Product Liability

Martin Ewen reviews product liability law in England and Wales and also whether there is a limit on the level of damages awarded in actions for wrongful death arising from defective products.

A building (or any other) product liability claim can be based on one or more of the following grounds: (i) negligence; (ii) the Consumer Protection Act 1987; (iii) the Fatal Accidents Act 1976; (iv) contract; and (v) criminal liability.

(i) Negligence

Since 1987 England and Wales have had strict liability legislation (the Consumer Protection Act 1987) to deal with claims by those who have suffered damage caused by a defective product. Under that legislation liability is dependent not upon fault, but upon mere defectiveness.

Claims brought on the basis of fault liability or liability in negligence are primarily concerned with the question of whether the defendant breached his duty of care by failing to act to an acceptable standard (otherwise known as acting with reasonable care), rather than whether the product was defective. In negligence, an injured party has a direct right of action against any person in the chain of supply who has breached his duty to the injured party.

The primary remedy for a claim in negligence will generally be damages for the losses sustained by the claimant.

An action under the Consumer Protection Act 1987, with its strict liability, is generally far more likely than a claim in negligence. The primary reason for this is because in negligence a claimant must prove that the manufacturer breached his duty of care, whereas under the Consumer Protection Act 1987 it is enough simply that the product is defective (strict liability).

(ii) Consumer Protection Act 1987

As touched on above, strict liability is a concept whereby a successful claim does not depend on proof of the existence of a contract or of fault, and liability accrues to any party responsible for a defect in a product which causes injury. Strict liability, however, is not the same as absolute liability; the burden of proof still lies with the consumer and there are several defences available to a strict liability claim.1

Strict liability in the European Union is based on the Product Liability Directive (85/374/EEC). Member states of the European Union have the option under the Product Liability Directive to fix a cap of ECU 70 million (70 million euros), for liability resulting from death or personal injury "caused by identical items with the same defect" (Article 16(1)). This option has not been exercised by the United Kingdom. There is no cap on damages that can be awarded in wrongful death actions in the United Kingdom under the Product Liability Directive, as implemented in the United Kingdom...