untitled

242 Chapter 8The tort of negligence

Damage suffered

Section 5 of the Act allows a claimant to claim damages for death or any personal injury

caused by the unsafety of the product.

Damage to non-business property is claimable, but only if it causes an individual to

suffer a loss of more than £275. The loss may be made up of damage to several items.

Damage to the product itself is not recoverable. Nor is damage to other products sup-

plied with the product. Nor can a claim be made in respect of loss of or damage to business

property.

Example

Mr and Mrs Allen are bought a toaster as a wedding present. The toaster catches fire and

burns Mr Allen’s hand. The kitchen work surface is damaged and the toaster itself is

destroyed. Under the Act, damages could be claimed from the manufacturer for the injury

to Mr Allen and for all of the damage to the work surface as long as that amounted to more

than £275. Damage to the toaster itself could not be claimed under this Act. The buyer of

the toaster could claim back from the retailer the price of the toaster under the Sale of

Goods Act 1979 (because s. 14(2) of that Act would have been breached).

Compensation for injury, death and damage to goods must be claimed within three years

of the loss becoming apparent. In addition, there is an absolute time limit of ten years after

the date when the product was supplied. This means that a person injured by a product

more than ten years after buying it will have no remedy.

Defences

Under the Act, liability is strict and this means that the claimant does not need to prove

fault. Nor can liability be excluded by any contract term or notice. There are, however,

certain defences available, as listed below:

As regards these defences the burden of proof is on the defendant.

(i) That the defect was caused by complying with EU or UK legislation.

(ii) That the product was not supplied or manufactured in the course of a business. For

example, a person who made jam as a hobby would not be liable under this Act if the

in a bottle with a child-resistant closure cap, which was more difficult to open than an

ordinary screw-top bottle. However, the bottle top did not comply with the British Standard

torque measure.

HeldThe product was not defective. The public would expect the bottle top to be more

difficult to open than an ordinary screw top, which it was. Members of the public were

unlikely even to know about the existence of the British Standard, never mind what it

required. So the product’s safety was such as persons generally are entitled to expect.

CommentThis decision has been criticised. If the public knew of the existence of the

British Standard, they would probably have expected the product to comply with it.