327	6â Contributory negligence
	However, the producer of the final product would be liable in this situation as
	he has put a defective product into circulation.
	The second possibility occurs when the component manufacturer has pro-
	duced a component part to comply with instructions provided to him by the
	producer of the final product. In that situation, the design of the component is
	the responsibility of the final producer and not the component manufacturer
	who, presumably, will be contractually bound to produce components that
	comply with the requisite design. Consequently, if the component should prove
	defective because the design is unsuitable for the purpose for which the compo-
	nent is used, liability for it will lie with the final producer while the component
	manufacturer can claim the protection of the defence in section 4(1)(f)(ii). Of
	course, if the main producer can show that the design was satisfactory but that
	the component part in question did not comply with it, then the component
	manufacturer would be liable for a manufacturing defect.
	Professor Miller has raised an interesting point about the application of the
	defence to packaging.116 A product may be defective because the instructions
	for use are wrong and themselves pose the danger. In practice, the instructions
	to be included with and on the packaging will have been approved by the pro-
	ducer of the final product. As such, the second strand of the defence would
	seem to be available to the packer. However, if the instructions appear on the
	outer packaging, can it truly be said the defective component (the packaging) is
	‘comprised’ in the final product as required by section 4(1)(f)? On a strict inter-
	pretation of the wording of that subsection, there would seem to be a lacuna
	and that external packaging would not be covered. Arguably, however, this is
	playing semantics. Professor Miller is of the view that the wording of Article
	7(f) of the Product Liability Directive would cover this situation, and that sec-
	tion 4(1)(f)(i) would be interpreted to comply with it as required by section
	1(1) of the Consumer Protection Act 1987.
	Q12 Does the defence for component manufacturers provide a balanced
	approach between holding them liable for defective components while not
	holding them responsible for defects beyond their control?

6â Contributory negligence

As discussed previously when considering defences to claims under Part I of the Consumer Protection Act 1987, the rules relating to contributory negligence apply.117 Thus, where a defect is caused partly by a defective product and partly through the fault of the person who has suffered the injury, the Law Reform (Contributory Negligence) Act 1945 and the Fatal Accidents Act 1976 apply. Thus, when contributory negligence occurs, any damages awarded to the

116Miller and Goldberg, above n. 10, para. 13.109.

117Consumer Protection Act 1987, s.6(4).

328	Product Liability under the Consumer Protection Act 1987
	injured user are reduced by a percentage equivalent to the percentage responsi-
	bility that the user must bear for his part in the injury-causing event.

7â Recoverable damage

Not all damage caused to product users is necessarily recoverable under product liability, the parameters of recoverable damages being laid out in section 5 of the 1987 Act. As a basic premise, ‘damages’ is defined as being ‘death or personal injury or any loss of or damage to any property (including land)’.118 ‘Personal injury’ is defined for this purpose as including ‘any disease and any other impairment of a person’s physical or mental condition’119 and, as such, would include damages for nervous shock as long as the psychiatric damage suffered satisfied the relevant criteria. Psychiatric damage suffered by the injured user himself, the ‘primary’ victim, would be covered automatically while psychiatric damage suffered by a ‘secondary’ victim, such as a person who witnessed the incident, would need to satisfy the criteria laid down in White v. Chief Constable of the South Yorkshire Police.120 Pure economic loss is not recoverable.

Not all property damage is included and section 5 continues by specifying the various limitations to recoverable property damage. Thus, under section 5(2) no liability exists under the 1987 Act for any damage to the product itself. This is not unreasonable because damage of that type will be recoverable in contract under the Sale of Goods Act 1979 if the defect was caused by the product not being of a satisfactory quality and fit for the purpose for which it was to be used. If the injured product user purchased the product himself, he can bring an action in contract alongside his tortious claim in strict product liability for any other damage. By contrast, if the product was bought by somebody else, then clearly it is their choice as to whether to pursue a contract claim in respect of the damaged item.

Of more concern is the fact that section 5(2) goes on to restrict compensation in respect of ‘the loss of or any damage to the whole or any part of any product which has been supplied with the product in question comprised in it’. Thus, if a component proves to be faulty, the claimant has no claim under the 1987 Act in respect of the whole product if it has been damaged in the incident. Thus, for example, if a component part in a television is defective and causes the television to catch fire and be destroyed, the user cannot claim under the 1987 Act against the final producer or the component manufacturer for the loss of the set. The same would be true if a car is damaged in a crash because its brakes

118 Ibid. s.5(1).â 119â Ibid. s.45(1).

120[1999] 1 All ER 1. It was held in this case that for a secondary victim who has suffered psychiatric damage as the result of death or personal injury to another person to be able to recover compensation, he would need to demonstrate three things: that he had a close tie of love and affection with the person killed, injured or imperilled; that he was close to the incident in time and space; and that he perceived the relevant incident directly and did not merely hear about it.

329 7â Recoverable damage

are defective and the driver cannot stop the car safely. While the driver would be able to recover under product liability for any personal injury suffered in the accident, he would not have a claim in product liability in respect of the damage to the car and would have to pursue any claim in contract or negligence. Of course, both of these claims would be dependent on him being the owner of the car. If he is not, then the owner would pursue these particular claims.

An interesting anomaly in section 5(2) is that the ability of an injured user to recover compensation for a product depends on whether the faulty component comprised in it was supplied as part of the final product or is a replacement part. If the latter is the case, there is a strong argument for saying that the user can recover for any damage caused to the final product by the defective replacement component as the defective component was not comprised in the final product when it was supplied. In the example of the car given above, if the faulty brakes were the original ones supplied with the car, there will be no claim for damage to the vehicle if the brakes prove to be faulty. However, if the brakes have been replaced during the life of the vehicle and then prove defective, damage to the car would be recoverable under the 1987 Act although clearly there would be no claim for the replacement brakes themselves.

Section 5(3) specifies that liability is restricted to property that, at the time that it is lost or damaged, is of a type that is ordinarily intended for private use, occupation or consumption and is intended by the injured user to be used ‘mainly for his own private use, occupation or consumption’. It follows that business property is not covered and any claim in respect of such property would have to be pursued in negligence or contract. The first issue to resolve is whether the product can be described as one which is ‘ordinarily intended for private use or consumption’, a difficult line to draw when so-called migrating products such as cars, personal computers and some tools can be used properly for business use or private use, or indeed both. The use of the word ‘mainly’ in strand (b) of the subsection is crucially important in this context as it allows an element of subjectivity to be introduced into the claim by considering the main intention of the injured user, while recognising that he may use the product for more than one purpose.

Section 5(4) introduces a lower financial threshold for claims for property damage namely, £275.121 The purpose of this lower limit, as laid out in the Preamble to the Product Liability Directive, is to ‘avoid litigation in an excessive number of cases’. The net effect of the provision is that if the property damage is valued at £276 the user will have a valid claim in product liability, while if the property damage is £274 no claim exists and the user would have to pursue an action in negligence. The approach of Member States to the lower threshold has differed, with some countries not allowing users to recover the threshold sum itself but only the amount by which the damage suffered exceeds that amount.

121 The Product Liability Directive introduced a threshold of 500 ECU in Art. 9(b).