Chapter 11Business and the law of tortDamage (s 5)
The damage for which compensation is recoverable
under the CPA 1987 is defined as death, personal injury
or damage to any property (including land). The right of
recovery in respect of property damage is restricted.
There is no liability for damage to the product itself or
to any product in which it was comprised. No claim can
be brought for property damage if the amount claimed
is less than £275. Furthermore, a claim for damage to
property can only be made in respect of property ordin-
arily intended for private use, occupation or consump-
tion and intended by the claimant mainly for his own
private use, occupation or consumption.Defences (s 4)
The following defences are available to an action under
the CPA 1987:1 The defect is attributable to compliance with UK
legislation or EC obligations. The defence does not
extend to compliance with, for example, British
standards.
2 The person proceeded against did not at any time
supply the product to another, e.g. where the product
is an experimental prototype which is stolen by a rival.
3 The product was not supplied in the course of a busi-
ness or for profit, e.g. a home-made product given as
a birthday present.
4 The defect did not exist in the product at the relevant
time.
5 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. This is the controversial ‘development risks’
defence. Under the EC Directive the adoption of such
a defence was optional. The British government
justified inclusion of the defence on the ground that
to impose liability would stifle innovation and make
British industry less competitive. Opponents of the
defence argue that it seriously weakens the prin-
ciple of strict liability, so that the victims of another
Thalidomide-type disaster would still have great dif-
ficulty establishing liability. Doubts about whether
the defence, as it is worded in the CPA 1987, com-
plied with the requirements of the EC Directive were
resolved in 1997 when the European Court of Justice
dismissed an application by the European Commis-
sion that the UK had failed to properly implement the
provisions of the Directive in relation to this defence
(Commission of the European Communitiesv UK
(1997)).
6 In the case of a component or raw material, it was
comprised in another product and the defect is341Abouzaidv Mothercare (UK)(2000)The claimant was a 12-year-old boy who was injured
while helping his mother to attach a product called
a ‘Cosytoes’ to his younger brother’s pushchair. The
‘Cosytoes’ supplied by the defendants consisted of
a fleece-lined sleeping bag which was attached to the
pushchair by means of elasticated straps joined by a
metal buckle. The boy was trying to join the straps when
one of the straps slipped from his grasp and the buckle
hit his eye. He was left with no useful central vision in his
left eye. The Court of Appeal held as follows: (i) The man-
ufacturer was not liable in negligence. The absence of
comparable accidents was a relevant factor. Elasticated
tape was a commonly used fabric and there was no evid-
ence that its use was likely to cause injury. Although
there was the potential for a serious injury, the likelihood
of injury occurring was assessed as very small. So while
there was an identifiable risk, it was not such that a
manufacturer in 1990 could be held liable for supplying
the ‘Cosytoes’ product. (ii) The product was defective
under the CPA 1987 in that the design permitted a risk
to arise without warning that the user should position
himself so as to avoid the risk of injury. The public were
entitled to expect better. (iii) The defendants could not
rely on the absence of recordable accidents as meeting
the requirements of the ‘state of scientific and technical
knowledge’ contained in s 4(1) (see below).Av National Blood Authority(2001)The High Court held that the defendant, the National
Blood Authority (NBA), was liable to the recipients of
blood infected with the Hepatitis C virus as a result
of blood transfusions which took place after March 1988.
Hepatitis C was identified in 1988 but the NBA did not
introduce screening tests until September 1991. Blood
and blood products contaminated with the virus were
‘defective products’ under Art 6 of the Product Liability
Directive and s 3 of the CPA 1987, and the NBA, as a
producer of the product, was liable to the recipients of
the infected blood.