Comparing Tort of Negligence and No-Fault Liability under the Consumer Protection Act for Product Defects

This essay will discuss the elements of liability for damage caused by a defective product in the tort of negligence and under the Consumer Protection Act 1987 (the CPA). It will compare and contrast the elements and determine the extent of protection provided by the two sets of law.

Who can claim?

Under tort of negligence, anybody who has suffered loss, either property damage or personal injury, due to the use of a defective product can claim for negligence against the manufacturer of the product. Under the CPA, a claim can be brought by a person injured by a 'defective product', irrespective of whether that purchased the product or not.

What must be proved?

Under tort of negligence, the claimant must established four elements: a) there must be a duty of care owed by the manufacturer; b) the manufacturer breaches this duty of care; c) such breach causes the damage; and d) the damage is not too remote from the breach. There are certain limitations to it. Liability could only be imposed on the manufacturer if it did not take reasonable care. The claimant must be able to prove this. This may prove challenging and expensive for the claimant. In certain cases, it is for the manufacturer to prove that it took reasonable care based on the principle of 'res ipsa loquitur', which means that there could be no explanation other than an act of negligence on the part of the manufacturer. Another limitation to prove liability would be when the complaint related to negligent design. Here the position of the claimant could be weaker and expert evidence may be required to prove negligence.

According to the CPA, there is no need to prove fault on the part of the manufacturer (S2(1)). The Act imposes a no-fault liability on the manufacturer for the damage caused by the defective product. The claimant must establish the following three elements: a) product is defective; b) claimant suffers damage due to the use of the defective product; and c) damage suffered has a causal link with the defective product (Hudley v Baxendal). The case of Wilkes v Depuy (2016) provided principles of determining a defect vis-à-vis the Consumer Protection Act, s3. The defect must be firstly identified. An objective test is applied to determine the reasonable expectation of safety of the product with respect to what the consumer is entitled. It must weigh the risk and benefit in features of the product while determining the defect.

What is the time limit for filing the claim?

For tort of negligence, the Limitation Act 1980 sets six years as the limitation period for bring a claim in tort for damages other than personal injury. For personal injury cases, it sets a shorter period of three years. The period commences from the date on which the cause of action arose or the date on which the claimant gained knowledge of the injury suffered.

For consumer protection, the Limitation Act sets the limitation period for three years from either the date on which the cause of action arose; or the date the claimant or the person in whom the cause of action was earlier vested, if earlier, gained the knowledge. However, there is an absolute long-stop of ten years from the date the defective product was first put into circulation.

As could be seen here, the Act provides certain situations where the claim period could be filed within 10 years as well (in respect to where the product is in circulation for number of years), which is longer than the limited period set out by the tort of negligence.

Can liability be excluded?

Under tort law, there could be a defence of contributory negligence where the claimant did not pay heed to warnings, instructions and misused the product or continued to use the product despite knowing the risk associated with the use (Grant v Australian Knitting Mills). That way liability could be excluded by the defendant. However, measures to protect the consumer are more under the CPA.

The Consumer Protection Act, s8 prohibits a party from limiting or excluding liability for damages due a defective product. Even the Unfair Contract Terms Act 1977 (UCTA) considers such contractual terms as limiting liability if they are disproportionately prejudicial to a consumer. Consumers are provided remedy to repair or replace the defective product within the first six months of the product goods being delivered. The burden of prove, during this time, falls on the producer or the retailer to prove that the product was not defective. The CPA presents a strict liability, which the manufacture cannot escape liability or burden the consumer with unfair terms and conditions.

Under tort law, the liability could be joint, several, or joint and several. This means the claimant can claim full value of their damages from one of the defendants. The liability is proportionately assigned where a defendant partially responsible for the damage makes lesser contribution to the total damages.

Both the tort of negligence and the Consumer Protection Act follow the fundamental principle of restoring the consumer, as far as possible, at his/her original position. The damages are calculated to compensate for the damages caused.

Conclusion

CPA remedy is wider in scope and it gives more protection to the consumers as they most of the time have a weaker bargaining power than the manufacturer or the retailer. They do not need to prove fault, but the damage caused is sufficient for them to bring the claim. It is enough if the product does not meet the reasonable expectation of the consumer.

The difficulty of establishing the product was defective and that the duty of care was breached was removed by the Consumer Protection Act 1987. The Act imposes a strict liability tort. It covers both personal injury and damage to property caused by the defective product.

Even the period of limitation is more as provided by the CPA. Further, the remedy is mostly based on contractual terms and conditions, where contractual laws apply to ensure the bargaining power of the consumer is protected. CPA claims could be lesser expensive and challenging that a tortuous claim. This is because the burden is more on the part of the manufacturer due to the application of strict no-fault principle.

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