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        Product Liability: Who can be claimed against? Part II

        MANUFACTURER

        This article will build on our discussion of product liability claims against the seller of a product.

        Sometimes, it will be necessary and sensible to bring actions against the manufacturer of a product. This may be the case for instance if the shop has gone into liquidation or the surgeon has no insurance.
        An action in breach of contract cannot be brought against the manufacturer of the product as there isn’t a close enough relationship between the manufacturer and consumer as they have never entered into a contract. Hence we can’t rely on the Consumer Rights Act 2015 in this case.

        However, there are still two possible strong routes for bringing a claim.

        Consumer Protection Act 1987

        The first is using the Consumer Protection Act 1987. This Act of Parliament makes producers liable for loss occasioned by defects in their products. There is a defect in the product if ‘the safety of the product is not such as persons are entitled to expect (s3 CPA 1987). What this means exactly has been hotly debated over the years. Judges generally take a common sense approach depending on what consumers would generally expect from a product, with tobacco and alcohol being accepted by consumers as more likely to cause injury then for instance a baby’s pram.

        One example may be the DePuy or metal on metal faulty hip replacement. A consumer may accept some initial pain and suffering following hip replacement surgery, however they shouldn’t be expected to have ill fitting implants or metal debris being shed in the body, potentially causing muscle and bone loss. Equally, with a dermal filler product like Bio-Alcamid, a consumer may expect some swelling and even a bad reaction, but they would not be required to accept infections, hardening of the implants and migration of the filler across the face leading to disfigurement.

        Like sellers under the CRA 2015, manufacturers will be held strictly liable under the CPA 1987. It is not necessary to prove whether they were at fault or whether they failed to take appropriate steps to resolve the defect. As long as there is a defect, and that defect caused a loss, the manufacturer will be liable for damages.

        Negligence

        Finally, a cause of action can be brought against the manufacturer in negligence. However, like with sellers, a claimant will need to prove some sort of wrongdoing on behalf of the manufacturer so claims will generally be brought under the CPA.

        At the Specter Partnership Solicitors, our dedicated team of litigation solicitors have the skill and expertise to help you bring a product liability action.

        For more information on product liability, visit www.gov.uk/guidance/product-liability-and-safety-law

        If you would like more information or to arrange a free, confidential consultation, please call us on 0207 251 9900, or email enquiries@specterpartnership.co.uk.