What is Product liability?
Simply put, product liability relates to anything manufactured that is shown to be faulty or not fit for the purpose it was intended. This includes any product from child toys, to cleaning products, to mobile phones, to foodstuffs and even medication. Effectively it’s any product available to the public.
If such a fault or contamination is found or the product is not fit for purpose, the retailer and/or the manufacture and/or importer of that product (into the EU), is responsible for the product and any harm or damage it has caused.
The Consumer Rights Act dictates that all products must be of satisfactory quality, fit for purpose and as described.
Satisfactory quality – Goods shouldn’t be faulty or damaged when you receive them. You should ask what a reasonable person would consider satisfactory for the goods in question.
Fit for purpose – The goods should be fit for the purpose they are supplied for, as well as any specific purpose made known to you by the retailer, before you agreed to buy the goods.
As described – The goods supplied must match any description given to you, or any models or samples shown to you at the time of purchase.
The Consumer Protect Act 1987 provides the provisions and protection for consumers to use a product in the knowledge that the product is safe and fit for purpose. The Act sets out who is liable for a faulty product. We at Oakwood Solicitors are here to help you win your case against any manufacture or persons deemed as the producer who has sold you a faulty product and has caused injury or property damage.
Some examples may be an injury, property damage or psychological damage. It can be quite obvious when a product is defective, it may fail the first time of use or some years later. However, if it can be shown that a reasonable person would expect the product to remain in use and should remain in use for that period and it fails, then the product is defective.
Similarly, if a product does not fail but it simply is not able to do the job is was intended, for example, the popular catchphrase “as much use a chocolate teapot” or a sun cream that does not protect against the sun’s rays, then the product is not fit for the purpose it was intended and therefore, defective.
The effects of some products are not known for some time. This is particularly the case when defective medical products are used. It may be a number of years before the adverse effects of a medication or medical device are known.
What are the most common types of product claims?
As mentioned above, due to the vast number of products out there, these claims can arise from anywhere. However, you may have seen many of those that have hit the headlines, such as the defective tumble dryers, mobile phone batteries and a number of children’s toys.
Also, there are many food products that are recalled due to contamination and may result in serious injury. Within the UK alone there are many products recalled every week, so there is a wide variety of claims that are made against the companies who bring these products to market.
This includes medications, aides and medical implants that may cause adverse or unintended consequences. Examples of this may be defective breast implants, hip joints used in hip operations or permanent contact lenses.
It is a common misconception that these cases are the fault of the medical practitioner, however, if a defective product is used in good faith by the medical practitioner, it is not the fault of the medical practitioner but the fault of the manufacturer.
What injuries are caused because of product liability claims?
As you can imagine, there are a number of injuries caused by defective products. The worst of which may be a fatality. There have been reports of house fires due to defective tumble dryers, although no fatalities have been reported, the possibility of such a fatality is high.
Products such as defective power tools, motorcars or bicycles can often result in catastrophic injury to the user and those around them. These injuries can have a knock-on effect on a person’s life, for example, if they are unable to work and face financial difficulty as a result.
Often in the headlines, you will see foodstuffs being recalled. As you can expect contaminated food, which hits the shops and supermarkets, can be a major risk to the public and recalls are issued in the headline news. Often serious food poisoning can result from these contaminated products.
If a medical product is found to be defective, this can be very worrying for the patient. It may be that you are not symptomatic but are aware of a recall or have been warned of a potential defect. In these cases a claim can be brought for the pain, suffering and psychological effect this may have, alongside compensation for undergoing a further procedure to correct or removed the product or medical device.
Who does it affect?
Product liability claims first and foremost affect the person using the product who may have sustained injury or property damage. However, it may affect their family, financially or through the care they have provided to the injured party.
A defective medical product or device may not affect all those who have used it or are using the device. However, the risk of developing such problems will be assessed on a case by case basis and removed in those of high risk.
There are hundreds of product recalls each year across all markets. From electrical products to furniture to motor vehicles to medical devices.
Looking at electrical products alone, it is reported that the average success rate of a product recall is around 10 to 20%. This shows that there are huge volumes of recalled products still being used by the public.
How do I make a claim?
If you have sustained injury as a result of a defective or faulty product then first you should seek medical attention as required. With regards to making a claim for the injury, you should obtain photographs of the product in its broken state where possible. It would also assist to obtain proof of purchase. We can then assess the prospect of the case and advise you accordingly.
If you have reported the matter to the manufacture or retailer, you may be offered a refund of compensation from them directly. By accepting this, it does not automatically bar you from making a claim and you should seek our advice on this. You may be entitled to more than just your money back.
If you are aware of a defect with a medication or medical device then you should seek medical advice. Any medical device that has been recalled will be made known to medical experts or can be easily researched by them. The medical expert will provide advice to you. It may be that revision surgery is require or the medication withdrawn.
If you decide you wish to make a claim or wish to seek advice on making a claim you can contact Oakwood Solicitors and we can assess your case. We will require details, where possible, of the practitioner or company whom carried out the procedure, details of the dates this was undertaken and details of what symptoms you are experiencing.
We would also advise that you report the side effects to the practitioner or company who carried out the procedure. We can then assess the prospects of your claim and look to obtain compensation for the injury.
There is a statute of limitations that covered all claims brought and included within this is product liability claims. The Limitation Act 1980 sets out the law with regards to the timeframes a person can bring a claim against another party. Court proceedings must be issued with the court, against the intended Defendant, within this timeframe.
In respect of product liability, there are two levels to the Limitation of such claims. Firstly, any claim, including personal injury, must be brought within 10 years of the product being brought to market. This is the date the product is made available to the public.
However, if the claim does include personal injury, you have three years from the date of the action (i.e. from the date of injury) or three years from the date of knowledge (i.e. three years from the date you knew the injury was caused by the defective product). The latter being particularly important when bringing a claim for defective medical products.
Whilst the symptoms may be present, you may not know that they have been caused by the defective medical device or medication until some weeks or years later. The clock starts when you become aware of the link between the symptoms and the cause.
However, as mentioned above, even with personal injury claims, the claim must still be brought within 10 years of the product being brought to market. So if a product was brought to market nine years ago and you are now aware that the product or medical device is defective you only have one year to issue your claim with the Courts. We can help you if you are unsure of the limitation of a claim.
How long will my case take to run?
Given the complexities involved in pursuing Product Liability claims, they can often take 18-24 months to conclude and longer if Court proceedings have to be issued. Our investigations start by obtaining all relevant records, establishing your rehabilitation needs and identifying the appropriate Defendant. We will provide you with regular updates on the progress of your case to ensure that you are kept up to speed.
How much is my claim worth?
Given the vast area of injuries Product Liability may cover it difficult to assess the value of your injury at their outset, given the complexities involved. However, we will pursue two forms of compensation for you:
General damages – An award of money for the pain and suffering you have endured as a result of your injuries.
Special damages – An award of money for all of your out of pocket expenses such as travel expenses, medication costs, loss of earnings, treatment costs both past and future. This list is not exhaustive and is very case-specific.
Why use Oakwood Solicitors to make your Product Liability case?
We have a dedicated team of solicitors and paralegals who have many years’ experience between them in running cases of this nature. They are highly trained to deal with all aspects of Product Liability.
We want to ensure at Oakwood Solicitors that clients are not overwhelmed by legal jargon, medical terms that they don’t understand and to allow the claims procedure to be as transparent as possible.
How is my case funded?
The majority of Product cases are funded by a Conditional Fee Agreement, more commonly known as a ‘no-win, no-fee’ agreement. This means that there will be nothing to pay upfront and nothing to pay if the claim has been lost. If you are successful in your claim a deduction of up to 25% of damages will be taken to cover the success fee and the shortfall in legal fees. This will be calculated and evidenced at the conclusion of your claim but any deduction for costs will not exceed 25%.
It may also be the case that an After The Event (ATE) insurance policy will be obtained to cover the costs of expensive medical reports and investigations. If an ATE insurance policy has to be obtained the cost of the same will be discussed with you at the appropriate point.
The cost of the ATE insurance policy is again taken from your damages and only payable if you are successful with your claim.
WHAT TO DO NEXT
If you wish to enquire about escalating a potential Product Liability claim, get in touch today for a free initial consultation. Choose one of the methods on the right-hand side of this page, or call us on 0113 200 9787 to find out how we can help you.
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