UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
• causation. Defect
existence of a learned intermediary (such as a surgeon) and warnings provided to that inter - mediary, as well as compliance with regula - tory standards. Damage Under Section 5, damage means death or per - sonal injury, or any loss of or damage to property (including land). Under the CPA, a defendant is not liable for the loss of or damage to the prod - uct itself, nor for any damage which is not for private use, occupation or consumption. The total amount of damages to be awarded must exceed GBP275. Causation A claimant must prove that the damage claimed was caused wholly or partly by the defect in the product. Where any damage is caused partly by the defect in the product and partly by the fault of the person suffering the damage, the normal rules in relation to contributory negligence apply. The “but for” test is the primary method for prov - ing causation under the CPA. This means that a claimant must demonstrate that “but for” the defective product, the resulting damage or injury would not have occurred. In Gee, in light of its findings on defect, the court declined to rule on what a claimant must estab - lish in order to prove causation where the defect is one that increases a background risk inherent in the product. DePuy argued that a doubling of the risk was required, but that point remains to be resolved on another occasion. Claims in Negligence In addition to strict liability claims under the CPA, the manufacturer of a product, together with other relevant parties in the supply chain (a supplier, distributor, etc), can be liable in com -
Under Section 3, there is a defect in a product “if the safety of the product is not such as persons generally are entitled to expect” . Safety in rela - tion to a product includes: • safety with respect to products comprised in that product; • safety in the context of risks of damage to property, as well as death or personal injury; • the manner in which, and purposes for which, the product has been marketed; • the use of any mark in relation to the product; • the use of any instructions for or warnings with respect to the use of the product; • what might reasonably be expected to be done with or in relation to the product; and • the time when the product was supplied by its producer to another. In the leading case of Gee & Others v DePuy International Limited [2018] EWHC 1208 (QB), Andrews J provided the following guidance on the definition of “defect” under the CPA. • Where the development of the alleged defect is one of the normal risks inherent in the use of the product, a defect is characterised in such a product by the abnormal potential for harm – ie, the feature that increases the underlying risk beyond the level of safety the public is entitled to expect. • In deciding what circumstances a court can take into account, a court must maintain a flexible approach, and the relevant cir - cumstances and the weight given to those circumstances will vary from case to case. • A product’s benefits, cost and avoidabil - ity were features that could, in appropriate cases, be taken into account, as was the
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