Ruff (1995) stated that the criminal liability of producers, distributors and suppliers of unsafe products is covered under Part II of the Consumer Protection Act of 1987, which has mandated a general safety requirement. The producer, distributor or supplier of unsafe products incur criminal liability for failure to exercise due diligence. The law is strict but the criminal liability can be dispensed with after showing that they exercised due diligence and have reasonable grounds to believe that the products passed the general safety test (Ruff, 1995). Aside from this, the General Products Safety Regulations 1994, accordance to the European Directive of 1992, enforced the strict criminal liability against the product producers to prevent them from placing in the market any unsafe product that cause harm to consumers. However, based on these laws, the criminal liability imposed upon producers and suppliers does not effectively give the consumers the remedy to file for personal claims unlike in civil law. Under the provisions of the Consumer Protection Act of 1987, any person who shall be injured brought about by defective products shall have the right to sue for damages.
Before the enactment of the Consumer Protection Act, injured consumers have the mandatory requirement to prove that the producer or the manufacturer is guilty of negligence before they are allowed to claim for damages (Consumer Affair Directorate, 2001). However, when the Consumer Protection Act became effective, the injured parties are no longer required to present proof of negligence on the part of the producers or manufacturers. The term product liability was given to the applicable laws which affected the rights of consumers for defective products. In connection with this law is the Sale of Goods Act of 1979 which gave the right for any injured individual to sue the manufacturer on the basis of a defective product. The basis of such right rests on the concept of breach on the part of the manufacturers or producers for failure to deliver products of satisfactory quality. Ford and Stewart (2003), the Consumer Act deals with consumer safety.
The purpose of the law is to protect the consumers against defective products which do not meet the reasonable level of safety required under the law. It affords the consumers the right to sue for damages they have suffered after using the product. On the other hand, the General Product Safety Regulations of 1994 is another piece of legislation that involves consumer safety, and partly repealed the Consumer Act. Business owners are expected to manufacture products or goods that reach the reasonable level of safety that will not cause harm to its consumers. At the same time, the business owners have the obligation to provide the relevant information to the consumers regarding the risk involved in the use of their products (Ford and Stewart, 2003).
In addition, in the contract of sale, the buyer and the seller have their respective obligations to complete the transfer of ownership of the goods. The law provides under Section 14 (2) of the SOGA, mandated that products or goods that are being sold in the ordinary course of business should be of satisfactory quality. Dabydeen (2004) stated that it is expected that the quality of goods and products must comply with a certain level of fitness, which starts from the appearance, until the finish of the goods and ensure that they are safe for use and durable and free from any minor defects. McCormick and Papadakis (2003) stated that the theory on Products Liability Doctrine resulted from the development of a strict products liability theory of recovery.
The standards of care on the part of the manufacturer, producer and distributor of goods shall be liable for negligence, breach of warranty standard and a strict liability standard for failure to deliver products that are of satisfactory quality. The law does not require the consumers to prove negligence or breach of warranty in the process of recovering damages on the basis of products liability (McCormick and Papadakis, 2003). On the basis of products liability, there is a need to define what defective product is in simple terms. The Consumer Affairs Directorate (2001) defines a defective product as one where the safety of the product is inadequate which the consumers are not entitled to expect. Based from this explanation, the law requires that the objective test must be applied in the determination of defectiveness of a product that has the tendency to cause damage or injury to its users.
The consumers should be apprised of what to expect before using a particular product. It is the duty of the manufacturer, distributor and producer to provide instructions and warnings about the product and what might reasonably be expected of such product (Consumer Affairs Directorate, 2001). In the case of Grant v Australian Knitting Mills (1936), the High Court held that the retailers were liable for the damage suffered by the appellant. In this particular case, the buyer relied on the product that was displayed before him on the store counter. The appellant was satisfied by the appearance of the garment that he bought and he had no reason to doubt that the concealed presence of sulfite will render the garment unsuitable for use. Hence, the injuries suffered by the appellant should be compensated for failure of the retailers to provide a warning that their garments contained chemicals that can irritate the human skin.
The decision in the Grant case was echoed in the subsequent case of Beale v Taylor (1967), where the High Court held that the buyer shall have the right to claim for damages for failure of the seller to provide the true description of the car. In this particular case, the buyer relied on the appearance of the car and what it purports to be, without expecting any defect in the car. Here, the seller failed to provide the actual description of the car being sold which was a combination of two models. Therefore, the failure of the seller to give an accurate description of the vehicle being sold made the seller liable for damages. In the event that the consumers incurred damage or harm by using the defective products, they have the right to sue for compensation for personal injury or death. The law does not provide any limitation on the liability of the producer or manufacturer of the goods. However, it shall be the responsibility of the consumer to present that on the balance of probabilities, the injury incurred was brought about by the defective product (Consumer Affairs Directorate, 2001).
While the case of Donogue vs. Stevenson (1932) provides that negligence on the part of the manufacturer is present, regardless of the fact that there is absence of any pre-existing contractual obligation between the manufacturer and consumer. The right of the consumer to file for damages is on the ground that the manufacturer owes a duty of care to the consumer. As part of the duty, the manufacturer has to ensure that the product is safe for use and will not cause any harm or injury to the consumers. Any injury suffered by the consumer shall make the manufacturer liable for damages for breach of duty. The duty of care hinges on two tests involving reasonableness and proximity (Harpwood, 2009). The claim for damages is grounded on the “neighbor principle” founded on principle of that the manufacturers must have reasonably foreseen that neighbors will be injured by their act or omission.
Harpwood (2009) stated that the neighbor principle is considered a device to extend the scope of the tort of negligence on the part of manufacturers and producers. As a result, the manufacturers are mandated by law to improve their mechanisms to control the quality and fitness of their products. However, based on common law, the operation of the doctrine of “Res Ipsa Loquitor”, which literally means that the “thing speaks for itself” had made it impossible for the manufacturers to escape liability on the basis of the Consumer Protection Act. This view has been supported in the work of Harpwood (2009). McCormick and Papadakis (2003) stated that consumers can claim for damages based on three fundamental elements that should be present.
The first element is the duty of care that the manufacture owes to the consumers; The second element is that the manufacturer has breached that duty; and the last element is that the causative connection was established between the breach of the duty and the injury or damage borne by the consumer or plaintiff (Harpwood, 2009). Hence, on the basis of the “neighbor principle”, consumers can file for damages against the producers or manufacturers of defective goods. The rights of consumers are well-entrenched under the Consumer Protection Act, General Products Safety Regulations 1994, and the Sale of Goods Act (SOGA). The consumers are entitled to enjoy product that are good and satisfactory quality and devoid of any defects. In addition, McCormick and Papadakis (2003) state that there are three theories to establish product liability which are: breach of warranty theory, strict liability theory and the negligence theory.
The most prevalent theory is the negligence theory of liability, which was derived from the common law of torts. The theory refers to the civil wrong that was caused to a person and the remedy is to claim for damages. The producers, distributors and manufacturers are compelled by law to observe a standard of care in order to avoid any harm or injury to the consumers. In the event the consumers suffer injury as a result of using a particular product, they shall be awarded with damages. Manufacturers are expected to observe a level or degree of care before they circulate their products in the market. On the basis of breach of warranty, the consumer is not required by law to prove that the manufacturer has performed negligence since the basis of the breach is on the contract and not on the principle of tort (McCormick and Papadakis, 2003). While the strict liability theory serves as a remedy to claim damages on the basis of product liability on a wider spectrum.
The theory provides that a manufacturer’s liability for damages is founded on the defective product which resulted to injuries borne by the consumer. Thus, any unsafe product placed in the market by the manufacturer will result to a corresponding liability. McCormick and Papadakis (2003) stated that the reason of the law in imposing liability without proving the fault of the manufacturers is to encourage them to circulate only safe in the market in order to avoid paying costs for injuries on the part of the consumers. Based on the tort of negligence, the consumer is entitled to receive damages founded on the tort of negligence for injury caused by defective products. The concept of tort law shall give right to the consumer to recover damages from the manufacturer, distributor or producer. Cooper-Stephenson and Gibson (1993) stated that the rationale in granting the injured party the right to file a case for tort of negligence is to compensate such party for the damages endured.
The civil law in UK has provided the consumers effective remedies to file for redress in the event that they sustain damages from defective products in the market. Although the Consumer Protection Act of 1987 imposes criminal liability on producers, distributors and suppliers of unsafe products, criminal law only punishes the manufacturers and producers for non-compliance with the general safety requirement. The producers, distributors or suppliers of products have expanded their means for quality control to avoid criminal liability. Hence, the imposition of penalty on the manufacturers based on criminal law has served as deterrence for possible personal injuries of consumers.
Ruff (1995) stated that although the law is strict, criminal liability can be avoided on the part of producers and manufacturers after establishing the exercise of due diligence to ensure the safety of the product. As a result, the manufacturers improved their mechanisms to control the quality and fitness of their products in order to prevent liability (Harpwood, 2009). In sum, criminal liability has discouraged the manufacturers to commit the tort of negligence by making sure that they only produce products that are safe for consumers. Unlike in civil law, the consumers can file a claim for damages against manufacturers on the basis of three laws such as the Consumer Protection Act of 1987, General Products Safety Regulations of 1994 and the Sale of Goods Act (SOGA) of 1979 which provided a remedy for any injured individual to file a case against the manufacturer on the basis of a defective product.
This gives the consumers the right to initiate actions on their own personal capacity without the need to prove the negligence on the part of the manufacturer. However, in criminal law, it is the state that will initiate the action against the manufacturers for placing unsafe products in the market to the detriment of the public. Based on the above discussions, it has been presented that product liability under the civil law gives the consumers better remedies to for more effective redress such as the right to claim for damages against the producer, manufacturer or distributor of defective goods for failure to ensure product safety. The purpose of the law is to give protection to consumers for injuries they incur from unsafe products in the market and to prevent possible abuses of manufacturers and producers.
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