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In terms of the Act 'product' means any goods or electricity and includes a product which is contained in another product, whether by virtue of being a component part or raw material or otherwise and 'goods' which include among others, any substance, including food and drugs.
Thus products are very wide ranging. All consumer goods are included. They include washing machines, televisions, cars, boats, furniture, etc. Electricity is specifically included. Gas and water by their very nature are included.
Land and buildings are outside the Act, because they are immovable. However building materials such as bricks, wood, cement are included even though they are part of the land and building itself. The effect of this is that if there is a design fault no claim will lie under the Act. However if defective bricks cause the problem then a claim will lie under the Act.
A fitted kitchen and other fitted furniture do not escape the scope of the Act, as being fitted, they form part of the land and buildings.
It is probable that a computer program will not be covered by the Act though a computer program on a disk will almost certainly be covered by the Act.
Fruit, fish, vegetables, meat and wine are excluded since they are the 'produce of the soil, of stock-farming or of fisheries'. In order for these products to be included, they must have undergone an industrial or other process.
The Act states that 'Producer', in relation to a product, means:
A person who has held himself out to be the producer of the product is the own-brander. A visit to either Tesco or Sainsbury's will reveal whole shelves of examples. In order to qualify, a person must firstly put their distinguishing mark on a product and secondly hold out as the producer. The acid test is whether they hold themselves out as the producer.
It is in essence the importer who during the course of their business brings the product in from a place outside the Union.
The Act seeks to prevent a supplier escaping liability by failing to identify the producer. The situation is envisaged where a product is purchased which is defective and the supplier was not the producer. The section imposes liability on a supplier if certain conditions are fulfilled.
The first condition is that the victim must request that the supplier identifies one or more of the producers, own-branders or EU importers. The request must be made within a reasonable time of the damage arising.
The insolvency or otherwise of the producer, own-brander or EU importer is not relevant. The supplier becomes liable if they fail to comply with the request within a reasonable period. However it should be noted that it is sufficient for the supplier to identify the supplier to avoid liability.
The concept of supply is very wide. It includes the obvious such as selling, hiring out or lending. It also includes entering into a hire-purchase agreement to furnish the goods and the performance of any contract for work and materials to furnish the goods. There are a number of extra circumstances, which include providing goods in exchange for payment other than money or in giving goods as a prize.
The Act provides strict liability. This means that there is no requirement to prove negligence. All that is required is for the person to show that an injury resulted from a defective product. Liability is then payable in full. Other facts causing the damage will not reduce liability. The Act provides liability in respect of any defect.
The Act defines a defect as 'if the safety of the product is not such as persons generally are entitled to expect'. It is not relevant if a product was unfit or unsuitable for its intended purpose. The acid test is 'What are the public generally entitled to expect'?
In terms of the Act damages will be awarded where there is death or personal injury or any loss of or damage to any property, including land.
However in the case of loss or damage to property there are distinctive rules that apply and there are certain exclusions. There is no claim for the loss of the product itself but there is a claim for any damages it does. Any claim for the loss of the product will be covered by other legislation including the Sale of Goods Act 1979 and 1994.
The Act does not cover the situation where damage is caused within a commercial environment. It essentially deals with the private use of products. Damage caused to someone using the product in his or her occupation or profession does not fall within the Act.
Where an amount of damages is awarded, it must be greater than £275 including interest. The purpose of limiting the amount is to avoid or discourage small claims.
There is no definition of who may bring a claim under the Act. The Act provides that anyone who has suffered damage may bring a claim and will be awarded compensation.
The class of people who benefit is very wide. However the Act is intended to compensate the individual and not commercial firms or companies. The Act is outside and in addition to the tradition envelope of torts.
Clearly it is a defence if it cannot be shown that the defendant produced the product. You can succeed if they can show that whilst being the producer of a component within the defective product they did not produce the defective component.
You could successfully argue that you were a processor of the product but not its producer because the processing did not alter its essential characteristics. You will not be liable where you have branded the product unless you also hold yourself out to be its producer. If the claim is against an importer then it must be shown that the importer imported from outside the EU.
Furthermore a supplier may successfully defend the claim based on a request for identification of the producer if:
