We all like to see the joy on someone’s face when you give them a gift.
Whether unexpected or not, you assume the present is safe and will not harm the receiver.
So what happens if a product causes injury or is considered not safe?
David Brown, Chartered Legal Executive at Wake Smith Solicitors looks at product liability cases.
He said: “Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause.
“Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.
“If your business supplies products to consumers, you need to make sure the products are safe.
“The heaviest responsibility falls on producers, eg the manufacturer of a product. But distributors, such as shops and wholesalers, also have legal responsibilities.
“Failing to meet your responsibilities can have serious consequences. You could face legal action with possible fines or even imprisonment. You could also be sued by anyone who has been injured or has suffered damage to personal property, as a result of using your product.
“Despite products undergoing rigorous testing before being considered safe for public use, sometimes faulty products can slip through the net and cause someone a serious injury, leave them with scarring or make a pre-existing condition worse.
“The latest potential case in the media was a child that tested positive for arsenic after playing with some magnetic putty. The family is currently seeking legal advice on next steps after the product was withdrawn over fears it contained high levels of the poison.
“In this type of case, producers and distributors may be liable for damage under the Consumer Protection Act (CPA) or the common law of negligence.
“An action under the CPA ,or for negligence, can be brought for death, personal injury and damage caused to private property as the result of a product defect.
“The CPA imposes strict liability on manufacturers of defective products for harm caused by those products.
“This means that people who are injured by defective products can sue for compensation without having to prove that the manufacturer was negligent. It is merely necessary to prove that the product was defective, and that any injury or damage was most likely caused by the product.
“A 'product' can include goods, electricity and the component parts of any product. Where a component of, or raw material incorporated into, a finished product is defective, both the manufacturer of the component and the manufacturer of the finished product are potentially liable.
“A product is defective for the purposes of the CPA if its safety, including not only the risk of personal injury but also the risk of damage to property, is "not such as persons generally are entitled to expect".
“A product will not generally be considered defective just because a safer version is later put on the market.
“In assessing the safety of the product the court will take into account all of the circumstances, specifically including:
- All aspects of the marketing of the product
- The use of any mark in relation to the product;
- Instructions and warnings;
- What might reasonably be expected to be done with the product at the time the product was supplied.
“Although liability under the CPA is strict, the producer has a number of defences available if a claim is made.
It is a defence to show:
- that the product is defective in order to comply with domestic or European law
- the party the claim is being made against did not supply the product
- that the product was not manufactured or supplied in the course of a business
- that the defect did not exist at the time the product was put into circulation
- If the party is being sued because it manufactured a component - that the defect is a defect within the finished product, and came about because of the way the finished product was designed or because of instructions given by the manufacturer of the finished product.
“The team here has successfully helped a number of people who have been injured after using defective products, including most recently severe burn injuries and scarring caused by a wallpaper stripper, damage to hair and scalp caused by faulty hair products, and skin and bodily injuries caused by a Chinese Lantern.”
If you or a loved one have been harmed as a result of a faulty product, Wake Smith’s personal injury team will work with you to ensure you are financially compensated and, if necessary, signposted to specialist rehabilitative services to aid your recovery.
For further information call David Brown at [email protected] or on 0114 266 6660.
