Christmas is nearly upon us.  For many, much of December passes by in a frenzy of Christmas shopping and frantic preparations for Christmas Day.  But how much thought do we give to the inherent safety of the products that we are buying (and receiving)? What if one of those products turns out to be unsafe and causes injury?  What are the legal principles governing a consumer’s ability to recover damages in these circumstances? 

At this time of year many consumers are purchasing more products than at any other time of the year.  It therefore seems apt to take a moment to reflect on some of the more recent personal injury cases involving alleged defective products.

The Consumer Protection Act 1987

The Consumer Protection Act 1987 (“the 1987 Act”) has been in force for nearly forty years.   This may perhaps be why there are relatively few recent appellate decisions concerning claims for personal injury brought under the 1987 Act, as many of the principles governing claims under the Act are well established.

The main significance of the 1987 Act is that it imposes strict liability.  Unlike with claims brought in negligence, there is no requirement for a Claimant to prove that the manufacturer of a product was at fault.  

Section 2 (1) of the 1987 provides:

“2. Liability for defective products.

(1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies [i.e. the producer, purported producer or importer of the product] shall be liable for the damage.”

Liability under the 1987 is therefore determined by defectiveness, not fault. 

Products is defined at section 1 (2) as meaning “any goods or electricity and… includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise.”

As the meaning of defect, section 3 of the 1987 Act provides:

“3 Meaning of “defect”.

(1)Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.”

Section 3(2) provides that in determining what persons generally are entitled to expect in relation to a product, all the circumstances shall be taken into account.  It then sets out a number of factors including the marketing, instructions and warnings displayed and the expected use of the product.

The burden of proof is on the consumer to establish a defect and that the defect caused their injury. 

There are defences available under section 4(1)(a), which the burden is on the Defendant to prove.

A three year limitation period applies in respect of personal injury claims brought under the 1987 Act.  Unlike with personal injury claims brought in negligence, there is a ten year longstop for bringing personal injury claims under the 1987 Act pursuant to section 11A(3) Limitation Act 1980 (“1980 Act”).  This time limit is absolute; the court does not have the discretion to extend time beyond this period (see section 33 (1A)(a) of the 1980 Act).

More Recent Decisions

In more recent cases, the real dispute between the parties appears to concern the issue of whether the product was defective for the purposes of section 2 (1) of the 1987 Act.

The Court of Appeal decision in Baker v KTM Sportmotorcyle UK Ltd & Anr [2017] EWCA Civ 378 involved a Claimant who was riding a motorbike manufactured by the Defendant when the front brake of the motorcycle seized, causing the Claimant to be thrown from the motorcycle and sustain severe injuries.

The Claimant alleged that his accident was caused by a defect in the motorcycle.

The Recorder at first instance found that the cause of the seizing of the brakes was galvanic corrosion, which had happened “as a result of a design defect combined with faulty construction or the use of inappropriate or faulty materials” [3].

The Defendant appealed arguing that there was insufficient evidence that the galvanic corrosion was caused by a defect in the motorcycle within the meaning of the 1987 Act.

In reaching its decision, the Court of Appeal reviewed its earlier decision in the case of Ide v ATB Sales Ltd and Another [2008] EWCA Civ 424.  This was a claim involving a Claimant who sustained injury after falling from his mountain bike.  The handlebar of the bike was found to be fractured and the issue was whether the fracture occurred because the handlebar was defective.

In Ide, at first instance, Gray J considered that it was not necessary for the court to determine the precise mechanism which led to handlebar fracturing but rather whether the evidence supported the conclusion that on the balance of probabilities, the handlebar was defective in a way which caused it to fracture.

On appeal, this approach was found to be permissible.  Thomas LJ observed that [7]:

“The application of this approach by a court considering the claim under the Consumer Protection Act 1997 in respect of a defective product can often be simpler. Under section 2 and 3 of the Act, if a person is injured by a product his claim succeeds if he establishes there is a defect in the product and that defect caused the loss, unless the defendant can rely on one of the statutory defences. In determining whether the loss or injury has been caused by a defect or by some other cause, although the process of reasoning may involve an explanation of how the defect was caused, the task of the court is simply to determine whether the loss was caused by the defect and not by another cause. As is apparent from the first of the appeals, that distinction is important and can make the task of the court a simpler one, as no doubt Parliament intended.”

In Ide, Gray J found that the bicycle had been readily maintained and there was no suggestion of misuse or damage.  On appeal the Court of Appeal considered that Gray J was entitled to infer that as the handlebar had failed in normal use for a bike of this type, it was defective within the meaning of the 1987 Act.

In Baker, the Court of Appeal observed that the Ide case illustrated that [26]:

“there may be a defect within the meaning of section 3 of the 1987 Act, even though the precise mechanism by which that defect arose is not proven.”

The Recorder in Baker found that the galvanic corrosion, which was the cause of the brakes seizing was the consequence of defects in the braking system and that the motorcycle was thus “not such as persons as generally are entitled to expect” and therefore defective within the 1987 Act. 

The Court of Appeal found that the Recorder was entitled to reach this conclusion, having found that the motorbike had limited and normal use, proper servicing, cleaning and maintenance and accordingly, the susceptibility for galvanic corrosion to develop in the braking system when it should not have done was a defect in design or the manufacturing process.  The Court found that there was no necessity for the Recorder to identify the precise nature of the defect.

By contrast, in the case of Love v Halfords Limited [2014] EWHC 1057 (QB), the High Court was tasked with the question of whether the fracture to the steerer tube in the mechanism of the Claimant’s bike was due to a defect in the bike or damage that had been caused to the bike prior to the accident.  The Court, having been unimpressed by both parties’ engineering experts, preferred the evidence of the jointly instructed fractographer and found on balance that the bike probably had been damaged prior to the accident and thus had not been defective at the date of supply.

In a more recent (highly fact sensitive) appellate decision in the Scottish case of Hastings v Finsbury Orthopaedics Ltd [2022] UKSC 19, which concerned the safety of a prosthetic used for hip replacements; the general proposition was accepted that a product could be regarded as defective if substantially less safe than other similar products on the market, but not otherwise (see paragraphs 29 and 64 of the Judgment).   

Conclusion

The issue of whether or not a particular product is defective appears to be the main battleground in more recent personal injury cases brought under the 1987 Act.  This is not surprising given that proof of a defect will in many cases be determinative of the liability dispute.  It is clear from the cases discussed that when it comes to the question of defectiveness, each case will turn on its own facts.  It is therefore difficult to discern from these cases any principles of wider application.  It therefore remains somewhat of a lottery as to whether in any given case, the evidence will be sufficient to prove the existence of a defect.

Perhaps a reason to pause for thought before snapping up some of those festive bargains…

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