In this essay, I shall get down with an scrutiny of the jurisprudence prior to 1stMarch 1988, when Part 1 of the Consumer Protection Act 1987 came into force in the Law of England and Wales, placing the grounds for the origin of the Act and the subsequent intents of this reform-legislation. I shall so discourse the content of the Act with peculiar focal point on its range ; i.e. who can action, who can be sued, and what sorts of amendss are recoverable under the statute law etc.
Having made this appraisal, I shall so measure to what extent the 1987.
Act has made a important impact on the jurisprudence refering to faulty merchandises, and the place of both consumers and makers in the UK, and hence to what extent I agree with the hypothesis offered that “the impact of the 1987 Act upon makers has been far less drastic than they ab initio feared.” I shall reason this essay by critically measuring Part 1 of the Consumer Protection Act 1987, and asseverating to what extent I believe the Act has been successful in accomplishing its purposes.
Prior to the origin of the Consumer Protection Act 1987, the jurisprudence refering to liability for faulty merchandises was grounded in common jurisprudence, with makers liability being established for the first clip in the UK by the instance of Donoghue v Stevenson , and the Sale of Goods Act 1979, s13, 14 and 15 of which imply certain footings into Sale contracts refering to a seller’s duties to sell merchandises which are fit for their intent and of satisfactory quality, failure to make so ensuing in contractual liability and awards of amendss for any losingss suffered as a consequence of such breach, including those originating from harm to belongings, and more significantly, amendss for any resulting personal hurt.
This rigorous contractual liability for faulty merchandises meant that, in instances where a Claimant wished to action a merchandiser [ 4 ] for losingss originating from faulty merchandises sold, the function of Tort jurisprudence remained instead excess, claimants merely trusting on such an avenue where the marketer in inquiry had later become bankrupt, where they wished to trust on the longer restriction periods stipulated for claims of this sort, or where the claimant was in fact non a party to the sale contract, and as such was non, by virtuousness of the rule of contractual privity, entitled to action under the Sale of Goods Act 1979.
In contrast, where a Claimant wished to action a maker for losingss originating from faulty merchandises sold by an intermediary seller, the lone possible avenue available would be line of instance jurisprudence routing from the instance of D v S. Such liability was fault-based in signifier, instead than being rigorous, and as such was deemed to be out of line with the bing jurisprudence in this country. Such calls for reform are non surprising if one considers the fact that the UK was, at this clip, in the thick of a by and large consumer-driven economic market, concerned with consumer protection and the inequalities which had been identified as bing between the consumer and the corporation, and a society preoccupied with rectifying this instability.
At least four major reform proposals were put frontward between 1976 and 1985 ; viz. , the Strasbourg Convention, the Recommendations of the Scottish and English Law Commissions, the study of the Pearson Commission and the EEC Directive 85/374/EEC. Arguably, it was preponderantly the latter of these paperss, which compelled the legislative to take reform of makers merchandise liability earnestly, and two old ages subsequently, in 1987, the Consumer Protection Act was born, Part 1 of which purports to supply consumers with statutory rigorous liability protection from makers who make faulty merchandises for retail in the UK market place ; this provides such consumers with an alternate class of action from the fault-based liability established by the instance of Donoghue v Stevenson in the civil wrong of carelessness.
Before we begin to see how successful this Act was in accomplishing its purposes and what impact this piece of statute law has had on consumers and makers likewise, allow us foremost analyze the commissariats of the Act in some item: Part 1 of the Consumer Protection Act 1987 ; presenting strict tortious liability for faulty merchandises in the United kingdom: There are several facets of the statute law which we must turn to in order to determine its range. Part 1 of the Consumer Protection Act 1987 is designed to enforce liability on the manufacturer/ assembly program of a merchandise, and non on the provider, after all, there is already rigorous liability for such retail merchants under the implied footings of the Sale of Goods Act 1979.
S2 of the Act lists three classs of maker who may be apt under Part 1 of the Act. The first of these is the manufacturer of the merchandise, and ‘producer’ is defined under s1 ( 2 ) of the Act as: the individual who manufactured it ; in the instance of a substance which has non been manufactured but has been won or abstracted, the individual who won or abstracted it ; in the instance of a merchandise which has non been manufactured, won or abstracted but indispensable features of which are attributable to an industrial or other procedure holding been carried out ( for illustration in relation to agricultural green goods ) , the individual who carried out that process.”
Whilst this class seems pretty self-explanatory, it should be noted that where a merchandise causes harm due to a defect in a component portion of that merchandise, both the manufacturer of that constituent, and besides the manufacturer of the merchandise incorporating that constituent will be to the full apt for such harm under this Act. The consumer can take which individual to action, or can action both parties, although, by virtuousness of the philosophy of contributory carelessness, the entire amendss awarded will non transcend the value which would hold been awarded had merely one party been sued for the faulty merchandise, i.e. each manufacturer will pay a part of the amendss, the proportions of the several parts to be determined by the tribunal in conformity with the Civil Liability ( Contributions ) Act 1978.
The 2nd class of individual who can be found apt under s2 of Part1 of the Consumer Protection Act 1987 is the “own brander .” The Act defines such a individual as: “any individual who by seting his name on the merchandise or utilizing a trade grade or other separating grade in relation to the merchandise, has held himself out to be the manufacturer of that product.” It should be noted that this description is really similar to the diction contained in the EEC Directive 85/374/EEC. The range of this class if suspect is non every bit broad as it may at first appear to be ; after all, for a provider to keep themselves out as the manufacturer of their points, the labelling must do.
The consumer really believe that it was the provider themselves who manufactured the merchandise and who would believe, for illustration, that the St Michael trade name of Marks & A ; Spencer’s really produces the goods themselves, instead than undertaking a production company to make so on their behalf? Likewise, where a product-label provinces that the merchandise has been ‘manufactured for’ the company, or has been ‘selected by the company’ , this must needfully prevent the company from coming under the definition as contained in s2 of the Act, and besides hence from being sued under Part 1 of the Consumer Protection Act 1987.
The 3rd class of suspect contained within s2 of Part 1 of the Consumer Protection Act 1987, is the provider who has imported a merchandise from exterior of the European Union ; by virtuousness of s2 ( degree Celsius ) that importer will be apt for any losingss ensuing from any defects in that merchandise. I stated above that ‘S2 of the Act lists three classs of maker who may be apt under Part 1 of the Act’ , and besides that ‘Part 1 of the Consumer Protection Act 1987 is designed to enforce liability on the manufacturer/ assembly program of a merchandise, and non on the supplier.’ It should be noted that there is a 4th class of possible suspects contained in s2 of the Act, and this is a provider who, holding been approached by a consumer and asked to place the manufacturer of a merchandise which has been purchased by that consumer from that provider.
Has declined to supply such information, or has failed to make so within a sensible clip. Such a provider will be held apt as if he were the manufacturer. Whilst this seems contrary to any old impressions of tortious liability, this proviso is indispensable to the smooth operation of s2 and Part 1 of the Act in general ; if the consumer is unable to happen the individuality of the manufacturer, he would be unable to action for any defects. If it is the provider who has prevented the individuality of the manufacturer from being disclosed, so it seems merely just that the provider should be punished for interfering in the operation of this Act, and held apt. In pattern, all this subdivision will make is to guarantee that providers are prompt in their response to petitions from consumers sing the designation of the manufacturer in inquiry and besides more efficient in the maintaining of correct records refering to the makers of their goods, and as such, my old statements that ‘
S2 of the Act liststhreeclasss of maker who may be apt under Part 1 of the Act’ , and besides that ‘Part 1 of the Consumer Protection Act 1987 is designed to enforce liability on the manufacturer/ assembly program of a merchandise, andnon on the provider, ’ should still be considered to be a well right description of the current jurisprudence. n couldn’t signifier the capable affair of a claim under this piece of statute law, even though such information may be touchable in signifier An exclusion to this might be package ; the line between package and hardware being really hard to pull sanely ; for illustration, a modem can be package or hardware based ; if a maker of a hardware modem could be apt under this Act, so certainly so excessively could a manufacturer of the package version which performs precisely the same map.
Any individual can action as consumer under this Act if they have suffered any losingss as a consequence of a faulty merchandise. It is irrelevant whether or non the goods were really purchased by the claimant ; as the Act provinces, consumer includes “anyone injured by the goods or anyone whose belongings was damaged as a consequence of the defect.” There is no limitation on the sum of amendss capable of being sought for decease or personal hurt, as distinguishable from the European Directive, which imposes a bound of 70 million euros. Such a limitation in UK jurisprudence would be impractical. Sing amendss for losingss fluxing from belongings harm nevertheless, there are several restrictions which operate under this Act;
Of the Act stipulates that no losingss from any harm caused to the faulty merchandise can be sought under this Act, nor from any harm caused to any accoutrement which was supplied with the merchandise. Under s5 of the Act, no liability arises under this Act unless the amendss ( apart from involvement ) would be at least ?275. There does non look to be a convincing principle for this arbitrary figure, other than that it represents an sum below which most judicial proceeding canvassers in the UK would non urge shiping on a jurisprudence suit. Finally, s5 of the Act precludes liability for amendss ensuing from a merchandise which is non ‘ordinarily intended for private usage or is non chiefly so intended by the claimant. Obviously there must besides be a defect in the merchandise for liability to originate, desert holding been defined in Section 3 of Part 1 of the Act as being present where “the safety of the merchandise is non such as individuals by and large are entitled to expect.”
The fortunes that should be taken into history by the tribunal when finding whether or non this definition has been satisfied includethe mode in which, and the intents for which, the merchandise has been marketed, its get-up, the usage of any grade in relation to the merchandise and any instructions for, or warnings with regard to, making or forbearing from making anything in relation to the merchandise ; what might be moderately expected to be done with or in relation to the merchandise, and ; ( degree Celsius ) the clip when the merchandise was supplied by its manufacturer to another ; and nil shall necessitate a defect to be inferred from the fact entirely that the safety of a merchandise which is supplied after that clip is greater than the safety of the merchandise in inquiry. ”
In pattern, this criterion will be set by the tribunals, and does non depend upon public sentiment ; after all, in a litigious society, public outlook may be excessively high. For non-standard merchandises, i.e. those which are non in the signifier as intended by the maker, all the Claimant must turn out is that the merchandise was non-standard, and that the non-standard characteristic of the merchandise in inquiry was unsafe and responsible for the harm suffered. For standard merchandises, built-in dangers, such as the crisp borders of a cooking knife merchandise, should merely be protected against in so far as is sensible to make so in visible radiation of the grade of benefit enjoyed by the merchandise.
Would the benefit of holding a cheaper merchandise without the safety guard outweigh the benefit of holding greater safety at an increased monetary value to the consumer. Again, this value-judgement will be decided by the tribunals on a individual footing, and no preparation is offered by the Act to assist do this deliberation, and the ground for this is the frequently unquantifiable nature of the benefits involved in such hazard appraisals. Where hazards are non obvious to a consumer, so a standard merchandise may be deemed faulty on the simple fact that the maker did non supply a warning or instructions on proper usage of the merchandise. Again, there is no statutory guideline as to what grade of item in such instructions/warnings are indispensable, but a maker should mistake on the side of action to avoid liability for faulty criterion merchandises on this land.
S4 of the Act states that if the Defendant manufacturer can turn out that “the province of scientific and proficient cognition at the relevant clip was non such that a manufacturer of merchandises of the same description of the merchandise in inquiry might be expected to hold discovered the defect if it had existed in his merchandises while they were under his control.” The logical thinking behind this defense mechanism is clear ; it would wrong in both rule and pattern for concerns to be held apt for defects that they could non perchance have foreseen [ 15 ] . In the instance of A 5 National Blood Authority [ 16 ] it was clarified that this defense mechanism will merely use “if there is no cognition of the being of the hazard in a generic sense, and one time this cognition has been acquired, the maker produces at his ain hazard, even if it is impossible to place the person, non-standard merchandises in which that hazard is present.”
Other defense mechanisms available for a Defendant include where the defect in inquiry was in fact a demand by jurisprudence[ e.g. where the jurisprudence requires a constituent to be present, but the really presence of that constituent has lead to the merchandise being rendered faulty ] , where the Defendant did non provide the merchandise to anyone [ 18 ] [ i.e. the merchandise had ne’er been distributed amongst the public ] , where the merchandise in inquiry was supplied non-commercially[ e.g. the provider of a bar to a party would non be apt for defects in that bar ] , where the defect did non be in the merchandise at the clip of circulation [ e.g. defects that have arisen from sensible wear and tear of the merchandise ] and that ( vitamin E ) “the defect constituted a defect in a merchandise.
Which the merchandise in inquiry had been comprised AND ( two ) was entirely attributable to the design of the subsequent merchandise or to compliance by the manufacturer of the merchandise in inquiry with instructions given by the manufacturer of the subsequent product.” In theory, Part 1 of the Consumer Protection Act 1987 is one of the most of import reforms made to the jurisprudence of civil wrong in England and Wales. It purports to enforce rigorous non-fault based liability on manufacturers of faulty merchandises in line with the European Directive on Consumer Protection ( 1985 ) . In pattern nevertheless, we have seen that many defense mechanisms are available to such a manufacturer, defense mechanisms which in topographic points seem to re-impose a cogent evidence of mistake demand of a Claimant under this Act.
For illustration, the defense mechanism contained in s4 requires the Claimant to turn out that the manufacturer should hold known about the defect and the harm that it would do in visible radiation of the scientific cognition available to him at the clip of production. This seems more like standard civil wrong of carelessness cogent evidence demands instead than rigorous liability. I would reason that the impact on the jurisprudence is non every bit important as one might, prima facie, believe. The ‘strict’ liability, by virtuousness of the defense mechanisms available, no that far removed from the mistake demands of traditional civil wrong jurisprudence. I believe that there is grounds to propose that the lone purpose of this statute law was to convey UK jurisprudence in line with the demands of the 1985 European Directive of Consumer Protection. With this in head, the purpose has been satisfied.
The UK legislative antecedently refused three reform proposals bespeaking a rigorous liability attack to this country of jurisprudence, viz. , the Strasbourg Convention , the Recommendations of the Scottish and English Law Commissions and the study of the Pearson Commission , and merely changed the jurisprudence when ordered to by the EEC Directive. I think this groundss my above proposition, as does the reading of the Directive to integrate as many of the permitted/discretionary defense mechanisms available as possible, guaranting that our civil wrong jurisprudence is non radically changed by this new piece of statute law. If the purpose of the Act was to make rigorous liability, so it has failed. If the purpose was to follow with the European Directive 85/374/EEC in a manner that would non alter our preexistent civil wrong jurisprudence into something where makers would be held apt for things beyond their sensible control, so I feel the UK legislative has achieved this purpose laudably. It is the latter of the two decisions with which I shall agree.