Product liability and the benefits of joining a group (multi-party) action
Posted on 12th March 2020
What are product liability claims?
When an individual has been injured as a result of a faulty product, it may possible to bring a claim for compensation against the manufacturer, suppliers, distributors or retailers of the product under the Consumer Protection Act 1987. Under this Act, a product is defective if the safety of the product is not such as persons generally are entitled to expect.
When determining for the purposes of what a person is generally entitled to expect, all the circumstances will be taken into account, including: the manner in which and the purposes for which the product has been marketed; the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to 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.
Consumers affected by a faulty product can also bring a claim of breach of contact against the supplier, distributor or retailer of the product under the Consumer Rights Act 2015.
Types of product liability claims
Some examples of potential product liability claims are:
- Injuries caused by defective medical devices
- Injuries caused by defective medical implants
- Injuries caused by defective medication/pharmaceutical drugs or vaccines
- Injuries caused by contaminated medical products
- Accidents or injuries caused by a defective vehicle
- Injuries caused by a defective piece of equipment or appliance
How to make a product liability claim and what you need to prove
In order to succeed with a claim under the Consumer Protection Act 1987, you will need to prove that (1) the product was defective (2) you were injured and/or suffered a loss (3) there is a causal link between the defective product and the injury and/or the loss and (4) you were using the product as it was intended.
Once you become aware that you have suffered an injury as a result of a defective product, it is important to try and find the receipt/proof of purchase and request a copy of the product identification record to ensure it is amongst the batch of faulty products. You should then contact us and we will be able to advise you who is legally liable for the faulty product and notify the manufacturer, supplier, distributor or retailer of the claim. We will then obtain the necessary evidence to prove you claim and secure the compensation you are entitled to.
For adults and those with mental capacity, Court proceedings must be issued within 3 years of the date of injury/damage or, if later, three years from the date of knowledge (when you found out that the injury sustained was caused by a defective product), or the right to claim is extinguished.
The Limitation Act 1980 also introduces a 10 year longstop rule which requires that Court proceedings for claims for personal injury caused by a defective product, brought under the Consumer Protection Act 1987, must be issued within 10 years from the date that the product was put into market circulation. It is therefore very important that you seek legal advice as soon as possible.
Product liability claims can be very expensive to run and in some cases bringing claims individually would not be a practical as the costs likely to be incurred would exceed the potential damages sought. When a group of people are affected by the same issue, it is becoming more and more common to bring the claims collectively as part of a group action, also known as a multi-party action. It is often daunting for individuals to bring a claim against a Defendant who, more often than not will be a large well-resourced company.
Benefits of Group Action
There are many advantages for an individual to join a group action. By acting as one large group, the risks and costs associated with the litigation is spread out between all the Claimants and their legal representatives. Knowledge and expertise between the legal representatives can also be shared.
Working collectively in a group action also means there is strength in numbers. There can be hundreds and even thousands affected by the same issue. It can be comforting for individuals to be amongst others who have also been affected by the same issue. It also creates a level playing field when litigating against a large corporation.
Within a group action, compensation for each claimant is dealt with on a case by case basis. Some individuals may have a modest claim which may not justify the legal fees which are likely to be incurred. However, by being part of the group action, it enables those who may have a smaller claim to also claim the compensation they deserve.
The Court can grant a Group Litigation Order (GLO) where multiple claimants share a common or related issue of fact or law. Typically, a selection of ‘test cases’ will be selected from the group and a decision will be made on those cases. The rest of the group will then hopefully benefit of the decision without having to go to Court. This is also very cost effective for the group as the test cases will be collectively funded which will be significantly less than the costs of bringing an individual claim.
Examples of our ongoing group actions
Our product liability solicitors have obtained millions of pounds in compensation for our clients. Examples of our ongoing going cases include –
Pandemrix – 2009 -20010 swine flu vaccine
One of the largest multi-party product liability claims against GlaxoSmithKline for serious neurological injury (narcolepsy) caused by the 2009-10 pandemic swine flu vaccine.
Oculentis – defective intraocular lenses
Multi-party product liability claim against ophthalmic retailers, Oculentis Bv and Oculentis GmbH and other relating to injury and loss caused by defective intraocular lenses. The Claimants all had lens replacement surgery but their prosthetic lens has calcified due to contamination in the manufacturing process, resulting in the need for revision surgery or permanent loss of vision.
BIA-ALCL – breast implant litigation
Product liability claims for claimants with breast implant associated anaplastic large cell lymphoma.
No Win No Fee funding available
At Hodge, Jones & Allen Solicitors, we can operate on a ‘No Win No Fee’ basis for a product liability claim. This means that you won’t have to pay our fees up front, After the Event Insurance (ATE) will cover you for any adverse costs, in the event your claim is unsuccessful. This type of insurance policy will step in to protect you against your opponent’s costs and our disbursements required for the case, in the event you lose your claim. Alternatively, you may have Legal Expenses Insurance (LEI) attached to your insurance policy with your motor, home or travel insurance which you can use to fund a claim.