©Gordon Hayward, 1997
What does "product liability" mean to you? Multi-million dollar class actions against transnational pharmaceutical companies? Lone individuals trying to obtain modest compensation through the county court? Or small manufacturers being prosecuted for minor technical infringements of regulations?
Figures published by the Department of Trade and Industry show 6 million home and leisure accidents are treated by hospitals in the UK every year, and a surprisingly high number of them involve a consumer product in some way. Some 15,000 consumers a year complain to Trading Standards or Citizens Advice Bureaux about the safety of non-food products they have bought. Yet only a small proportion of these result in personal injury claims or prosecutions. While the potential costs of losing a case are often a severe deterrent, another difficulty is establishing whether what was at fault was the product or the person using it. This is the task of the consumer safety expert.
There are two key pieces of legislation in this area, both deriving from EU Directives: the Product Liability part of the Consumer Protection Act (CPA) 1987, and the General Product Safety Regulations (GPSR) 1994. [The GPSR will be revised during 2002-2003 to implement changes to the EU Directive.] In addition, however, there are about 30 specific regulations that cover some important groups of products, such as electrical appliances and toys. In principle, the legislation allows actions (civil or criminal, respectively) to be taken against the supplier of any product sold or hired to the public by a trader.
Civil cases concerning consumer products are more likely to be successful than some other personal injury actions, because the legislation imposes strict liability. Instead of negligence on the part of the producer, it is only necessary to show that "...the safety of the product is not such as persons generally are entitled to expect." In criminal prosecutions, on the other hand, the supplier may be able to make a defence of "due diligence" which is particularly relevant when the issue is one of quality control rather than product design.
The range of products that are the subject of legal action is very wide. Just a few months, my practice has been consulted about bunk beds, balloons, a bath, cement, children’s clothing, oven cleaner, spray paint, a cat food tin, a trolley jack, a shower chair, a climbing frame, pushchairs, hair dryers and a camping stove. It is not possible to be familiar with every product in advance, but this is not necessary because a wide experience enables a safety expert to judge safety by analogy with other products. In contrast, too great a familiarity with one product can blind one to its faults and to an ordinary consumer’s expectations of it.
Work of a product safety expert
Depending on the circumstances of the accident, a product safety expert may need to undertake a variety of activities. After an initial study of eyewitness descriptions, photographs and existing case papers, it will usually (though not always) be necessary to examine and measure the "faulty" product and/or an unused sample or examples of comparable products. It may be helpful to interview the "victim" in relation to their purchase and pattern of use of the product.
Where the injury has resulted from a product breaking or otherwise failing, some forensic engineering may be required. It may be necessary to arrange specific tests or consumer trials by an appropriate laboratory. The results of these and any previous tests will need to be interpreted in order to give an opinion on the likely cause of the accident. The GPSR also requires that the "state of the art and technology" be taken into account. For several reasons, therefore, it is valuable for a consumer safety expert to have an engineering background
A key part of an expert’s task is locating and interpreting the relevant clauses in British Standards. There are about 5000 such standards dealing with consumer products or services, with 500 new ones or revisions published each year. Despite this, many products (particularly new ones) have escaped the process. For these cases the safety expert may know of a standard (or a draft) that covers a different product with a similar hazard.
Conformity with a standard only rarely confers complete immunity from prosecution. On the other hand, a lack of conformity may be insufficient to show that the product is unsafe. An expert will need to consider the likelihood and severity of any harm that might result. Nevertheless, familiarity with a wide range of standards and continuing involvement in the work of writing them is valuable experience for a product safety expert, particularly when the particular product is not (yet) covered by a standard
In contrast to the legal position with health and safety at work, no one but the consumer controls the circumstances in which products are used in the home. Effectively this places a greater responsibility on consumer market manufacturers, because they cannot make so many assumptions about how their goods will be used. Consumer products may be used by people with no technical understanding, without training, and in an environment fraught with other hazards. This can be a particular problem when professional products begin to "migrate" into the consumer market – for example through equipment hire companies.
Another aspect on which an opinion may be required is the need to take into account (in the words of the CPA) "… what might reasonably be expected to be done with or in relation to the product" – the concept of "foreseeable (mis)use". According to a survey by NOP, two thirds of consumers believe products should be safe even if misused! Manufacturers would not agree. To be able to give a reasoned opinion about this, it is useful experience to have studied a wide range of consumer accidents and to have an awareness of human behaviour and ergonomics.
Reports of similar accidents may be required. These may be found in government statistics, press reports or scientific papers. The expert may need to consult Trading Standards, overseas sources or specialists in particular branches of science and technology.
For new or uncommon products, no other injuries may be known and it may be necessary to perform desk studies such as a hazard analysis or an ergonomics evaluation of the product. If the case warrants it, trials may need to be arranged using a panel of consumers.
With children, the questions are more complex, since what behaviour can be expected depends on the age of the child, the circumstances in which they have access to the product and what supervision might be expected. The age of child for whom a toy or product is intended can also be a difficult question, which is not necessarily resolved by labelling on the packaging.
Instructions, warnings and advertising
Ideally, hazards should be designed out of products, but in practice cost or function usually means there are residual dangers, which the user must be aware of and avoid. The GPSR requires that "a producer shall.. provide consumers with the relevant information to enable them to
The appropriateness and clarity of instructions and warnings is thus often a key factor in product safety cases, and is another one where a safety expert’s opinion could be necessary. Some manufacturers appear to see warnings as the exclusion clauses in a contract and use similarly small type and complex terms. On the other hand, the NOP survey showed that over 40% of consumers thought products should be safe to use without reading the instructions. Neither attitude is realistic – experience is needed to make a balanced and reasoned judgement of the particular circumstances.
The CPA requires to be taken into account "the purposes for which the product has been marketed" and its "get-up". This reflects the fact that the way a product is advertised or presented can also influence what consumers expect to be able to do with it.
An expert who is independent is likely to be a more credible witness than one who appears to have unrealistic expectations of either the product or of the user. One who will work for plaintive or defendant will be seen as more independent than one who is always closely associated with the trade or with the consumer lobby. Manufacturers (or their insurers) may therefore find it useful to employ an independent expert to summarise and comment on a body of evidence assembled by in-house technical staff and/or external test laboratories. This is particularly valuable when this information was not originally obtained with legal action in mind, or the staff responsible are not used to interpreting the findings in terms of the legal adequacy of safety.
While the list of possible activities an expert might undertake appears very long (and expensive) only a few tasks would be relevant or even possible for a particular product. Most safety specialists have a genuine enthusiasm to investigate how accidents are caused and ways of preventing them, but the needs of the case may be more limited. A good expert witness is one who can limit the investigation and the report to issues that are likely to influence - one way or the other – whether the defendant is liable (in criminal or civil law as appropriate) for supplying an unsafe product.
In simple cases it is often possible to give a solicitor an immediate view on the merits of case by telephone. Where it is necessary to see papers and photographs, the expert should nevertheless minimise the investigation (and the time charged for) if it appears to him or her that the evidence does not support the client’s case.
All experts need to be able to give realistic advice on what sort of evidence is likely to be obtained within the very real constraints of time and money available for the client. This is particularly important with consumer products where a single individual may be seeking very modest damages (perhaps even a small claims action). A short report based on visual examination of the product or photographs may be all that is possible, but if it is well argued it can be adequate for the case.
Gordon Hayward MA PhD MIMechE CEng MEWI is a consumer safety expert who is listed in the Law Society Directory of Expert Witnesses
e-mail: Consumer.Safety@btinternet.com