319	5â Defences
	that the plaintiff had failed to demonstrate this increased risk and that the
	evidence of expert witnesses and epidemiological studies confirmed that the
	probability was that there was no increased relative risk in using this third
	generation pill.
	Q9 Consider the relationship between proof of defectiveness and the need to
	prove causation.

5â Defences

The Consumer Protections Act 1987 has introduced strict product liability and not absolute liability. The former allows for appropriate defences to be made available to the defendant while absolute liability would not allow any such concession. The use of strict liability in consumer law is common to both civil law and criminal law, where the imposition of strict liability offences is mitigated by the use of statutory defences, the most significant of which is the due diligence defence. This allows the defendant to avoid criminal liability by proving that he took all reasonable precautions and used all due diligence to avoid the commission of the offence.88

The six statutory defences to a product liability claim are to be found in section 4 of the 1987 Act. Five of them are relatively straight-forward, while the sixth, the development risk defence, is considerably more complex and will be discussed in greater detail below.

(a)â Compliance with a mandatory standard

The first defence is one that is most unlikely to occur in practice. Section 4(1)(a) provides that it is a defence to show that the defect is attributable to compliance with any requirement imposed by or under any enactment or Community obligation. Thus, if the injury-causing defect is directly attributable to compliance with a mandatory standard, the defendant will not be held liable. However, this is quite a narrow defence, as the defendant must demonstrate that the defect is a direct and unavoidable consequence of his compliance with the legal enactment. If it is possible for him to comply with the enactment without the defect occurring by, for example, changing his production process, the defence will not apply. The whole tenor of the defence is that the defendant was forced to market a defective product. Naturally, this is most unlikely to happen as the whole raison d’âêtre of safety regulations is to promote and ensure the production of safe products, so the likelihood of a safety regulation actually causing a

88 The relevant offences are contrary to General Product Safety Regulations 2005, reg. 20. For current purposes, the most pertinent example of the due diligence defence is to be found in ibid. reg. 29, which provides a defence for persons charged with offences under those Regulations relating to the supply of unsafe goods.

320 Product Liability under the Consumer Protection Act 1987

defect is remote, to say the least. The producer remains liable for any defect in any aspect of the product that is not covered by the regulatory requirements. It must also be noted that the defence only covers compliance with mandatory standards and thus a defect occasioned by compliance with a voluntary standard, such as a BSI Kitemark, will not be covered.

(b)â Product not supplied by the defendant

The second defence is that the defendant did not supply the product to another person. This encompasses two situations. The first is where the producer, having produced the product, decides not to market it. This might be because the item contains a manufacturing defect and has failed the quality control process or, alternatively, it could be that the product has been in storage and would now be deemed to be defective because of safety developments that have occurred during the storage period. In either instance, the product would be classed as defective if the producer was to put it into circulation and, hence, he would be liable for any injuries suffered by a user of that product. Having made his decision not to put the product into circulation, the responsibility is on the producer to ensure that the product is destroyed and cannot find its way to the market. Nonetheless, there are two ways in which it might still reach the market, one of which will render the producer liable. Assuming that he is an employer and not a sole trader working alone, the producer will be liable for the actions of his employees during the course of their employment. It follows that if an employee allows a product to be put into circulation, even contrary to the instructions of the producer, the latter will be responsible as supply will have occurred, even if accidentally or unintentionally. In the event of an unintended supply such as this, the producer should arrange for a product recall as soon as possible, thereby limiting the possibility of a user being injured and hence limiting his exposure to damages in respect of such an injury.89 The other way in which defective goods might reach the market despite quality controls by the producer and his decision not to market them, would be if they were stolen from his factory prior to their destruction. In practice, this is probably the less likely of the two possibilities but theoretically could happen. In this situation, the producer would not be responsible as clearly he had no control over the circulation of the product.

The second, and arguably more common, situation in which the defendant could validly claim this defence will be if he did not produce the goods at all. There is a ready market for cheap counterfeit goods, from which no producer is

89 If a producer knows that he has put unsafe goods into the market, he is obliged to inform the relevant enforcement authority in writing of that fact and the action that he has taken to prevent risk to the consumer and, if relevant, the identity of each Member State in which, to the best

of his knowledge, the product has been supplied or marketed: see General Product Safety Regulations 2005, reg. 9(1). A failure to comply with this requirement is an offence under ibid. reg. 20(2). If the producer fails to arrange for a product recall, the enforcement authority can order him to do so under ibid. reg. 15.

321	5â Defences
	exempt. Any high street name or, more particularly, designer label is liable to be
	copied by a counterfeiter who will then supply the product through markets at a
	knock-down price.90 Anyone can wear a fake Rolex watch or carry a fake Gucci
	handbag if they so choose.91 If a counterfeit product is defective and causes an
	injury to the user, the genuine producer will not be liable and will be able to
	raise a defence under section 4(1)(b). Theoretically, the producer would have a
	claim in passing off against anyone producing counterfeit goods that confuse a
	purchaser as to their true origin but, in practice, such a claim would generally
	be pointless, both in terms of the ability to pursue the counterfeiter successfully
	and since purchasers buying cheap counterfeit goods often do so knowingly
	and have not been misled.
	(c)â Supply otherwise than in the course of a business
	The third defence is designed to protect private sellers. It requires both that the
	only supply by the defendant was ‘otherwise than in the course of a business’92
	of that person and, further, either that section 2(2) does not apply to him or
	only applies to him in respect of things done without a view to a profit. This
	means that any voluntary non-profit-making organisation can claim the pro-
	tection of this defence. This allows bodies such as the Women’s Institute or the
	Scout movement to be able to produce and sell items for the purpose of fund-
	raising to support their organisations without falling foul of the requirements
	of the 1987 Act. The position of charities is arguably more precarious, as their
	raison d’être is to make money, although, as it is ploughed back into the cause
	for which they are raising the funds, it can be argued that they are not truly
	acting ‘in the course of a business’ as they are not sharing profits among share-
	holders or other owners of the organisation.93 The phrase ‘in the course of a
	business of that person’s’ implies a degree of ownership and control over the
	enterprise in question.94 Consequently, employees can also claim the protection
	90	The person producing the counterfeit goods could be held liable for a criminal offence under
		the Trade Marks Act 1994. It might also be an unfair commercial practice under the Consumer
		Protection from Unfair Trading Regulations, SI 2008/1277, reg. 5(3)(a), breach of which is an
		offence under ibid. reg. 9. See Part 5 for a full discussion of unfair commercial practices.
	91	If a consumer is found in possession of counterfeit goods, enforcement staff in France and Italy
		can seize the counterfeit goods, with the consumer then being liable to pay a fine double the
		value of the real item. Thus, if a consumer is found to be carrying a counterfeit handbag, which is
		a copy of a handbag that retails at €1,000, the consumer is liable to a fine of €2,000 in addition to
		having the fake bag seized. BBC News, 22 August 2009.
	92	A business is defined for this purpose as including ‘a trade or profession and the activities of a
		professional or trade association or of a local authority or other public authority’: Consumer
		Protection Act 1987, s.45(1).
	93	Professor Miller comments that organisations such as universities, schools, nursing homes and
		hospices may be able to satisfy the requirement that any application of s.2(2) of the 1987 Act to
		them is otherwise than with a view to a profit. This would allow them to claim the protection of
		the defence in s.4(1)(c). See Miller Goldberg, above n. 10, para. 13.12.
	94	This phrase would be similar in effect to the phrase ‘in the course of a business of his’ used
		elsewhere in consumer protection legislation and would be construed accordingly.

322		Product Liability under the Consumer Protection Act 1987
		of this defence as the business within which they work would not be classed as
		theirs for this purpose, and thus any supply by them would not have been made
		‘in the course of a business of that person’s’. As regards the owner of the busi-
		ness, the issue will be whether the supply in question was within the course of
		that business, as to which the decision in Stevenson v. Rogers95 is pertinent, the
		thrust of that decision being that any activity undertaken by the business will
		be deemed to be in the course of that business even if it is the first such transac-
		tion. The borderline between businesses and hobbies is also relevant, as hobby-
		ists benefit from the protection of the defence while businesses do not. There is
		no hard and fast rule about when a hobby becomes a business, as is evidenced
		by the difficulties faced by the courts in deciding criminal liability under the
		(now, largely defunct) Trade Descriptions Act 1968.96 The balance is always a
	delicate one to draw, in which facts will alter cases. Some useful examples on the
	point were provided by the Joint Law Commission Report when distinguish-
	ing between a man who sells apples to his neighbour as opposed to a small-
	scale market gardener or, equally, a woman who makes home-made jam for the
	church as opposed to someone providing home-made teas for tourists during
	the summer.97 A hobbyist will not have acted in the course of a business of his
		and, although he might technically be a producer within the meaning of section
		2(2), he will attract the protection of the defence as his activities were under-
		taken otherwise than with a view to a profit.
		(d)â Defect not present at the relevant time
		The fourth defence, contained in section 4(1)(d), is triggered when the defend-
		ant can demonstrate that the defect did not exist in the product at the relevant
		time. The relevant time for this purpose means the time at which the produ-
		cer, own-brander or first importer supplied the product to another person.98 In
		respect of claims against any section 2(2) defendants, this is the logical point to
		choose as it would be totally unreasonable, not to say inequitable, to attempt
		to hold them liable for a defect that arose after the product left their control.
		It might be, for example, that the defect has been introduced into the product
		through inadequate storage by someone further down the chain of distribution.
		However, the same time-frame is used when the defendant is not the producer,
		own-brander or first importer but some other person, such as a distributor or
		retailer who falls within section 2(3). This means that those persons cannot be
	95		[1999] QB 1028.
	96		See, e.g., Blakemore v. Bellamy [1982] RTR 303. The remaining major offences under s.1 and s.14
			of the Trade Descriptions Act 1968 were repealed and replaced by the Consumer Protection
			from Unfair Trading Regulations 2008, SI 2008/1277.
	97		Law Commission and Scottish Law Commission, Liability for Defective Products, Law Com. No.
			82, Scot Law Com. No. 45 (Cmnd. 6831, 1977) para. 43, as referred to in Miller and Goldberg,
			above n. 10, para. 13.12.
	98		Consumer Protection Act 1987, s.4(2).

323	5â Defences
	held strictly liable for any injuries caused by a defect in the product that arose
	after it left the producer, own-brander or first importer and, as such, cannot be
	held strictly liable in respect of injuries caused by a defect for which they are
	themselves responsible, an interesting lacuna in the protection provided by the
	statute. In this scenario, the injured user is left without any claim in strict liabil-
	ity and will be forced to pursue any claim that he may have against the retailer,
	distributor, etc. in the tort of negligence, with all the difficulties that involves
	and which strict liability under the 1987 Act was intended to circumvent.
	Q10 Analyse whether the first four statutory defences provide an appropri-
	ate level of protection for innocent defendants who are being sued for alleged
	breaches of product liability requirements.

(e)â Development risk defence

Without doubt, the most significant and contentious defence in the 1987 Act99 is the development risk defence contained in section 4(1)(e), which provides:

that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control.

As previously discussed,100 the UK government was taken to the European Court of Justice over the wording of this defence as it differs to a significant extent from the wording in the corresponding provision of the Product Liability Directive,101 Article 7(e) of which reads:

that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered.

The distinction is clear, the UK version of the defence referring to the knowledge ‘of producers of products of the same description’ in a way that the Directive does not. The suggestion was that this limits the potential liability of the producer by allowing him to use the knowledge of similar producers as his touchstone rather than the knowledge available within the wider community. Nonetheless, the ECJ decided in EC Commission v. United Kingdom102 that

â 99

100

102

Equally, it is the most contentious defence in the Product Liability Directive and was ultimately included in the Directive to satisfy the demands of some of the Member States, including the United Kingdom, and thereby allow the Directive to be passed. The development risk defence was one of the three derogations originally contained in the Directive allowing Member States to choose whether to allow a development risk defence within their own jurisdictions. The United Kingdom chose to include it. For a fuller discussion of this aspect of the topic see Part 4 Chapter 1.

See Part 4 Chapter 1â 101â Product Liability Directive Art. 7(e). C-300/95 [1997] ECR I-2649.

324 Product Liability under the Consumer Protection Act 1987

the case had not been proven and that the development risk defence as worded in section 4(1)(e) of the 1987 Act does comply with the Directive, particularly given that, by virtue of section 1(1) of the Act,103 the UK courts are obliged to interpret the 1987 Act in accordance with the requirements of the Directive.

Central to the defence is the requirement to establish what scientific and technical knowledge was available during the time that the product was under the control of the producer and whether that knowledge would have allowed the defect in the product to be identified. If not, and the defect is truly unknowable, then the producer will not be held liable for any injuries that it may cause.

Assessing whether the producer has satisfied the defence should be objective as it identifies the knowledge available to a reasonably diligent producer and then determines whether the producer in question matches up to that standard. However, it has been suggested that this is not necessarily the case, as the approach encompassed within the UK defence could mean that different standards might be expected from different producers, which, if true, would render the defence subjective.104

The court in A v. National Blood Authority opined that the state of scientific and technical knowledge ‘is the most advanced available (to anyone, not simply to the producer in question), but it must be “accessible”’.105 This raises two issues: what constitutes scientific and technical knowledge and when is it deemed to be accessible. As to the former, one would assume that scientific and technical knowledge would include information published in leading academic and professional journals for the relevant profession or industry, but what of lesser or foreign journals?106 Further, it is reasonable to assume that private documents belonging to individual companies would not be included, as they would not be in the public domain and thus would not form part of the body of scientific and technical knowledge available to the producing community. The same would be true of the results of experiments done in a private laboratory and included only in internal reports. The court in Abouzaid v. Mothercare (UK)

Ltd107 held that accident reports would not be classed as scientific and technical knowledge, Pill LJ commenting that ‘The defence contemplates scientific and technical advances which throw additional light, for example, on the propensities of materials and allow defects to be discovered.’108 This judgment gives a clear steer as to the type of information that will be considered as relevant and that which will fall outside the requisite standard.

103Consumer Protection Act 1987, s.1(1) reads ‘This Part shall have effect for the purpose of making such provision as is necessary in order to comply with the Product Liability Directive and shall be construed accordingly.’

104See Howells and Weatherill, above n. 19.

105[2001] 3 All ER 289, para. 49(i).

106Such as in the much quoted Manchurian example set out in EC Commission v. United Kingdom, paras. 23–4 and referred to in A v. National Blood Authority, [2001] 3 All ER 289, para. 4(i). See also M. Griffiths, ‘Defectiveness in EC product liability’ (1987) JBL 222, 225.

107 [2000] All ER (D) 2436.â 108â Ibid. para. 29.

325	5â Defences

Accessibility is a fraught issue but central to the defence. In addition to issues such as those mentioned above about private documentation that is not available to the general public, it raises the key concept of how wide and how deep the producer needs to research to satisfy the relevant standard such as to fall within the ambit of the defence. This would raise issues such as the geographic location of the information109 and the practicalities and economic costs of recovering and utilising it. This might give rise, for example, to recognising:

a conception period for the product. This period relates to the unavoidable time delay between initial discovery of a safer design and the time when the implementation is possible. It is unrealistic to imagine that a new idea could be implemented overnight. It is important though to restrict any permissible conception period to a reasonable length and not allow it to become liberal or even excessive.110

Concerns have been raised as to whether the defence may become subjective depending on the size and financial resources of an individual producer. A small company employing a few men and with a small production output will not have the same resources available to it as a large multinational company. However, it is questionable whether it is appropriate to take account of such factors if the rationale of the 1987 Act is to provide strict liability protection for the injured user. The background of the defendant should be irrelevant.

This highlights the real issue with the development risk defence, namely, that it effectively re-introduces negligence by the back door. The underlying rationale of the 1987 Act (and the Product Liability Directive) is the introduction of strict liability for product-related injuries, eschewing any need to consider the activities or personality of the producer. All that should be relevant is the existence of the defect, the causal link and the damage suffered by the plaintiff. However, the development risk defence expressly analyses and assesses the actions of the producer by reference to the actions and knowledge base of other producers of similar products, an approach more in line with negligence. The defence considers the blameworthiness of the defendant at the expense of the strict liability rights of the injured user. It is worth remembering that both the Pearson Commission111 and the Joint Law Commissions112 were against the introduction of a development risk defence because of the negative impact on the rights of the injured user, the Pearson Commission commenting in a much-quoted remark that the exclusion of development risks from any strict liability regime:

would leave a gap in the compensation cover, through which, for example, the victims of another Thalidomide disaster might slip.113

109As in the much quoted Manchurian example, see above n. 106.

110Griffiths, above n. 106, at 225.â 111â Pearson Report, above n. 40.

112Joint Law Commission Report, above n. 97.

113Pearson Report, above n. 40, ch. 2, para. 1259.

326		Product Liability under the Consumer Protection Act 1987
			As yet, there has been very little case law on the practical application of the
		defence. The court in Abouzaid v. Mothercare (UK) Ltd rejected an attempt by
		the defendant to use the defence, while in A v. National Blood Authority, the
		court held that once the risk was known, the development risk defence is no
		longer applicable anyway. As the defendant in the case was aware of the risk
		that the blood might be contaminated with Hepatitis C, the development risk
		defence ceased to be applicable. The fact that there was no test that allowed him
		to ascertain whether any individual item was defective was not relevant. Once
		the possibility that the product may be defective is known, the producer sup-
		plies it at his own risk.
		Q11 Consider whether the inclusion of a development risk defence is accept-
		able in a strict product liability regime. Does it rightly protect producers from
		liability for unknowable defects or does it undermine the whole purpose of
		strict liability?
		(f)â Component parts
		The final defence is to be found in section 4(1)(f) and deals with the issue of
		component parts. A component producer will be liable for injuries caused by
		one of his component parts proving to be defective within the meaning of sec-
		tion 3 of the 1987 Act. However, it is in the nature of components that they are
		incorporated into other products and this gives rise to the possibility that the
		component may prove to be faulty not because of any inherent defect in it but
		because of the way that it has been incorporated into the main product. Section
		4(1)(f) provides the component producer with a defence when the defect in the
		component constitutes a defect in the final product and one of two situations
		has occurred.
			The first is that the defect in the component is wholly attributable to the
		design of the final product, the implication being that the component has been
		used incorrectly in the main product. Thus, for example it may be that the com-
		ponent has been expected to withstand stresses greater than those for which
		it was designed,114 a problem that may be particularly pertinent with compo-
	nents such as screws, which can be used in a wide variety of different products.
	The essence of this strand of the defence is that a component which would have
	functioned perfectly if used correctly, has failed in usage due to being incor-
	porated into a product for which it was not designed. The component produ-
	cer would not be liable in this instance, as the product was not defective at the
	time that he supplied it,115 the defect being introduced after it left his control.
	114		M. Griffiths and I. Griffiths, Law for Purchasing and Supply (3rd edn, Pearson Education Ltd,
			Harlow, 2002).
	115		In this instance, he would be able to claim a defence under Consumer Protection Act 1987,
			s.4(1)(d), namely, that the defect did not exist at the relevant time, that time being when he
			supplied the component to the producer of the final product.