Following on from Wilkes v DePuy International Ltd  EWHC 3096 (QB), the High Court has confirmed the approach to be taken when determining whether a product is defective under the Consumer Protection Act 1987 (“the Act”).
In Gee & Others v DePuy International Limited  EWHC 1208 (QB) (“the Pinnacle Metal Hip Litigation”), Mrs Justice Andrews OBE found that the Defendant’s product was not defective under the Act. The correct test to be applied was whether the product had an abnormal tendency to result in damage or harm, as compared with appropriate comparator products.
The judgment signals a continuing departure from the approach taken by Mr Justice Burton in A v National Blood Authority  3 All E.R. 289. Most significantly, it confirms that factors such as avoidability of the defect, cost of precautionary measures and the benefit of the product more generally are factors to be taken into account when assessing whether products meet an objective safety standard.
On 7 August 2017 the Food Standards Agency (FSA) and Food Standards Scotland (FSS) announced that 21,000 eggs imported into the UK from farms in Belgium and the Netherlands were contaminated with the pesticide Fipronil. The number of contaminated eggs imported into the UK is now estimated at 700,000 and around 70 different products containing eggs potentially contaminated with Fipronil have been recalled. Investigations into the incident in Europe are continuing.
The cost of the recalls has yet to be quantified but the losses (which will include the cost of the product recalls, business interruption losses, damage to reputation, and the settlement of any third party compensation claims) may be significant. Some parties will be looking to recoup their losses from other parties down the supply chain and, where relevant, their insurers.
Key takeaways that every business should know
Consumer Affairs Australia and New Zealand (CAANZ) has undertaken the first review of the ACL since its inception in 2011 and has released its final report. Herbert Smith Freehills have summarised below the key legislative proposals that all businesses should be aware of.
The "Fitness Check"
The European Commission has conducted a "Fitness Check" of six key consumer protection and advertising protection directives:
- The Misleading and Comparative Advertising Directive (2006/114/EC) – which prohibits advertising that misleads traders and regulates comparative advertising.
- The Unfair Commercial Practices Directive (2005/29/EC) – which prohibits misleading and aggressive commercial practices.
- The Price Indication Directive (98/6/EC) – which deals with the indication of the selling price and the price per unit of measurement of products offered to consumers.
- The Unfair Contract Terms Directive (93/13/EEC) – which protects against the use by traders of standard contract terms which create a significant imbalance in the parties' rights and obligations to the detriment of the consumer.
- The Sales and Guarantees Directive (1999/44/EC) – which sets the rules (and remedies) for when products are in conformity with the contract and deals with commercial guarantees.
- The Injunctions Directive (2009/22/EC) – which enables injunctions to be obtained if a trader’s practice breaches EU consumer law.
In this article, we present a summary of significant products liability cases from October 1, 2015, to September 30, 2016. Our article covers a range of developments concerning failure to warn claims, the exercise of personal jurisdiction, federal preemption, expert testimony as to causation, the learned intermediary doctrine, and class actions.
In a landmark judgment on the meaning of "defect" under the Consumer Protection Act 1987 ("the Act"), Mr Justice Hickinbottom in the High Court case of Wilkes v DePuy adopted an objective test for safety by reference to what the public at large are entitled to expect of the product and departed in a number of respects from the approach taken by Mr Justice Burton in A v National Blood Authority ("A v NBA"), over 15 years ago.
In January 2017 the UK Government published its response to the views received following its consultation on proposals to support Automated Vehicle Technology ("AVT") and Advanced Driver Assistance Systems ("ADAS"). The project is aimed at overcoming domestic regulatory issues that might be encountered by British citizens and businesses.
The Court of Appeal has upheld a decision of the Commercial Court that found an insurer could not rely on a notification condition precedent to avoid liability under a public and product liability policy. The judgment in Zurich Insurance PLC v Maccaferri Limited  EWCA Civ 1302 confirms the helpful guidance provided by the Commercial Court on the construction of phrases commonly seen in notification provisions in liability policies.
Read our full bulletin on this case here.
The Court of Appeal has confirmed that where an end user has knowledge of the defects in a product, it is not able to bring a claim for any subsequent loss resulting from that defect. It held that an end user company would be deemed to have knowledge even where its senior managers were not aware. It is sufficient that employees entrusted with the task of maintaining and operating the defective equipment in a safe manner had such knowledge: Howmet Limited v Economy Devices Limited & Ors  EWCA Civ 847.
In this article, published in Law Journal Newsletters, we consider who will be held liable if objects created through the use of 3D printing technology, and distributed to consumers and other users, turn out to be defective and unreasonably dangerous from the perspective of United States law as well as the regulatory environment in the United Kingdom.