Irwin Mitchell represents hundreds of clients who have suffered injuries and damage to property as a result of defective products. In many cases, the damage caused has been life changing.
Our experience of dealing with the aftermath of these incidents for our clients gives us a unique insight into the systems designed to protect consumers in this country. We believe that more can and should be done to protect consumers from the risk of serious injury or death from defective products.
The majority of manufacturers and retailers care about the safety of their products and take a keen interest in securing the high standards their reputations depend upon. But the huge range of consumer products available in today’s market place means that there are inevitably some less trustworthy manufacturers and retailers willing to release sub-standard products.
On a daily basis we see examples of inadequately designed or poorly manufactured products which are available for use in the home, at work, or even in medical treatment which pose a serious risk of injury.
These products can range from counterfeit, illegally imported products, to those which are defective despite having been designed and manufactured in accordance with relevant legal standards. In either case, the safety of consumers is compromised by these products becoming available for use.
Similarly, when safety risks are identified, some manufacturers and retailers have been slow to recall their products, whether this is because of a lack of understanding of the risk, or for fear of damage to reputation. In some cases, dangerous products have remained available for sale long after a problem is identified, leaving consumers oblivious to the problem and vulnerable to injury.
When serious incidents do occur, consumers can face a complicated battle with the seller of the product or the manufacturer. The law applying to defective products is very complex and can leave those individuals affected with no clear right of redress.
The Irwin Mitchell Safety As Standard campaign is our response to the risk which consumers are exposed to by the current system.
We will use our platform as the UK’s largest personal injury firm to promote reform of the existing law, to educate our clients and the wider public about the risks of defective products and the consumer rights available to those injured by them, and to work with charities, consumer agencies and the sellers and retailer of products to help raise standards.
The system for recall of defective products
There are currently no means of ensuring that all consumers are notified of recalls of household products. At the moment, the only way in which consumers can be sure of being notified of a recall is to register their warranty with the manufacturer. Most consumers are not aware that this is the only way of obtaining notification and are therefore at risk of missing potentially lifesaving recall notifications.
The notification rate of product recalls could be significantly improved by the transfer of buyer details to the manufacturer at the point of sale. This would not only improve consumer safety, but would also simplify the process of recall for responsible manufacturers, most of whom struggle to communicate recall messages when a product failure is identified, because of the absence of a complete customer database.
There is currently no requirement for manufacturers to automatically recall products identified as posing a safety risk. If a recall is not initiated, consumers may be left with a protracted repair process, and manufacturers are not obliged to instruct against using the product. This can leave consumers with a potentially dangerous product for an extended period of time.
The requirement for automatic recalls for all products with identified faults which pose a risk of injury would level the economic playing field for manufacturers and significantly reduce the risk of serious injury to consumers.
The CE mark system
The CE mark system is not sufficiently rigorous to protect consumers against less reputable manufacturers. We have seen many examples of products which have received a CE mark, but which are nonetheless flawed in design and dangerous. There is a fundamental conflict of interest, in that the ‘notified bodies’ which approve products are paid by those they are supposed to regulate. There is little or no independent oversight.
The system of product testing and approval should be placed in the hands of an entirely independent body which is not dependent on income from manufacturers. This would not only enhance consumer safety, but may also reduce the costs of the approval process for manufacturers and level the playing field for responsible manufacturers as against those willing to cut corners. The system should impose the most rigorous application of safety standards that can be achieved.
The law on redress
The definition of a defective product under the Consumer Protection Act 1987 is still unclear. The standard of safety required by law is ‘that which persons generally are entitled to expect’; but even lawyers still do not know precisely what that means.
The Consumer Protection Act 1987 should be clarified by parliament. The standard of safety should be the best reasonably achievable level in the relevant field of manufacturing at the time of manufacture.
The Consumer Protection Act 1987 is subject to a ‘longstop limitation’ period of 10 years, after which manufacturers cannot be held liable for injuries or damage caused by defective products. Whilst this provides certainty to manufacturers, it creates an unfair curtailment of consumer rights which does not apply in any other injury claim. In many defective products, including medical devices and pharmaceuticals, the defect can remain undetectable for in excess of 10 years before failure. In these cases, consumers are left with no right of redress.
The principle of ‘longstop limitation’ should be removed from the Consumer Protection Act. The existence of a clause restricting consumer rights in order to protect manufacturers of defective products is inconsistent with the purpose of the Act. The interests of manufacturers’ are adequately protected by the usual rules on limitation periods that apply to all claims.
Current sanctions for the party at fault
Whilst reputable manufacturers trade upon their reputation and compete to achieve the highest standards, there are currently no strong incentives for rogue manufacturers and sellers of defective products to achieve basic safety standards. Consumers who suffer injury or damage as a result of defective products can seek to recover compensation, but those responsible should be insured for this. The costs of insurance and claims are overheads which can be corrected by price increases.
The maximum penalty a manufacturer faces under the General Product Safety Regulations is a £20,000.00 or a 12 month prison sentence. A failure to comply with the Consumer Protection Act can lead to an unlimited fine or a six month prison sentence. Significant prosecutions under either Act are extremely rare.
The law should be strengthened so that those producers and sellers of defective products who are truly at fault understand that they will be held accountable both financially and in criminal law if they expose consumers to the risk of injury or death through the production or untimely recall of defective products. This can be done by the introduction of American style punitive damages in compensation claims, which would impose a stronger financial penalty upon those at fault, and a stronger emphasis on personal responsibility at board level.
The risk posed to consumers by defective products is significant. We will use our platform as the UK’s largest personal injury firm to spread the message that product recalls are extremely important, and of the ways in which consumers can ensure that they are kept up to date.
Safety when buying or choosing a product
We have extensive knowledge of the types of risks posed to consumers when selecting a product. Often it is a question of spotting a warning sign like a poor quality website, or a missing CE mark; or knowing what questions to ask of your surgeon when selecting a medical device or treatment.
We will raise awareness of the issues common to products of all types through our campaign.
The system of Consumer Rights in the UK is complicated. It can be difficult to understand who should be responsible for problems caused by defective products. In some cases a consumer can have a right of action against a seller, a manufacturer, and their credit card provider all at once, but knowing exactly what those rights are, which one is best, and how to deal with the culpable parties can be extremely complicated.
We want consumers to be better informed of their rights of redress against all of those involved in the supply chain of purchased goods so that they can represent their own interests where possible. Where the situation is more serious or more complicated, consumers should know when it is appropriate for them to seek legal advice.
Work with partners
We work in conjunction with and support a wide network of organisations and charities involved in consumer safety, in order to promote better standards for consumer products. We believe, and many of our clients believe, that sharing knowledge of outcomes and failure analysis can help to identify safety issues and prevent further injuries before they occur. We cannot prevent injuries from happening, but we can help to prevent repetitions.
We have, through our business legal services team, significant influence in the manufacturing sector, and regularly advise manufacturers on their legal obligations to ensure compliance with the appropriate safety standards. We will continue to educate manufacturers on their obligations and the best ways in which they can comply with the highest standards of safety.
Please show your support for our campaign by following #SafetyAsStandard on our social media channels. For further information on the cases that we’re currently investigating, please visit our Defective Products webpage.