UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
3. Recent Policy Changes and Outlook 3.1 Trends in Product Liability and Product Safety Policy The last 12 months have seen important legisla - tive and policy developments, both domestically and within the EU. Whilst the UK is no longer part of the EU, it is increasingly important to understand areas of divergence. It is imperative for those advising UK producers and insurers to be aware of European law developments, given the potential implications for manufacturers and distributors selling into the EU, and insurers’ risks in relation to such products. The EU regime may well, also, influence parliament’s approach to future UK legislation, for reasons addressed in 3.2 Future Policy in Product Liability and Prod- uct Safety . The central development in the EU comes in the form of the (new) Product Liability Directive (EU) 2024/2853 ( “new PLD” ), which replaces and repeals the original Product Liability Direc - tive (85/374/EEC) (PLD). The original PLD was, of course, the basis for the Consumer Protection Act 1987, lending an even greater significance to the developments within the EU. The key fea - tures of the new PLD include the following. • The range of potential defendants is con - siderably widened in comparison with the original PLD. For example, a manufacturer’s authorised representative in the EU, a dis - tributor, a person who modifies a product, and the operator of an online marketplace are each, in some circumstances, susceptible to a claim by an injured consumer. • The range of claimants is substantially the same as the original PLD, but the new PLD makes express provision for subrogation.
gation) [2018] EWHC 1208 (QB), both of which involved claims under the CPA 1987 relating to the presence of alleged defects in hip prosthe - ses. The key principles arising from Gee are that the Court, agreeing with the earlier decision in Wilkes, held that a court could take a wide range of circumstances into account when determining whether a product was defective. In particular: • a court must maintain a flexible approach to the assessment of the appropriate level of safety, and the relevant circumstances and weight given to these will vary from case to case; • a product’s benefits, cost and avoidabil - ity were features that could, in appropriate cases, be taken into consideration when assessing whether a product is defective; • the rigid distinction between standard and non-standard products used by Burton J in A v NBA was to be rejected, although it might be a useful starting point in the analysis of whether a product is defective; • the existence of a learned intermediary (such as a surgeon) and warnings provided to that intermediary are relevant circumstances in assessing defect under the CPA, the weight given to which will differ from case to case; and • in an appropriate case, evidence of compli - ance with regulatory standards will have considerable weight, because they have been set at a level that the appropriate regulatory authority has determined is appropriate for safety purposes.
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