU collective redress directive will be finalised and come into force before the end of the Brexit transition period (currently 31 December 2020), particularly given the COVID-19 crisis.  We may find that UK rules on collective redress are not updated to align with the proposed EU collective redress directive. 

There are different methods of funding that may be available to a party to civil litigation in England.  

The following assist in granting wider access to claimants wishing to pursue a claim: 

• damage based agreements (where the lawyer takes a percentage of the damages awarded);  
• conditional fee arrangements (where the solicitor’s fee is contingent upon the outcome);  
• third party funding. This is increasingly common in product liability claims and involves a commercial funder agreeing to pay some or all of the claimant’s legal fees and expenses with a view to sharing awards given to successful claimants (whether by judgment or settlement). 

Legal aid is no longer available to claimants for pursuit of product liability claims arising out of negligence or breach of duty. 

Product liability claims are less frequent in the UK than the USA, which is a very litigious jurisdiction. In the UK the majority of product liability claims are still brought individually, which manufacturers/distributors will have to defend on a case-by-case basis. 

The damages available to claimants are generally not high and very few cases make it to trial, with most settling out of court, often due to the expense of progressing a formal claim and the likelihood that a claimant’s unrecoverable litigation costs will far exceed the damages sought. The fact that defendants are usually well resourced and able to take cases to trial is also a contributing factor to the low numbers of such claims. 

Brexit 

The impact of Brexit has been a key talking point in the UK across many legal areas, including product liability. At the time of writing, the Brexit transition period is due to expire on 31 December 2020. During the transition period, existing EU legislation will continue to apply. In addition, most EU law applicable in the UK as at the expiry of the transition date will remain in effect within the UK indefinitely (but on a different basis, as “retained EU law”) unless and until it is repealed or amended.   

The Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 are expected to apply from the end of the Brexit transition period (currently 31 December 2020). Those Regulations aim to ensure that current EU requirements relating to product liability and safety, as implemented into UK law, are amended in a manner which will apply to products on the market in the UK after the end of the transition period. 

The UK government previously made clear statements that the Brexit transition period would not be extended beyond 31 December 2020. However, it is not clear whether the UK government’s position on this may change given the impact of COVID-19, which is requiring the UK and other governments around the world to focus on addressing the global pandemic as a top priority. 

In any event, product liability and safety law is not expected to dramatically change following Brexit. However, since much of the UK’s law in this area comes from the EU, and the EU is continuously updating its laws, inevitably there will be scope for differences in the future. 

Connected products / emerging technology 

More broadly, rapidly developing technology is having an impact on product liability law. For example, as mentioned in the introductory chapter, the European Commission is currently considering whether to update the Product Liability Directive.  

Even if the Brexit transition period ends before any amendments are made to the Product Liability Directive, which seems likely, the UK will still need to grapple with whether and how (decades old) UK product liability laws should change to address challenges posed by connected products and emerging technologies. For example, at present, there is a lack of clarity about the extent to which strict liability claims under the CPA can be made in relation to software. Please see the introduction section of this guide for more information about the challenges posed by connected products and emerging technologies.   

Interesting developments relating to Brexit, collective redress and emerging technologies are outlined above and/or in the introduction to this guide.