Introduction
Claims in product liability allow consumers to receive compensation for injury or damage caused by a defective product. The damage must be caused to a person or to property other than the product itself (Aswan Engineering Establishment Co v. Lupdine Ltd [1987] 1 All ER 135).
Product liability claims operate in a wide range of scenarios: whether a bottle of ginger beer unexpectedly contains a snail (Donoghue v Stevenson [1932] AC 562), or a dangerous chemical is not properly labelled (Vacwell Engineering v BDH Chemicals [1971] 1 QB 88), any resulting damage caused to persons or property must be made good.
There has been a rise in product liability claims linked to pharmaceutical products, which includes claims relating to rare side effects suffered following a COVID-19 vaccination.
Product liability claims are governed by the Consumer Protection Act 1987 (‘CPA 1987’).
How to succeed in a Product Liability Claim?
The CPA 1987 covers personal injury and damage to personal property worth more than £275 which is caused by a defective product (s. 5 CPA 1987). In product liability claims, the legal doctrine of strict liability applies. This means that all a claimant needs to prove is that the product was defective, rather than proving intention, negligence or fault by the defendant.
Under the Act, the basic test of ‘defect’ is whether the product falls short of “what persons generally are entitled to expect” (s. 3(1) CPA 1987). This is considered with regard to all the circumstances, including the purposes for which the product is marketed, objectively reasonable expectations as to what the product is for, and any associated instructions or warnings (s. 3(2) CPA 1987). A product can be considered defective in different ways, including an error in its manufacturing or inadequate labelling or warnings.
Claimants will need to establish that they have suffered loss, that the product is defective, and, importantly, that the defect caused the loss. Liability falls on the producer of a product, and includes anyone who holds themselves out to be a producer, puts a trade mark on the product, or imports the product in the course of a business (s. 2(2) CPA 1987).
An important defence in product liability claims is the ‘development risk defence’, which protects a defendant where the defect was not necessarily discoverable due to the state of scientific and technical knowledge at the relevant time (s. 4(1)(e) CPA 1987).
Vaccine-injury claims
Product liability claims commonly occur in the context of defective pharmaceutical products. This includes individuals who have been harmed by a vaccine.
During the COVID-19 pandemic, following a mass vaccination programme, reports emerged of individuals experiencing adverse reactions, including conditions such as myocarditis, pericarditis, Guillain-Barré and VITT. It is important to stress that the COVID-19 vaccines played a vital role in managing the pandemic. According to the World Health Organisation “the benefit-risk ratio remains overwhelmingly positive”. However, in very rare cases, individuals may have experienced adverse reactions, causing them to suffer considerable harm and incur significant financial losses.
If you or a loved one has been injured as a result of your vaccination, you may be entitled to compensation. This could be through issuing a civil claim in court or making an application to the Vaccine Damage Payment Scheme. In a civil claim, determining that the vaccine caused your injuries is likely to be established through obtaining expert medical reports.
Jurisdiction
The relevant forum to bring a product liability claim is governed by the Rome II Regulation. This is retained as part of British law, even following Brexit.
Under Article 5, the applicable jurisdiction to bring a product liability claim is that in which the claimant was habitually resident when the damage occurred, so long as the product was marketed in that country. If it was not, it is the country in which the product was acquired, if the product was marketed there. Failing this, it will be considered the country in which the damage occurred. However, if in all the circumstances it is clear that the claim is more closely connected with another country, then that will be the relevant jurisdiction (Article 5(2) Rome II Regulation). Finally, Article 5 is “without prejudice” to Article 4(2); if the claimant and defendant are habitually resident in the same country, the relevant jurisdiction will be that country.
Limitation Periods
Under English and Welsh law, strict limitation periods apply for bringing a claim. These periods are governed by the Limitation Act 1980 (‘LA 1980’).
For product liability claims concerning personal injury, the limitation period is three years from the date of injury or knowledge of the injury (s. 11(4) LA 1980). Under s. 33 LA 1980, courts have the discretion to extend that period if they consider it equitable to do so. To make that determination, the court will consider a number of factors, including why the delay has occurred, whether and how the delay has affected any evidence, and whether and how allowing the claim to proceed would prejudice either party.
That discretion does not affect the strict ten-year back stop for product liability claims. In accordance with s. 11(A)(3) LA 1980, a claim cannot be brought more than ten years after the defective product is supplied.
How can we help?
Taylor Hampton has extensive experience in product liability and personal injury claims, including in relation to defective pharmaceutical products and vaccine-related injuries. Please contact us Contact Us for a free consultation to see how we can help.
Disclaimer: This article provides general guidance only and does not constitute legal advice. Legislation, civil procedure rules, and case law can change. Always seek professional legal advice tailored to your specific situation before acting.