Author Name:   ashish92

product liability arises when there is any fault or defect find in product and what are the rights available to consumer and who will be liable if there is any defect in product whether manufacturer or retailer or supplier....

Analyzing the issues of product liability and consumer rights

Product liability and consumer protection laws both differ from country to country. But the basic reasoning behind this is to deal with the protection and safety of consumer, even if the damage is caused by consumer’s own negligence.

The first general issue that arises from the product liability is that, what should be the criteria for this and what should be the limit to decide, that the defect in a product can harm any consumer.

Sale of goods act 1979, the understanding gives rise to an absolute obligation i.e. the seller is liable if the goods do not come up to the standard required by the act, even though he has taken all possible care that he should do and is in no way to blame for defect.[1]

There are many day to day life example that happens, which encounter with the defective products, like an insect inside the cold drink bottle, unhygienic condition at manufacturing place and the selling of expiry date products, and the ultimate result of all these events is the damage, suffered by the consumers.

Product liability cases are a subset of personal injury law dealing with the design, manufacture, distribution, and sale of goods on services. They may involve claims against a number of companies and the business organisations, including retailers, marketers and manufacturers.[2]

These are the issues that arises from the product liability. Now after this what should be the law to deal with all these problems. These things come up from the Consumer Rights, that are possessed to avoid the harm. The basic concept of the Consumer Protection is safeguarding the interest and rights of consumers.[3] The law possesses the responsibility of the manufacturers or retailers to the consumers, legal remedy to the consumers and settlement of dispute, if arises.

The primary issues related with the consumer protection right – Does the law provide proper protection to the consumer, the act to provide for better protection of the interests of consumer and for that purpose, to make provision for the establishment of consumer council and other authorities for the settlement of consumers’ disputes and for matters connected therewith.[4]

Issues That Arise From The Product Liability And Consumer Rights
1. What should be the set of standard for the analysing defective products and its legal application?
Purchasing any goods either directly from the manufacturer or the retailer sets a standard of contract between consumer and them. Consumer buys the goods from the manufacturer or retailer to trust on the competency of the product. It is legally the duty of the manufacturer of the product to mention the proper warning on the product if the product possesses any dangerous use. It is also the legally bound duty of the manufacturer that whatever product they are producing, should also be properly labelled and mention the proper information about the manufacturing and expiry date, quality and quantity of the contents by which they are producing the good, and information regarding the health consciousness of the product. To impose all these duties on manufacturers and retailers, government enacted various laws and acts like Federal food, drug and cosmetic act, Fair packaging and labelling act and Food Adulteration act (INDIA) 1954.

International Organisation for Standardization (ISO) also specifies the requirements needed for the ideal121 product. There are many ISO standards like ISO 9001, ISO 9002, ISO 9000 which deals with the standard for different type of products [5]

1. What are the rights available to protect the consumer from defective products?
Civil law as well as criminal law may be used to some extent to regulate unsafe products. Under the consumer protection laws available in different countries like UK, USA, Turkey, EU and India they provide some common rights to the consumers, like if any defect is found out in the product then the consumer can demand for the free repairing of the product or can exchange the defective product, and can also reduce the price for the defective part of the product, and also he can bring a legal action against the manufacturer or supplier or both for the breach of contract between them.

In India consumer has a ‘’right to choose’’ which implies that a consumer can demand to the traders to show more verities of the product. Sometimes traders show only such type of products from which they can get the maximum profit. A consumer also has ‘’right to be informed’’ which describes that a consumer has a right to be informed about the quality and quantity standard, price and the health safety of the product. If he gets any wrong information about it or mislead about the expiry date of the product, then a consumer can also file a suit against the traders.

1. Claims for injuries caused by the defective products.
Goods purchased by the consumer should have some set of standard and quality. If they don’t posses any set of standard and unsafe for the health, then a consumer may have a claim under Consumer protection Act 1987.

Part 1 of the Consumer protection Act 1987 deals with the strict liability imposed on the manufacturer of the goods for any defect in the product. It means that if consumer suffers any injury, then a claim can be brought against the manufacturer. A claim may only be made for damage to property if the property was for private use or consumption and the value of the damage caused exceeds £275. A product is defined to include any goods or electricity, including component parts, raw materials, and agricultural products. A product is defective if its safety is not such as persons generally are entitled to expect.

As we have already discussed about the issues that arises from the product liability & consumer rights and what are the laws available to deal with consumer right with their reference to India. After that the main dilemma arises when this question comes into force that ‘’ who will be liable for any defect in the product or in other words who will be responsible for faulty products’’ it may be either manufacturer or retailer. On whom this liability will be fixed?

The responsibility for a defective product depends on the manufacturer, retailer or supplier. If any defect is found out in the process of producing goods then the manufacturer will be liable.

Once the product is sold to the public via a retailer the latter may also be held responsible for the supply of defective product.[6]

Burden of proof lies on the claimant and he has to prove that whatever injury he has suffered, is caused by defective product, which is produced by the manufacturer or supplied by the supplier.

One of the leading cases on product liability is Donoghue v. Stevenson [7] , established for the first time that even in the absence of contract, there may be remedy in tort for defective goods, provided the goods also pose a threat of injury to health or safety. The remedy may be sought from the manufacturer who owes a duty of care to the ultimate consumer of goods and it must be established that the manufacturer was at fault before the remedy will be available.[8]

Under the Consumer protection Act 1987, a supplier becomes liable under sec.2(3), if the goods are anonymous and he or she has no record or other means of tracing his or her supplier, or if he or she refuses to identify his supplier.[9]

Negligence:
The burden of prove lies on the plaintiff and he has to prove that there was a negligence on the part of defendant, by stating that defendant owe the reasonable duty of care to produce or distribute the goods. The negligence may be in process of manufacturing the goods or in designing of goods or it may be in, not providing the possible warning and information related with the goods or in part of distribution of goods or it related with the ingredients and raw materials which are being used for further production.

In one of the leading case Macpherson v. buick motor co [10] where plaintiff purchased a motor car from the dealer, who had purchased directly from the manufacturer of the car, plaintiff had suffered injuries because of faulty woods in the wheels, which were manufactured by the manufacturer. Now the issue that had risen before the court was that whether plaintiff can file a suit against the manufacturer of the car, which he had purchased directly from the dealer. The court gave the decision in favour of plaintiff by stating the reasoning that, manufacturer would be liable for his negligent act during manufacturing the goods, by which any other person has suffered injury.

The other milestone case about negligence in product liability is Donoghue v. Stevenson[11] .where court had given the decision in favour of plaintiff by giving the reasoning that - a manufacturer who sold substandard article to a retailer who sold it to a customer was held liable to a friend of the customer who after consuming it become ill. The manufacturer was under a contractual duty to the retailer and was in breach of that duty but he also owed a duty in tort to take reasonable care not to harm the consumer.[12]

The main difference between the above mentioned case is that in MacPherso case the defendant was liable for negligence but there was no contractual relationship between them, but in Donoghue case the court had mentioned that there was a contractual relationship between plaintiff and manufacturer.

Strict Liability in product liability:
“Strict liability is the legal process in which the claim filed by the plaintiff is focused not on the manufacturer’s conduct, but rather the quality of the manufactured product. The California Supreme Court adopted the doctrine of strict liability in Greenmun v. Yuba Power Products, Inc [13] case. The basis of the claim is the accusation that the product itself is either defective, of poor quality, poorly constructed, or somehow dangerous or hazardous to the user” [14] The main motive to introduce the strict liability principle in product liability, is that it mainly imposes when any matter related with the defect in the goods and it results into the dangerous for use. The doctrine of strict liability also applies where there is no contractual relationship between plaintiff and manufacturer.

The plaintiff's injury must have been caused by a "defect" in the product. Thus the manufacturer is not deemed responsible when injury results from an unforeseeable use of its product.[15] In the case of Abouzaid v. mother care(U.K) ltd [16] The court has laid down that:

· The exercise of all proper care will not necessarily protect the producer from strict liability if a consumer is injured by a defect in the product.[17]
· A manufacturer or supplier may be liable under strict liability even if the risk could not have been recognised at the time of supply.[18]
· The development risks defence will be available only where there has been some scientific or technical advance since the time of supply, which enabled the defect to be identified

[1] The Sale of Good Act, 1979, § 7 (UK).
[2] Available at http://EzineArticles.com/?expert=Joseph_Devine.
[3] The Sale of Goods Act 1979, § 1 (UK).
[4] Consumer Protection Act, 1986 § 6(e) (India).
[5] Available at www.isi.org/iso/about.htm
[6] http://www.workrelatedinjury.co.uk/product-liability.htm
[7] [1932] AC 562 , [1932] UKHL 100
[8] Vivienne Harpwood, Principles of tort law § 330 (4th ed. 2000).
[9][1] Id.
[10] MacPherson-v.-Buick-Motor-Co.217 N.Y. 382 available at http://www.4lawnotes.com/showthread.php/1323-MacPherson-v.-Buick-Motor-Co
[11] [1932] AC 562 , [1932] UKHL 100
[12] Ratanlal & Dhirajlal, The Law Of Torts §1076 ( 25th ed. 2006).
[13] 59 Cal.2d 57
[14] http://www.weitzlux.com/dangerousproducts/productliability_1145.html
[15] http://www.west.net/~smith/strict.htm
[16] [2000] All ER (D) 2436
[17] http://www.tradeangles.fsbusiness.co.uk/articles/product_liability.htm
[18] id.

The  author can be reached at: ashish92@legalserviceindia.com

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