How to establish fault in a defective product claim

When we purchase a new product, we have every right to expect that it will reach us in perfect condition. It should be box fresh, and, most importantly, safe to use. Unfortunately, this is not always the case. Sometimes product standards can slip through the safety checks and end up on the shelves. While in most cases this will be a mild annoyance and will usually result in a no-quibble refund or replacement, in some cases it can lead to a personal injury.

The Consumer Protection Act 1987 introduced strict liability for damage arising from defective products in the UK. If you have suffered a personal injury due to a defective product you could be entitled to file a claim for compensation.

What is a defective product?

According to the Consumer Protection Act, a product will be considered defective if it did not meet the legitimate expectations of persons generally using it. This takes into account the manner in which, and the purposes for which it was marketed. Any instructions or warnings which accompanied the product would also be taken into consideration.

What products does the Consumer Protection Act 1987 cover?

The act covers all kinds of consumer goods. This includes medical devices such as artificial hip components and pacemakers, as well as pharmaceuticals. It includes products that are used in the workplace and products that are commonly used as components of other products such as engine parts.

Some types of services are also covered by the act, and this might include services such as an injury caused by a hairdresser or a personal trainer.

What might constitute an injury caused by a defective product?

‘Injury due to defective products’ covers a wide range of accidents and incidents. Examples of some of the types of accidents you might be able to claim for include:

  • Food poisoning from contaminated food.
  • Scarring or rashes caused by defective cosmetics.
  • Burns caused by electrical equipment catching fire.
  • A break caused by falling off a faulty ladder.

In any of the above cases you would be able to file a personal injury claim against the retailer who sold the product to you, the item’s manufacturer, or the service provider who caused the injury.

How do you make a defective product claim?

Initially, it’s quite likely you will meet stiff resistance from the retailer and manufacturer to your claim, whether you’re trying to secure a refund, a repair or a replacement.

To make a successful claim, there are a number of things that you should do. Firstly, take detailed photographs of the item, showing any obvious signs of damage or fault in your photographs. Make detailed notes about the accident, complete with the date and place where it happened. Explain how the incident happened in some detail in your notes.

You should keep hold of all the documentation relating to the product, particularly your proof of purchase. This doesn’t have to be the purchase receipt. Bank records, credit card statements can all be valid. All that matters is that you can show that you purchased the item from a particular retailer.

If you are planning on claiming for other expenses, such as the cost of medication, treatment, travel for appointments and loss of earnings, you will also need to keep all receipts as evidence.

Reporting the incident and making a claim

You should report the incident as soon as possible. If the problem occurred within 30-days of making the purchase you should contact the retailer, inform them that you are rejecting the item and request a full refund. If it occurs after 30 days have passed, you still have a right to have the item either refunded or replaced. If the problem has occurred within the guarantee period, contact the manufacturer directly.

If both the retailer and the manufacturer still refuse to address your complaint you should write a formal letter that informs them that you will be rejecting the faulty item under the Consumer Rights Act 2015. You should also state your intention to pursue the matter in the small claims court if a full refund is not offered.

The quicker you act, the more likely your compensation claim is to succeed. The longer you take, the more difficult it can be to prove your claim and to establish where fault lies.

What is strict liability?

If a claimant can establish that the product was defective and the defect was the cause of their injury, they will be likely to receive damages. It’s not necessary to establish direct fault, negligence or avoidability but it is essential to prove that there was a causal link between the defect and the harm.

The defendant may be able to use the “development risk/state of the art” defence, if they can demonstrate that the defect was not discoverable by using all accessible knowledge at the time the product was supplied.

Why hire a personal injury solicitor to help you with your claim?

When you hire a personal injury solicitor, they will undertake a full assessment of your defective product claim and assess its relative strength. They will then be able to advise whether or not a claim is likely to succeed and if you should proceed.

The experienced team at Mark Reynolds Solicitors can offer you discreet and professional advice about your defective product claim. Contact us today to find out more about how we can help.