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] (PLD) into English law. Such a claim relies on the product being deemed “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 deemed 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 at the time of use and the defect caused the damage. It is not necessary for the claimant to prove how or when the defect arose (e.g. a claimant in a car crash caused by defective car brakes does not need to show how the brakes failed to work or what caused the failure of the brakes).

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 deemed to be ‘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. The court was asked to consider whether a known and inherent characteristic of a product (here, a 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 could 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). Provided a causal link exists between the defect and the damage, the potential award can be unlimited. Damages claimed under the CPA must be in excess of £250.

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 manufacturer; and/or
• an importer into the EU (note, upon Brexit, 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 can apply to the supplier/retailer if it does not identify the entities with primary liability within a reasonable period of being asked to do so by the claimant.

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 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. Note, this limitation period mirrors that of a strict liability claim.

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.

The ten-year longstop does not apply to negligence claims.

Liability for breach of contract may be excluded or limited by a term of the contract itself in contracts with consumers and between businesses, subject to the following exceptions:

• for contracts with consumers, the CRA sets out the scenarios where liability cannot be excluded, which includes liability for goods to be of satisfactory quality and liability for death or personal injury arising from negligence cannot be excluded;
• for contracts based on a supplier’s written standard terms of business or with a consumer, liability for breach of an express term of the contract can only be excluded to the extent that it is reasonable to do so.

Liability for breach of statutory implied terms as to correspondence with description, satisfactory quality and fitness for purpose cannot be excluded or restricted as against a consumer.

The CRA disallows the inclusion of those unfair terms covered by UCTA and the Unfair Terms in Consumer Contracts Regulations 1999. In addition, the CRA considers the implied terms in relation to the quality of goods and prevents attempts to exclude liability for breaches. Further, the CRA brought a test of ‘fairness’ into use, meaning that any term causing significant imbalance between the parties shall be ‘unfair’.

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

• owed the claimant a duty of care;
• 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. The former is considered to be more challenging for a claimant to pursue successfully. It is often 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 physical/mental condition.

The approach of the courts in such cases 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.

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.

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. In addition, the goods should be fit for the purpose they are supplied for; and
• 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 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 to be taken into account when assessing whether products meet an objective safety standard.

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. Ide v ATB was confirmed as providing guidance as to the proper interpretation and application of section 3 of the CPA.

In Ide v ATB, the Court of Appeal considered the meaning of defect in section 3 of the CPA. In this case, the claimant fell from his mountain bike causing him personal injury. The handlebar of the bike was found to be fractured and the issue was whether the fracture occurred because the handlebar was defective or whether it fractured in the accident. The Court of Appeal upheld the first instance decision and found that there may be a defect within the meaning of section 3 of the CPA, even though the precise mechanism by which the defect arose is not proven. Here, the handlebar was defective in that it failed following normal use and in circumstances where a non-defective.

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.

The courts in England are very experienced in handling complex product liability cases. The vast majority of civil cases tried in court are heard by a single judge, without a jury (libel and slander trials are the main exceptions), deciding them by finding facts and applying the relevant law.

It is rare, however, for product liability claims to proceed as far as the courts, with most settling in the pre-action stage, or prior to trial.

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.
• Group actions: 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, with the EU having proposed a new directive on representative actions for the protection of the ‘collective interests of consumers’, including product safety and liability laws, to provide an enhanced right to private action and a potential lowering of the threshold for litigation through representative actions against manufacturers.

There are different methods of funding that may be available to a party to civil litigation in England. The traditional private client retainer between client and solicitor is over.

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 still quite rare in the UK compared to the USA. The majority of such 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.

The impact of Brexit has been a key talking point in the UK across many legal areas, including product liability, but it is not yet clear how this will impact claims in the UK. Product liability and safety law is not expected to dramatically change if and when the UK leaves the EU but 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.

In planning for Brexit, the UK government has drafted a statutory instrument amending UK product liability and safety laws which has been put before Parliament for approval. The ‘Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019’ (the “SI”), if and when approved, aims 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 once the UK is no longer in the EU.

More broadly, rapidly developing technology is having an impact on product liability law. For example, as mentioned in the introductory chapter, the EU is currently considering whether to update the PLD. Key proposals include a change to the definition of “defective” product and whether it should remain incumbent on the claimant to show the link between damage and the defect of a product.