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Sunday, 4 March 2012

Warning labels and instructions in product liability law

 Here's a little legal problem that I have been grappling with, and there seems to be no harm in sharing it in general terms. It's all to do with product liability, under the Consumer Protection Act 1987 and also under the General Product Safety Regulations 2005, but connects with issues of type approval both for an individual component or system and for the whole vehicle. What can the producer of a modified component which does not meet those approvals do to protect itself?

The Act gives a remedy to anyone who suffers injury because of a defective product. Section 3 defines "defect":
(1)Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.
(2)In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including—
(a)the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;
(b)what might reasonably be expected to be done with or in relation to the product; and
(c)the time when the product was supplied by its producer to another;
and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.

Under the Regulations, it is an offence to put a product on the market unless it is a safe product, defined as:
... a product which, under normal or reasonably foreseeable conditions of use including duration and, where applicable, putting into service, installation and maintenance requirements, does not present any risk or only the minimum risks compatible with the product’s use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons. In determining the foregoing, the following shall be taken into account in particular—
(a)the characteristics of the product, including its composition, packaging, instructions for assembly and, where applicable, instructions for installation and maintenance,
(b)the effect of the product on other products, where it is reasonably foreseeable that it will be used with other products,
(c)the presentation of the product, the labelling, any warnings and instructions for its use and disposal and any other indication or information regarding the product, and
(d)the categories of consumers at risk when using the product, in particular children and the elderly.
The feasibility of obtaining higher levels of safety or the availability of other products presenting a lesser degree of risk shall not constitute grounds for considering a product to be a dangerous product ...
So, what can you do? For my client, the key lies in the references to labelling, warnings and instructions for use. While you can't escape liability altogether by such means, you can get the product liability genie back in its bottle, or whatever it is that genies live in. Make sure you tell prospective buyers about what they should not do with the product, and how they should use it safely - what it has been designed to do. It brings to mind all those early, scary, possibly apocryphal, product liability cases mostly from the US involving drying dogs in microwaves, cutting hedges with hover lawnmowers, and the like. Not a complete solution, then, but the best available.

This is certainly not legal advice: consult a lawyer (i.e. take advantage of his or her insurance cover) if you have a problem, and get something drafted that will do the particular job you need done. But be careful not to put the customers off!

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