New Liabilities Under The Consumer Protection Act 1987 - Essay Example

New Liabilities Under The Consumer Protection Act 1987 Yusuf Belgore The consumer protection act, 1987 was made in the interest of the consumer toprotect him from injury that can arise from the consumption/use of defective goods. Part 1 of the act implements into the UK law the provisions of the Product Liability Directive (85/374/EEC)1 and it came into force on May 1, 1988. The law also excluded game and agric produce (sold in its raw state. Directive 1999/34/EC amended the 1985 product liability directive removing this exception with effect from December 4, 2000).2 Before the enactment of the consumer protection act of 1987, those injured had to prove negligence of a manufacturer to sue successfully for any damage. The act now removes this bottleneck and a customer can already sue a supplier without proof of negligence, under sale of produce law. This law applies equal right to anyone injured by the defective product whether or not the good was sold to them3. The major crux, of the consumer protection act, 1987, as we have seen so far is that it seeks to protect the consumer from unwholesome practice of producers. Part 1 of this act allows people injured by defective product to sue for compensation without having to prove that the producer was negligent. All that has to be proved is that the product was defective and the defect in the produce caused injury. The law applies to all consumer products and products used at place of work. This law makes taking litigation against producers of defective goods and in fact getting redress easy for the consumer. It also opens up lapses so that manufacturers of genuinely not defective goods get sued and may end up paying compensation. What this does is to allow for a larger influx of cases into the courts (over 1500 cases were in courts last year alone with 1000 successful prosecutions4). There are cases of adverse reaction to goods that are hitherto not defective for which an injured person may sue and in fact, get compensation for such cases. This is so because the act is very strict about liabilities. Thus the having contractual terms with the consumer does not exempt a producer from being sued. The law also defined the terms; defect and liability: 1. A defective product is one which the safety of the product is not such as persons generally are entitled to expect. This definition is general and does not make reference to a particular product. A product will thus not be termed defective simply because there is a safer version of it subsequently put in the market or because it is of poor quality. 2. Injured people have a right to sue for damages; Product liability is the term used to define laws affecting those rights. A person under those acts can sue for: 1. Death: It does not have to be the person himself that will make those claims. His relative friend or representative of his estate can make claims on behalf of the injured person and seeks compensation paid to his family, or next of kin. 2. Personal injury: this claim can be made in respect to injury suffered from use or consumption of a defective product. It does not have to be the person that purchased the product alone that can lay claims to injury. The act is here described as strict. A case worth mentioning here is Abouzaid v. Mothercare (UK) Ltd.5 This particular provision puts additional liability on the producer. 3. Private property: This can be sued for so long as the property is £275 or more. Liability in the provisions of this act in accordance to section 2, subsection 2 is borne by the following: 1. Producer of the product: Usually the manufacturer or, in the case of raw materials, the person who mined or otherwise obtained them. Also included are processors (for example corn canners), but those involved solely in packaging are not affected unless the packaging alters the essential characteristics of the products. 2. Importers: Meaning importers into the European Community, not just into the United Kingdom. Where goods are imported into another EC country and subsequently sold in the United Kingdom, liability rests with the first importer, not the United Kingdom importer. 3. Own-Branders: suppliers who put their own name on the product and give the impression that they are the producers. Other suppliers, such as wholesalers and retailers, are not liable unless they fail to identify the producer, importer or “own-brander” if asked to do so by a person suffering damage. 7 Liability under the Act is joint and several, so the plaintiff may sue both (or all, if more than two) defendants. It is not possible to exclude liability under the Act by means of any contract term or other provisions. This provision of the act was shown in the Abouzaid v. Mothercare case. Products that are covered by liability by the provision of this act include all consumer goods and goods used at the place of work. Buildings are not included although individual goods from which they are produced (e.g. bricks and woods) are included. Liability under the Act extends to components and raw materials. If a finished product contains a defect in a particular component, both the manufacturer of the finished product and the component manufacturer may be liable. 11 The Act is not intended to extend to pure information. Printed matter is not therefore covered, except in the case of instructions or warnings for a product (in which case the producer of the product - not the printer - will be liable for errors or omissions in the instructions or warnings which make the product unsafe). Similarly, a design consultant will not be liable under the Act for a mistake in a design which causes a product to be defective; the producer of the product itself will be liable. Similar considerations are relevant to software. Computer software is often supplied as an intrinsic part of a product and in some cases can cause personal injury (for example airline navigation systems or production line robots). Again, liability in such cases is imposed on the producer of the product. A producer or importer can avoid liability if he can prove any of six defences: 1. He did not supply the product (e.g. it was stolen or is a counterfeit copy of his products); 2. The state of scientific and technical knowledge at the time he supplied the product was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control (the so-called “development risks defence”); 3. The defect was caused by complying with the law. Compliance with a regulation will not necessarily discharge a producer from liability; in order to claim the defence he would have to show that the defect was the inevitable result of compliance; 4. The defect was not in the product at the time it was supplied (e.g. if a product becomes defective because a retailer handles it carelessly); 5. The product was not supplied in the course of a business, for example, the donation of homemade toys for sale at the occasional church bazaar or sales by private individuals of second-hand goods; 6. The producer of a component will not be liable if he is able to show that the defect was due either to the design of the finished product, or to defective specifications given to the component manufacturer by the producer of the finished product. The extent of the defendant’s liability could be affected by any contributory negligence on the part of the plaintiff, e.g. if he contributed to his injuries by his own carelessness. Defences have, due to scientific and documentary evidences, been growing. The case between XYZ & OTHERS v. (1) SCHERING HEALTH CARE LIMITED; (2) ORGANON LABORATORIES LIMITED (3) JOHN WYETH & BROTHER LIMITED 6 It is expected that anyone making a claim must begin his court action within three years of the date he was injured by the defective product or, if later, the date when they knew they had a claim against the defendant. However, an injured person cannot sue under this part of the Act if ten years have elapsed since the defective product was supplied by the producer. 21 Anyone considering making a claim under this legislation should seek legal advice at an early stage. From the Abouzaid case, a manufacturer or supplier may be liable under strict liability even if the risk could not have been recognised at the time of supply, and development risk defence will be available only where there has been some scientific or technical advance since the time of supply, which enabled the defect to be identified. Consumer expectations of safety are the key to defining a defect under the Consumer Protection Act. How these expectations may change over time is an unresolved problem under the act. Also, it is not the consumers actual expectations of safety that is important under the act but what consumers are entitled to expect. Grey areas will still cause problems until more cases have been through the courts. For example, in Richardson v. LRC Products it was held by the High Court last year that, in the case of a condom which ruptured in use, the product was not defective because the public was not entitled to expect that any method of contraception intended to defeat nature will be 100% effective. However, cases of this nature will always be argued in courts. New liability created by part 1 of this act is that an injured per son does not have to prove negligence on the part of the producer. All he has to prove is that he was injured and the injury was sustained from the consumption of a defective good. This liability causes the producer to be extra careful in the production of his produce. It also ensures greater safety of consumer and consumer goods. But of course un avoidable accidents and mistakes from the consumer can lead to in jury which can also be sued for under the strictness of the act. This is seen from, again the Abouzaid case.7Where the Court of Appeal upheld the judgement of a lower court to asking mother care to pay compensation to the claimant for the injury he suffered from an accident with a Cosytoes sleeping bag purchased by his mother. The Csosytoes sleeping bag was designed to be attached to a childs pushchair with elastic straps. The claimant, who was aged 12 at the time, helped his mother attach the product to his younger brothers pushchair. One of the elastic straps slipped and lashed back. The buckle attached to the elastic strap hit him in the eye causing serious, permanent damage. The claimant sued Mothercare, the supplier of the product, claiming damages in negligence and also under the Consumer Protection Act. Mothercare conceded that it was the producer of the product within the meaning of Part 1 of the act. In its defence, Mothercare argued that: 1. The product was not defective when the product was supplied because there had been no previous instances of this type of injury and, in 1990, consumers could not reasonably have expected the product to be designed differently so as to avoid the risk of this type of injury. 2. Even if the product were defective, the respondent was entitled to use the "development risks" defence in Section 4 (1) (e) of the act. This section provides that a producer will not be responsible for a defect in a product if the state of scientific and technical knowledge at the relevant time was not such that a producer might be expected to have discovered the defect. 3. For the same reasons it did not act negligently in 1990 by supplying the product in that form, and 4. The claimant acted carelessly in trying to attach the product and was therefore partly responsible for his own injury.8 Tthe trial judge found that Mothercare was liable for the claimants injuries and rejected the claim of contributory negligence on the part of the claimant. However the trial judge did not make clear whether his ruling was based on common law negligence or on strict liability under the Consumer Protection Act or both. Mothercare appealed. A consulting engineer, retained as an expert witness by the parties, concluded that in 1990 no manufacturer of childcare products could reasonably have recognised the potential risk of this type of accident because at that time even experts in the safety of childcare products had not recognised the problem. He further concluded that he would advise a manufacturer today that such a product would have a safety defect unless the potential risk of injuries was eliminated by design or consumers were warned of the possible risks and how to avoid them. Such warnings would need to be included in instructions for fitting the Cosytoes that avoided the difficulties experienced by the claimant and his mother. The Court of Appeal rejected Mothercares appeal finding that, whilst Mothercare had not been negligent, the product was defective for the purposes of Part 1 of the Consumer Protection Act. The Court of Appeal also ruled that the respondent was not entitled to the benefit of the development risks defence. The reasoning behind this finding is important. Aforementioned case shows a new kind of liability. Negligence could not be proved against Mothercare. Injury and evidence that injury was caused by a defective product that is aall that was required to make Mothercare pay compensation for that injury suffered by the calaimant. This brings about a situation where anyone with an injury from consumption of goods to come to court to seek redress. With evidence of injury and that the injury was caused by consumption of a particular good. References 1. http://www.tradeangles.fsbusiness.co.uk/articles/product_liability.htm 2. Guide to Consumer Protection Act 1987, Consumer Affairs Directorate, Department of Trade and Industry, 2001 3. The Consumer Protection Act, 1987 4. The sale of goods, PS Atiyah, JN Adams, HL MacQueen - 2001 - Harlow: Longman 5. LIMITATION OF ACTIONS: Item 2 of the Seventh Programme of Law Reform- Ordered by The House of Commons to be printed 9 July 2001 6. http://www.hmcourts-service.gov.uk/cms/150_552.htm 7. http://www.publishers.org.uk/paweb/paweb.nsf/0/4A696E83567B584580256AD80057F557?OpenDocument&Search= 8. http://www.lawreports.co.uk/WLRD/CourtIndex/subjectmatter.htm 9. http://www.lawteacher.net/TortPages/Tort04.htm 10. http://europa.eu.int/comm/enterprise/regulation/goods/liability_en.htm Read More