The UK’s product liability laws impose strict liability upon manufacturers and distributors for defective products. But what renders a product defective?
Under section 3 of the Consumer Protection Act 1987 whether a product is “defective” is determined by whether the safety of the product is below that which consumers are generally entitled to expect.
Earlier this year the Supreme Court  was asked to consider the concept of “defect” in the context of a case relating to one of a number of products commonly used in hip replacement surgery.
The Supreme Court considered statements made in earlier cases in the lower courts culminating in the following broad principles:
- The concept of “defect” is the failure of the product to meet an objective standard of safety
- The test is whether the safety of the product is not such as persons generally are entitled to expect
- The test is one of entitled expectation by the public at large and not the actual expectation of the particular consumer/s
- This is assessed by having regard to all circumstances relevant to the evaluation of safety at the time that the product was supplied by its producer to another
- Warnings, the manner of marketing, the reasonable expectation of use and the time when the product was supplied are all relevant factors, but not the only factors
- The Court is entitled to have regard to everything now known about the product that is relevant to the enquiry into safety, even if it was not available at the time that the product was put into circulation
- The burden of proof is on the consumer to establish both a defect in the product and a causal link to the injury occurring
- There is no entitlement to an absolute level of safety with some products, an element of risk may be natural
Product Liability is a complex area and has the ability to damage your business reputation as well as profitability. IBB’s lawyers are experienced in advising on risk mitigation strategies relating to potential and actual product liability issues…….
 Hastings v. Finsbury Orthopaedics Ltd  UKSC 19.
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