What is a ‘defective product’?

A ‘product’ can include goods, electricity and the component parts of any product. Where a component of or raw material incorporated into a finished product is defective both the manufacturer of the component and the manufacturer of the finished product are potentially liable.

A product is defective for the purposes of the CPA if its safety, including not only the risk of personal injury but also the risk of damage to property, is “not such as persons generally are entitled to expect”. A product will not generally be considered defective just because a safer version is later put on the market.

In assessing the safety of the product the court will take into account all of the circumstances, specifically including:

  • all aspects of the marketing of the product;
  • the use of any mark in relation to the product;
  • instructions and warnings;
  • what might reasonably be expected to be done with the product at the time the product was supplied.

This last factor allows the court to take account of the ‘state of the art’ at the time of supply.

Defences to a claim under the CPA
Although liability under the CPA is strict (see above), the producer has a number of defences available if a claim is made. It is a defence to show:

  • that the product is defective in order to comply with domestic or European law;
  • the party the claim is being made against did not supply the product;
  • that the product was not manufactured or supplied in the course of a business;
  • that the defect did not exist at the time the product was put into circulation;
  • if the party is being sued because it manufactured a component – that the defect is a defect within the finished product, and came about because of the way the finished product was designed or because of instructions given by the manufacturer of the finished

The CPA also includes a ‘development risks’ defence, which creates a defence if the “scientific and technical knowledge” at the time the product was manufactured was not such that the producer of a similar product might have been expected to discover the defect. This could be particularly important in relation to innovative and high-tech products. However it has been argued that the wording of the UK law is less strict than the wording of the law at European level, which deals with the state of scientific and technical knowledge generally rather than what a producer of similar products might be expected to discover.

How long are producers liable for?
The basic limitation period for claims under the CPA is three years from the date of damage or injury. However, since damage may not be immediately apparent, an alternative period of three years from the date when the producer knew – or could reasonably have known – of the claim, is provided. Since a product may remain in circulation for many years, a claim cannot be made more than ten years after the product was put into circulation.

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