280 Negligence and the rise of product liability

Q4 Analyse the standard of care and the need to prove a failure to comply with that standard.

(f)â Contributory negligence

In assessing liability for negligence, the contributory negligence, if any, of the injured user will be relevant in determining the outcome of the case. Hence, if the user has used a product knowing that it is defective or he has ignored appropriate warnings or not read the instructions for use provided with the product, he must bear his portion of the liability for his injuries with any compensation being reduced by a percentage that recognises his share of the blame.

4â The move to strict liability

The move to strict liability for product-related injuries has been a steady development over many years, involving amendments to the US Restatements of Torts, a report by the Joint Law Commission,18 the Pearson Report,19 the Strasburg Convention and, finally, the passage of an EC Directive,20 which, in the United Kingdom, has been adopted via the Consumer Protection Act 1987, Part 1.

Before proceeding to discuss the development and the detail of the Directive and the 1987 Act, it is important to recognise what is meant by strict liability. Strict liability must be distinguished from absolute liability. The latter renders the defendant liable irrespective of negligence and without the possibility of any defences. The mere doing of the action is enough to make the defendant legally responsible. By contrast, strict liability provides for prima facie liability without proof of fault but does typically allow for some defences upon which the defendant can rely to negate liability. Thus, in respect of strict product liability under the Consumer Protection Act 1987, there are six possible defences under section 4 ranging from compliance with mandatory standards to the development risk defence.21

The move away from negligence-based liability to strict product liability necessarily requires a different emphasis when considering whether civil

given on the box with fuller details being included on a leaflet contained in the box. The court held that this was sufficient. See also Peter Shears, ‘The EU Product Liability Directive: twenty years on’ (2007) Journal of Business Law 884.

18Law Commission and Scottish Law Commission, Liability for Defective Products, Law Com. No. 82, Scot Law Com. No. 45 (Cmnd. 6831, 1977).

19Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd. 7054, 1978) (‘Pearson Report’).

20Council Directive 85/374/EC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

21A full discussion of the statutory defences follows later in this chapter. Strict liability in criminal law is also indicated by the availability of defences. Thus, for example, defendants charged with offences the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (dealt with in Part 5) can utilise the due diligence defence assuming that they satisfy its requirements.