In this article we look at (1) the current legal regime for product liability and safety claims in the UK; (2) the challenges to the current regime; and (3) some potential changes to the regime that may be introduced to address these challenges.
Overview of product liability and product safety
Product is defined in the Consumer Protection Act 1987 (CPA) as “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”.
Currently, where a consumer has suffered damage caused by a defective product, there are three main causes of action they may be able to pursue. In summary, these are:
- Breach of statutory duty – CPA: The CPA imposes a strict liability on various parties in the supply chain for damage caused to a consumer from using a defective product. The CPA only applies to products for personal, rather than business, purposes. When contracting with consumers, you cannot exclude or limit your liability under the CPA.
- Negligence: A claim in negligence can be brought by anyone who bought, uses and/or is injured by a defective product if they can show that the defendant owes them a duty of care, and that this duty was breached which caused the damage they suffered. As with the CPA, a claim can be brought against various parties in the supply chain. You cannot exclude or limit your liability for death or personal injury caused by negligence; however, it is possible to exclude or limit liability for other damages caused (subject to those terms meeting the reasonable test in the Unfair Contract Terms Act 1977).
- Breach of contract: This claim will usually be limited to the parties to the contract. Depending on the terms of the specific contract, the consumer will need to prove the supplier sold a product which breached either the express or implied terms, and that the breach caused the damage. The Consumer Rights Act 2015 implies terms into business-to-consumer contracts, including that the product must be of satisfactory quality and fit for the purpose for which it was supplied. The Sale of Goods Act 1979 implies terms into business-to-business contracts. The scope to limit your contractual liability therefore depends on whether you are contracting with a business or a consumer.
Multiple causes of action can be brought at the same time which can allow claimants to recover different types of damages. However, the same damages cannot be recovered twice.
In addition to the rules on product liability, separate legislation regulates the safety of products in the UK.
The product safety rules applicable to your business will vary depending on the sector you work in and the types of products you produce and/or distribute. The General Product Safety Regulations 2005 ("GPSR") cover the general position on the safety of products placed on the market where no sector-specific rules apply.
The purpose of the GPSR is to ensure that products placed on the market are safe for consumers. The GPSR sets out various factors to consider when determining whether a product is safe, for example, what instructions are provided to the consumer for the use, installation and maintenance of the product. The GPSR places obligations on various entities, including the manufacturer and any other professional in the supply chain whose actions may have an impact on the safety of the product. Obligations are also placed on distributors, who are defined in the GPSR, as an entity whose activity in the supply chain does not impact the safety of the product.
An offence committed under the GPSR is a criminal offence, in contrast to the civil liability conferred by product liability claims.
UK Product Safety Review
Challenges to the current regime
A primary focus of the Government’s recent consultation was to address the challenges created by technological advancements impacting the types of products consumers are buying and how, and from which jurisdiction, they are buying them. The pace and volume of change in these areas in recent years would have been incredibly difficult to have foreseen when the current legislative regime was put into place.
In its consultation paper, the Government explained that, following a product safety review call for evidence in 2021, respondents “recognised that the UK’s system of product safety regulation was facing a range of challenges and opportunities, from new technologies and rapidly changing business models, to how consumer products are made, supplied and used.”
The outcome of the Product Safety Review is likely to lead to changes to the current legislative regime governing product safety and liability. However, it is not currently clear what exactly these changes will be and when these changes will be put in place. The Government explained in the consultation paper that “fundamental reform is necessary”, however, there is no “quick fix”.
Some potential changes proposed by the Government in the consultation are:
- Simplifying the legislative regime for product safety: Technical standards and guidance could play a larger role in governing product safety. The Government believes this approach may be more flexible in being able to respond to market changes. In addition, legislation could be based on the types of hazards caused by products, rather than the types of products themselves.
- Review of the product liability regime: The current regime will require review to determine if it is fit for purpose considering the impact of technological advancements. One area of review will be to consider whether the definitions of “product” and “defect” in the CPA sufficiently address the various technology-based products available on the market.
- Addressing the challenge of complex supply chains: The Government is seeking to make changes that provide clarity of duties in more complex supply chains, including online marketplaces.
- E-labelling: Information for certain types of products could be made available digitally, rather than physically marked on the product.
- Enforcement: Relevant authorities will need new powers to enable them to enforce product safety rules in more complex (often multi-jurisdictional) supply chains.
Although the review will cover changes to some sector/product specific rules, as well as the GPSR, the consultation will not cover changes to the following areas which are regulated separately: food, chemicals, medical or healthcare products, construction products or vehicles.
What is clear is that change is coming; what is less clear is what exactly the changes will be and when they will come into effect. Watch this space for an indication of the next steps the Government will take after reviewing the results of the consultation.
In the meantime, if you would like advice on how to mitigate the risk of a product liability or safety claim arising, or if you need help with an active claim, please do get in touch.
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