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The concept of defectiveness in the Consumer Protection Act 1987: a critical analysis

Published online by Cambridge University Press:  02 January 2018

Alessandro Stoppa
Alessandro Stoppa*
Affiliation:
Private Law Institute, Rome University ‘La Sapienza’
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Extract

The concept of defectiveness is undoubtedly of crucial importance in the structure of the Consumer Protection Act 1987. The definition of the term ‘defect’, upon which will depend the actionability ofdamage caused by a product, is set out in s 3, which reads as follows:

(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘safety’, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

Type
Research Article
Information
Legal Studies , Volume 12 , Issue 2 , July 1992 , pp. 210 - 226
Copyright
Copyright © Society of Legal Scholars 1992

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References

1. Clark, , Product Liability (London, Sweet & Maxwell, 1989) 29 Google Scholar. See also Whittaker, , ‘The EEC Directive on Product Liability’ (1985) 5 YEL 233, 242.Google Scholar

2. In fact, the definition in s 3 does not expressly endorse such a distinction, but neither does it exclude it, and this is probably how the courts will tackle the problem in practice.

3. Council Directive No 85/374/EEC. The rationale underlying the choice for a strict liability system is set out in Whereas No 2 of the Preamble, according to which, ‘liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modem technological production.’ Section 1 (1) of the CPA 1987 states: ‘This Part shall have effect for the purpose of making such provision as is necessary in order to comply with the product liability Directive and shall be construed accordingly.’

4. It may be interesting to note, on a comparative level, that art 5(3) of the Italian Presidential Decree of 24 May 1988, No 224, which implements the product liability Directive, expressly states that ‘[a] product shall be considered defective if it does not provide the safety normally provided by the other items of the same line.’

5. For a leading example of this strict approach see Grant v Australian Knitting Mills [1936] AC 85, PC. See also Hill v James Crow (Cares) Ltd [1978] 1 All ER 812.

6. Cf Newdick, , ‘The Future of Negligence in Product Liability’ [1987] 103 LQR 288, 291.Google Scholar

7. See Miller, & Lovell, , Product Liability (London, Butterworths, 1977) 190.Google ScholarPubMed

8. An analysis of the question whether human blood and its derivatives and transplant organs are to be considered ‘products’ under s 1(2) of the Act falls outside the scope of the present work. See however, in the affirmative, Clark, op cit, 64 and Whittaker, op cit, 262. Cf also the Report of the Pearson Committee, Cmnd 7054–1 (1978) para 1276.

9. Hints v St Joseph's Hospital, 86 NM 763,527 P 2d 1075 (1974). For a different approach see, however, Cunningham v MacNeal Memorial Hospital 47 111 2d 443,266 NE 2d 897 (1970).

10. Restatement (Second) of Torts 8 402A, comment k (1965).

11. Ibid (emphasis in original).

12. Cf Cane, , ‘Unsafe Products and the State of the Art: UK Proposals’ (1979) 3 JPL 239, 241Google Scholar.

13. Cf Taschner, , ‘European Initiatives: The European Communities’ in Miller, (ed); Comparative Product Liability (London, BIICL, 1986) 8 Google Scholar et seq.

14. See Clark, op cit, 168.

15. Cf Taschner, ‘La future responsabilité du fait des produits défectueux dons la Communauté européenne’ (May 1986) 297 Rev M Corn 257, 262.

16. According to Newdick, , ‘The Development Risk Defence of the Consumer Protection Act 1987’ (1988) 47 CLJ 455, 472CrossRefGoogle Scholar, the defence ‘ought not to be extended further to cover problems of quality control.’ Cf also Clark, , op cit, 151 Google Scholar, according to whom, the development risks defence ‘does not relate to the preclusion of known hazards but to the question of whether unknown hazards ought to have been discovered.’ For an wen broader proposition see Frumer, & Friedman, , Products Liability (New York, Matthew Bender, 1991)Google Scholar 2.26 [8][d][ii][A], according to whom, ‘[s]tate of the art evidence is nowhere admissible as proof that a product was not defective in manufacture. The issue in such cases is whether the product performed as it was designed to perform, and then-existing technical capability is not relevant to this inquiry.’

17. 47 Ill 2d 443, 266 NE 2d 897 (1970).

18. Ibid, 453 and 902.

19. Where the consumer expectations test is the only test for defectiveness, it is hard to escape the logic of the ‘patent danger rule’. The drawbacks of this approach are apparent in the cases of Vineyard v Empire Machine Co, 119 Ariz 502,58 1 P 2d 1 152 (1978) and Hartman v Miller Hydro Co Inc, 499 F 2d 191 (10th Cir 1974). The majority of the US courts are, however, opposed to it. See, eg, Cronin v JBE Olson Corporation, 8 Cal 3d 12 1, 104 Cal Rptr 433, 501 P 2d 1153(1972); Luque v MacLean 8 Cal 3d 136, 104 Cal Rptr 443, 501 P 2d1163 (1972); Stenberg v Beatrice Foods Co, 176 Mont 123,576 P 2d 725 (1978). For further discussion see Twerski, ‘From Risk-Utility to Consumer Expectations: Enhancing the Role of Judicial Screening in Product Liability Litigation’ (1983) 11 Hofstra L Rev 861, 926 et seq.

20. Wade, , ‘On the Nature of Strict Tort Liability for Products’ (1973) 44 Miss LJ 825, 829.Google Scholar

21. Cf Schwartz, G., ‘Foreword: Understanding Products Liability’ (1979) 67 Cal L Rev 435, 479CrossRefGoogle Scholar.

22. Prosser, & Keaton, , On Torts, 5th edn (St Paul (Minn), West Publishing Co, 1984) 699 Google Scholar. Moreover, it seems highly unlikely that the courts will be able to rely on expert testimony as to what the ordinary consumer is entitled to expect. See Schwartz, G., op cit, 478 Google Scholar and Ramsey, , ‘Consumer Expectation Test for Design Defect in California’ (1989) 24 Tort & Ins LJ 650, 661.Google Scholar

23. Model Uniform Product Liability Act (UPLA), Analysis § 104(B), reprinted in 44 Fed Reg 62, 714 (1979) 62, 724.

24. Clark, op cit, 37.

25. Cf G. Schwartz, op cit, 479 et se 9.

26. Stapleton, , ‘Products Liability Reform – Real or Illusory?’ (1986) 60 OJLS 392, 405.CrossRefGoogle Scholar

27. According to the California Supreme Court, in Barker v Lull Engineering Go, 20 Cal 3d 413, 433, 573 P 2d 443, 456, 143 Cal Rptr 225, 238 (1978), ‘in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations in determining whether a product is defectively designed or not.’ See also Wade, ‘On Product “Design Defects” and Their Actionability’ (1980) 33 V and L Rev 551, 568.

28. See, eg, Aller v Rodgers Machinery Mfg Go Inc, 268 NW 2d 830 (1978); Byrns u Rial Inc, 113 Ariz 264, 550 P 2d 1065 (1976); Caterpillar Tractor Go u Beck, 593 P 2d 87 1 (1979); Cepeda v Cumberland Engineering Go Inc, 76 NJ 152,386 A 2d 816 (1978); Haton v Ford Motor Co, 248 Or 467, 435 P 2d 806 (1967); Phillipa v Kimwood Machine Go, 269 Or 485, 525 P 2d 1033 (1974); Raty v Hotywell Inc, 540 F 2d 932 (8th Cir 1976); Seattle-First Nat'l Bank v Tabert, 86 Wash 2d 145,542 P 2d 774 (1975); Self v General Motors Gorp, 42 Cal App 3d 1,116 Cal Rptr 575 (1974); Turner v General Motors Gorp, 584 SW 2d 844 (1979).

29. It may be noted that the US Model Uniform Product Liability Act, in keeping with its fundamental policy recognition that product liability law is a branch of the law of torts, has endorsed a test based on a pure risk-utility balancing process. See UPLA, Analysis 8 104(B), 44 Fed Reg 62, 723. For a comment on UPLA see V. Schwartz, ‘The Uniform Product Liability Act – A Brief Overview’ (1980) 33 V and L Rev 579 and Twerski, ‘A Moderate and. Restrained Federal Product Liability Bill Targeting the Crisis Areas for Resolution’ (1985) 18 Univ of Mich J of L Ref 575.

30. Feldman v Lederle Laboratories, 479 A 2d 374, 385 (1984).

31. The most popular is that proposed by Wade, which indicates seven factors which should be considered in applying a risk-utility test. See Wade, , ‘On the Nature’, op cit, 837 Google ScholarPubMed et seq. For a list of cases in which the courts have explicitly adopted the test see Clark, op cit, 32 (note 22).

32. Indeed, an analysis of the problems involved in reviewing conscious and deliberate design choices have led some commentators to conclude that complex design defects cases cannot be adjudicated objectively. See, generally, Henderson, ‘Judicial Review of Manufacturer's Conscious Design Choices: The Limits of Adjudication’ (1973) 73 Colum Law Rev 1531 and Id, ‘Design Defect Litigation Revisited’ (1976) 61 Cornell L Rev 541. See also Twerski, ‘From Risk Utility to Consumer Expectations’, op cit, 865 et seq.

33. It appears that this approach will most probably be followed also by the English courts. Cf Griffiths, et al, ‘Developments in English Product Liability Law: A Comparison with the American System’ (1988) 62 Tulane L Rev 353, 382Google Scholar.

34. 20 Cal 3d 413, 573 P 2d 443, 143 Cal Rptr 225 (1978).

35. 20 Cal 3d 413, 432, 573 P 2d 443, 455456, 143 Cal Rptr 225,237–238. The two-prong test for defectiveness has also been adopted in several other cases. See, eg, Heaton v Ford Motor Co, 248 Or 467,435 P 2d 806 (1967); Caterpillar Tractor Co v Beck, 593 P 2d 87 1 (1979); Sub v Sun Angelo Foundry? Machine Go, 81 NJ 150,406 App 2d 140 (1979).

36. Take, for instance, the case of a new tyre that blows out while a car is being driven on a main road at 50 miles per hour. Under this approach, once the plaintiff has established the absence of any intervening cause, it would not be necessary for him to challenge the manufacturer's design choices or production process. Cf Twerski, op cit, 902 ct seq.

37. Section 3(2).

38. In point of fact, a number of provisions in the Act may still be repealed or modified pursuant to arts 15(3), 16(2) and 18(2) of the Directive 85/374/EEC. Article 15(3) actually contemplates the possibility that ten years after the date of notification of the Directive, art 7(e), which allows a development risks defence, may be repealed.

39. In fact, when the balancing of the risks against the benefits of a product is involved, the distinction between focusing on the design of a product and focusing on the act of designing that product would seem to become blurred in practice. Cf Diamond, , ‘Eliminating the “Defect” in Design Strict Products Liability Theory’ (1983) 34 Hastings LJ 529, 538Google Scholar.

40. See Clark, op cit, 43 and Newdick, ‘The Future of Negligence’, op cit, 310: ‘Particularly in the area of conscious design compromises any system of compensation which falls short of complete accident insurance, be it fault based or strict, will tend to associate itself with the reasonableness of the designer's conduct in all the circumstances of the case.’

41. See, eg, Stapleton, op cit, 408 ct seq, Clark, op cit, 38 et seq, Keeton, , ‘Product Liability and the Meaning of Defect’ (1973) 5 St Mary's LJ 30, 37Google Scholar et seq and Prosser, & Keeton, , On Torts, op cit, 700 Google Scholar.

42. For obvious reaons, costs (ie the damages ensuing from the use of the product) will always be assessed objectively, as known at the time of the trial, even under the law of negligence. Cf Stapleton, op cit, 408 ct seq.

43. Section 3(2)(c).

44. Section 3(2), last sentence.

45. The fact that the state of the art factor will play a key role in the evaluation of product safety, will have important practical consequences: since the burden still lies with the plaintiff to prove a defect in the product, one of the major drawbacks of a negligence approach, namely the need to support one's case with evidence as to the state of the art at a past pint in time, will still be intrinsic to the new system. Cf Stapleton, op cit, 413 and Clark op cit, 39

46. Cmnd 6831 (1977) para 49.

47. Stapleton, op cit, 411 (emphasis in original).

48. See, eg, Whittaker, op cit, 258, Stapleton, op cit, 393, 413 ct seq, Clark, op cit, 155, Newdick, ‘The Development Risks Defence’, op cit, 460, 476. It may also be noted that both the Law Commission and the Pearson Commission recommended in their Reports that a development risks defence ought not to be introduced. See, respectively, Cmnd 6831 (1977) para 105 and Cmnd 7054–1 (1978) para 1258. Although the Law Commissions actually speak of ‘state of the art’, the context suggests that the expression is used to mean development risks. Cf Marsh, , ‘Products Liability in the Light of the Recommendations of the Law Commissions and the Pearson Commission’ (1979) 3 JPL 173, 184Google Scholar.

49. Whittaker, op cit, 258.

50. Article 7(e) of the Directive states that a producer of a defective product shall not be liable under the Directive if he proves ‘that the state of scientific and technical knowledge at the time when the producer put the product into circulation was not such as to enable the existence of the defect to be discovered.’

51. Founding his conclusions on a penetrating analysis of the problem, one commentator has suggested that s 4(1) (e) of the Act has correctly implemented art 7(e) of the Directive. See Newdick, ‘The Development Risks Defence’, op cit, 460. However, the Commission of the European Communities has taken the opposite view and has opened infringement proceedings against the UK, arguing that s 4(1)(e) of the UK Act ‘takes-an “ideal” producer as the standard of measuring whether or not a defect could have been discovered according to the state of scientific and technical knowledge’ and that ‘[t]his introduces a subjective element thereby tending to lead national judges to apply the rules of negligence and liability based on fault.’ On the whole, the arguments of the Commission would seem to be convincing. See Press Release of 22 December 1988, EC doc IP (88) 877.

52. Cf McKendrick, , ‘Product Liability and the Development Risks Defence’ (1990) 2 Law for Bus 252, 254.Google Scholar

53. Prosser & Keeton, op cit, 700.

54. The argument can in fact be made out that, in relation to the reversal of the burden of proof, ‘there may be room for so many differences of professional opinion that its discharge will not be a simple matter.’ See Newdick, ‘The Development Risks Defence’, op cit, 475.

55. Thus, according to Stapleton, op cit, 403: ‘there is no place in the full strict liability regime for the defect concept or for negligence-derived concepts such as discoverability and avoidability of risks, and cost-benefit and state of the art considerations.’ One other commentator has also taken the view that ‘[b]etween social insurance and the law of Negligence, there is no firm ground on which Product Liability can assess [design] defects.’ See Newdick, ‘The Future of Negligence’, op cit, 310. See also G. Schwartz, op cit, 441.

56. Wade, ‘On Product “Design Defects”’, op cit, 552.

57. In the case of Wormell v RHM Agriculture (East) Ltd [1986] 1 WLR 336, rev'd on other grounds, [1987] 1 WLR 1091, the instructions were in fact found to form part of the goods.

58. See Miller & Lovell, op cit, 208 and Clark, of cit, 104 et seq. Cf also Wade, ‘On the Erect in Product Liability of Knowledge Unavailable Prior to Marketing’ (1983) 58 NYU L Rev 734, 740, 747.

59. It should be noted, however, that, although apparently simpler, failure to warn litigation raises serious problems of effective adjudication by the courts. In such cases, the lack of objective guidelines would appear to be enhanced by the vagueness of the concept of adequate warnings. Accordingly, one commentator has taken the view that ‘[u]ltimately, the need for warnings is very largely a matter for judicial intuition about which it is not possible to be precise.’ See Newdick, ‘The Future of Negligence’, op cit, 309. Cf also Henderson & Twerski, ‘Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn’ (1990) 65 NYUL Rev 265, 290, according to whom, ‘the standards governing failure-to-warn negligence claims provide restraints on jury discretion that are so inadequate as to be virtually nonexistent.’

60. For a thorough analysis of the negative consequences of over warning on product's safety see Twerski, et al, ‘The Use and Abuse of Warnings in Products Liability - Design Defect Litigation Comes of Age’ (1976) 61 Corn L Rev 495, 513Google ScholarPubMed et seq and Epstein, , Modern Products Liability Law (Westport (Connecticut), Quorum Books, 1980) 155 Google Scholar et seq.

61. For the concept of feasible alternative design see Prosser & Keeton, On Torts, op cit, 700.

62. 90 NJ 191, 477A 2d 539 (1982).

63. Id 204 and 546.

64. Ibid.

65. Although in Beshada the court actually speaks in terms of ‘state of the art defence’, it is clear from the context that the expression is used in relation to development risks. In the US, the expression ‘state of the art’ has in fact a very wide sense. According to one commentator, it is ‘a chameleon-like term, referring to everything from ordinary customs of the trade to the objective existence of technological information to economic feasibility.’ See Wade, ‘On the Effect’, op cit, 750.

66. See, eg, Carrecter v Colson Equipment Co, 346 Pa Super 95,499 A 2d 326 (1985); Halpern v Johns-Manville Sales Corpn, 484 So 2d 110 (1986); Little v PPG Industries Inc, 19 Wash App 812,579 P 2d 940 (1978); Phillips v Kimwood Machine Co, 269 Or 485,525 P 2d 1033 (1974); Freund v Cellofilm Properties Inc, 87 NJ 229, 432 A 2d 925 (1981). In support of a strict liability theory for failure to warn cases, see Keeton, ‘Product Liability - Inadequacy of Information’ (1970) 48 Tex L Rev 398.

67. Feldman v Lederle Laboratories, 97 NJ 429, 479 A 2d 374 (1984).

68. In most US decisions, liability has thus been imposed only on condition that the manufacturer had actual or constructive knowledge of the defect in the product at the time of marketing. See, eg, Basko v Sterling Drug Inc, 416 F 2d 41 7 (2d Cir 1969); Christofferson v Kaiser Foundation Hospitals, 15 Cal App 3d 75,92 Cal Rptr 825 (1971); Oakes v EI Du Pont de Nemours & Co Inc, 272 Cal App 2d 645,77 Cal Rptr 709 (1969); Woodhill v Parke Davies & Co, 79 III 2d 26,402 NE 2d 194 (1980); Moore v Vanderloo, 386 NW 2d 108 (1986); Kearl v Lederle Laboratories, 172 Cal App 3d 812, 218 Cal Rptr 453 (1985); Brown v Superior Court (Abbott Lobs), 44 Cal 3d 1049, 245 Cal Rptr 412, 751 P 2d 470 (1988).

69. According to 5 402A, comment j, a duty to warn on the part of the manufacturer only arises if ‘he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the… danger.’

70. Cf Taschner, ‘European Initiatives’, op cit, 9: ‘The breach of this duty [to warn] is a breach of the duty to take care and, therefore, ordinary negligence… This is a matter of ordinary fault liability.’

71. The same reasoning would in fact seem to apply to both design defects and failure to warn cases. Cf supra 221.

72. An analysis of the specific duties of the manufacturer in relation to warnings and instructions falls outside the scope of the present work and appears to be all the more unnecessary in that, it has been suggested, such duties will be imposed in accordance with the principles of the existing case law. For further discussion, cf however, Miller & Lovell, op cit, chap 12, Miller, , Product Liability & Safety Encylopaedia (London, Butterworths, 1990)Google Scholar III [31] to [43.1] and Wright, Product Liability (London, Blackstone Press, 1989) 122 et seq. For the US experience see Sales, ‘The Duty to Warn and Instruct for Safe Use in Strict Tort Liability’ (1982) 13 St Mary's LJ 521.