LEGISLATION
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb01729.x |
| Published date | 01 September 1987 |
| Date | 01 September 1987 |
LEGISLATION
‘rHE
CONSUMER PROTECXION ACI‘ 1987
AFTER a lengthy and at times traumatic gestation period, Parliament
has now delivered legislation on Product Liability in the form of
Part
I
of
the Consumer Protection Act 1987. These provisions, the
culmination
of
at least 10 years
of
debate on Product Liability, will
be the primary subject of this note. The remainder
of
the Act (Part
I1
introduces the “general safety requirement” and Part
111
deals
with misleading price indications) is dealt with only in brief.
Part
I-Product
Liability
Over the years, at least four major sets of proposals have been
promulgated suggesting reform
of
the law on liability for defective
products: the Strasbourg Convention’; the recommendations
of
the
Scottish and English Law Commissions’; the report
of
the Pearson
Commission3; and the EEC dire~tive.~ The amended version
of
this
latter set of proposals was the immediate catalyst for reform:
passed on July
25,
1985, it gave member states three years in which
to implement the measure. Our government has indicated its
intention to allow the bulk
of
this lead-in time to elapse, stating
that there will be at least six months between the enactment
of
the
legislation and its entry into force.5 Thus, manufacturers in the
United Kingdom, having been alerted to the prospect
of
legislation
by the acceptance
of
the ‘directive, will have had more than two
years in which
to
set their operations in order before the Act’s
wider net
of
liability is cast.
The general effect
of
Part
I
of
the Act is to establish a system
of
strict, rather than fault-based, liability in respect
of
loss
caused by
defective products. Existing tort and contract remedies remain
available, but are now supplemented by a new conceptual structure
which focuses primarily on the condition
of
a product rather than
the conduct
of
its producer. However, the spirit
of
the reasonable
man has not been fully exorcised and, as we shall see, some of the
language and concepts
of
negligence reappear in the new rules.
Section
2,
containing the central provisions on Product Liability,
imposes liability for damage caused wholly or partly by a defect in
a product upon the producer, importer or an “own-brander’’
(someone who has held himself out to be the producer)
of
the
’
Euro can Convention on Products Liability in Regard
to
Personal Injury and Death,
DI$lJunfi6)5.
(1977) Cmnd.
6831.
’
(1978) Cmnd. 7054
851374lEEC.
The commencement date has
yet
to be announced.
614
SEFT.
19871
LEGISLATION
615
product. Much
of
the rest
of
Part
1
defines the key terms used in
this section.
(a)
“Product”
“Product” means 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 (section
l(2)).
Gas
and water are included in the definition of “goods.” Movable
property (such as a double-glazing window unit) which is
incorporated into an immovable is also covered. Agricultural
produce and game which have not undergone an industrial process
are exempted from the scope of the Act, making a departure from
the majority view in the four main sets of proposals referred to
earlier.
This definition
of
product is wide and it would seem inevitable
that some
of
the claims in major disasters stemming from, for
example, defective aircraft, ships or chemicals will come to be
litigated under the Act’s provisions.
Despite strong criticism at the Committee stage in the Lords (for
example, Lord Denning’s view that the development
of
new drugs
such as on AIDS virus would be inhibited) pharmaceutical products
are covered. It was felt that the inclusion
of
a “development risks”
defence afforded adequate protection to such products. Given that
the Thalidomide disaster initially provoked debate on reform
of
this area
of
the law, and that drugs are relatively common causes
of
injury, it would have been surprising for pharmaceuticals to
have been exempted.
Interesting questions remain: what, for example, is the position
of
human blood and organs? If hepatitis or AIDS is contracted
from blood,
is
there liability under the Act? The Pearson
Commission took the view that human blood and organs be
regarded as products and that persons responsible for distributing
them be regarded as producers for the purposes
of
strict liability.6
It seems that the terms “product” and “producer” are sufficiently
wide to embrace this view.
(b)
Persons
who
may
incur
liability
Primarily, liability is to be visited upon the producer. This will
of
course generally be the manufacturer, but the definition
of
producer
also deals with raw materials, in which case the person who “won
or abstracted” the substance
is
the producer. Similarly, those who
process products which have not been manufactured, won or
abstracted
(e.g.
agricultural produce) are producers. As noted
earlier, “own-branders” and importers (into the EEC) also incur
liability. Those who simply package goods, without processing, are
not producers, but such persons are not wholly outwith the reach
(1978)
Cmnd.
7054,
para.
1276.
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