Product liability - Definitions of 'defect' and 'product'

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Overview

Familiarity with the definitions of 'defect' and 'product' is essential for success in product liability law for the SQE1 FLK1 exam. These concepts form the basis of liability under the Consumer Protection Act 1987 (CPA 1987) and common law negligence. This article examines these definitions, their legal interpretations, and practical applications to help candidates handle complex product liability scenarios.

Defining 'Product' in Product Liability Law

Statutory Definition under CPA 1987

Section 1(2) of the CPA 1987 outlines a broad definition of 'product':

"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."

This includes:

  1. Tangible movable items
  2. Electricity
  3. Component parts
  4. Raw materials

Practical Considerations for Exam Preparation

Understanding the wide-ranging scope of 'product' is vital for candidates:

  1. Software and Digital Products: Although not explicitly covered in the CPA 1987, recent case law suggests that software, especially when part of a physical product, may be considered a product.

  2. Component Parts: Manufacturers of both defective components and final products could be held liable.

  3. Raw Materials: Even unprocessed materials can lead to liability if contamination results in harmful end products.

Exploring 'Defect' in Product Liability

The Consumer Expectation Test

Section 3(1) of the CPA 1987 defines a 'defect' as:

"A defect is present if the safety of the product is not what people generally are entitled to expect."

This test considers:

  1. Marketing and presentation
  2. Instructions and warnings
  3. Expected use or misuse
  4. Time of supply

Key Case Law

Significant cases have shaped the understanding of 'defect':

  1. A v National Blood Authority [2001] 3 All ER 289: Highlighted the test's objective nature, focusing on public expectations.

  2. Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB): Emphasized that safety expectations can vary depending on the product and user.

Common Law Negligence in Product Liability

While the CPA 1987 offers a statutory framework, common law negligence remains relevant, emphasizing:

  1. Duty of care
  2. Breach of duty
  3. Causation
  4. Damage foreseeability

Differences from CPA 1987

  1. Burden of Proof: Under common law, the claimant must prove negligence, unlike the CPA 1987 where only defect and causation need proof.

  2. Range of Liability: Common law can involve a wider array of defendants.

  3. Types of Loss: Recovery for pure economic loss may be possible under common law.

Case Law Reference

Donoghue v Stevenson [1932] AC 562: Established key principles for the manufacturer's duty of care to consumers.

Defenses under CPA 1987

A strong understanding of defenses available is key for exam readiness:

Development Risks Defense

Also termed as the "state of the art" defense:

  • The defendant must show that scientific and technical knowledge at the time was insufficient to detect the defect.

Case Example: In A v National Blood Authority [2001], this defense was limited to unknown risks.

Compliance with Regulations Defense

Manufacturers may avoid liability if the defect arose from adherence to mandatory regulations.

Other Statutory Defenses

  1. The "not supplied" defense
  2. The "not supplied in the course of business" defense
  3. The "subsequent defect" defense

Practical Application and Examples

Example 1: Autonomous Vehicle Software Defect

An autonomous vehicle crashes due to software issues, injuring the passenger.

Analysis:

  • Software may be deemed a 'product' if it’s essential to vehicle function.
  • 'Defect' assessed based on reasonable safety expectations for such vehicles.
  • Development risks defense requires evaluating AI technology status at the supply time.

Example 2: Pharmaceutical Side Effects

A new drug causes unexpected side effects in some users.

Analysis:

  • The drug is clearly a 'product' under CPA 1987.
  • 'Defect' depends on if side effects exceed reasonable expectations, considering warnings and risks.
  • Development risks defense might apply if side effects were unforeseeable given scientific knowledge at the time of distribution.

Conclusion

A thorough understanding of 'defect' and 'product' definitions in product liability law is essential for SQE1 FLK1 exam success. Key points include:

  1. The broad definition of 'product' under CPA 1987, covering goods, electricity, components, and raw materials.
  2. The consumer expectation test for 'defect' determination.
  3. The relationship between statutory and common law approaches.
  4. Key defenses, notably the development risks defense.
  5. Application of these concepts to real-world situations involving technology and pharmaceuticals.

Equipped with these principles, candidates can confidently tackle product liability questions in their exams.