Consider whether the Consumer Protection Act Essays

Consider whether the Consumer Protection Act Essays Consider whether the Consumer Protection Act Essay Consider whether the Consumer Protection Act Essay See whether the Consumer Protection Act 1987 has made a important difference to patients who suffer hurts as a consequence of faulty medical merchandises. This essay will briefly see the place of patients who suffered hurts as a consequence of faulty medical merchandises prior to 1988. The piece will so see the effectivity of the Consumer Protection Act 1987 and supply an analysis of the relevant instances to day of the month. Before the Consumer Protection Act 1987 was enacted, patients who were injured as a consequence of faulty medical merchandises had really limited options in footings of recovery. Where a consumer had himself bought the merchandise so he may hold been able to action in contract. This would usually be through the operation of the Sale of Goods Act 1979 which implies footings that the goods must be of satisfactory quality [ 1 ] and that the goods must be moderately fit for the intent for which they are sold [ 2 ] . However, contractual redresss are of limited relevancy to consumers who suffer drug-related hurts [ 3 ] as it is unusual for a contract to be straight between the consumer and the medicine’s maker. Furthermore, where a drug is prescribed under an NHS prescription, there is no contract with either the druggist or the physician who wrote the prescription. InPfizer Corporation v Minister of Health[ 4 ] it was held that payment of the charge for prescription drugs does non amount to a sale for contractual intents. This is because there is no existent freedom to contract, the druggist is duty edge to supply the drugs if presented with a prescription and the payment of the charge, and besides because the charge does non amount to the true monetary value of the drug. The lone other possible cause of action for those injured by faulty medical merchandises before the Consumer Protection Act 1987 came into force was that of a claim in carelessness. This was ( and still is ) available where the consumer could turn out that she was owed a responsibility of attention, and that the manufacturer’s breach of that responsibility caused her hurt [ 5 ] . There are loosely three different types of defect which might be identified in a merchandise: fabrication defects ; design defects ; and, failure to give equal warnings [ 6 ] . Where the defect is a fabrication defect, it will be comparatively straight-forward to turn out that there has been a breach of responsibility as failure to guarantee that medical specialties leave the manufacturer’s premises in a province tantrum for human consumption will by and large bespeak carelessness. However, where the defect is one in design the job is more complex. As no drug can of all time be without effects, side effects can be inauspicious and unanticipated. The claimant would hold to p-rove foreseeability of hurt and that providing the merchandise was unreasonable. It will probably be really hard for the claimant to derive entree to the needed information for cogent evidence and research tests can non be expected to detect every possible side consequence in every possible consumer. A care lessness claim in these fortunes is hence debatable. Similarly, where it is alleged that a warning was faulty, a consumer will be contending against the fact that once more, no drug is wholly safe for everybody and a maker will hold acted moderately if he took sensible stairss to alarm consumers to the hazard of some side consequence. Furthermore, the claimant must besides turn out causing. This is hard because she must turn out that she would non hold taken the drug in inquiry if she had been warned of the peculiar side consequence. As hazards of side effects are by and large low, the job here is obvious. In the 1970s there was a motion in Europe towards integrating a rigorous liability government for hurts cause by faulty merchandises, in portion caused by response to high profile drug jobs such as those associated with the Thalidomide catastrophe [ 7 ] . In 1976 a bill of exchange Directive was presented by the European Commission to the Council Ministers, and in 1977 the European Convention on Products Liability in respect to Personal Injury and Death ( Strasbourg Convention ) [ 8 ] was signed. However, subsequent old ages saw a diminution in involvement for generalised reform. In the UK, the Pearson Commission did non urge no-fault compensation and instances such as Opren and blood taint were regarded as one-off catastrophes [ 9 ] After via media in footings of inclusion of a ‘development hazards defence’ , a 2nd version of the Directive was accepted. It was implemented in the UK by the Consumer Protection Act 1987. This Act was designed to do it easier for patients to action the manufacturer of a drug they believe injured them [ 10 ] . The balance of this essay will see to what extent the Consumer Protection Act has succeeded in this purpose. Under the Consumer Protection Act 1987 a claimant seeking compensation from the maker need merely turn out ( 1 ) that the merchandise was faulty and ( 2 ) that the defect in the merchandise caused the hurt. It is said that rigorous liability is fairer to claimants because it establishes that duty for an hurt caused by a faulty merchandise is borne by the individual making the hazard and profiting financially from the merchandise [ 11 ] . Furthermore, the maker is in the best place to exert control over the safety and quality of the merchandise and can see against hazards. The Act imposes rigorous liability on makers and, where a provider can non or will non supply inside informations of the maker, on providers besides, for faulty merchandises which cause physical hurt, or belongings harm greater than five 100 euros, though pure economic loss is non covered. Any claim under the Act, in order to be successful, must be brought within three old ages of the find of the harm or hurt, and there is a maximal clip bound of 10 old ages from when the merchandise was first put into circulation [ 12 ] . This clip bound makes it easier for makers to see against liability, but it will necessarily go forth some people uncompensated as some inauspicious reactions can take many old ages to attest themselves. As the Act applies merely to drugs put into circulation after it came into force on 1 March 1988, it could be expected that there would be comparatively few instances brought under the statute law in the first old ages, yet Lord Griffiths [ 13 ] thought that once it was no longer necessary to turn out carelessness, there would be a â€Å"significant increase† in merchandise liability judicial proceeding. Stapleton has attempted to explicate the possible grounds for the Act’s limited impact and concludes: â€Å"In my position, the most convincing account for this no-significant-impact phenomenon is merely that the new jurisprudence barely advances the place of the consumer at all†¦ Save in a few peripheral contexts, no greater liability is imposed by the Directive than already exists under the other two chief causes of action available to victims of faulty products.† [ 14 ] In order to analyze the effectivity of the Consumer Protection Act it is necessary to find what the Act applies to. Medicines and medical devices are ‘products’ for the intents of the Act, but until reasonably late, it was ill-defined whether human organic structure tissues or fluids would be covered [ 15 ] . InA 5 National Blood Authority[ 16 ] it was accepted that blood is a merchandise under the Act. It hence seems likely that gametes will be capable to the Act’s commissariats, although the position of variety meats is as yet ill-defined [ 17 ] . Possibly one of the countries from which jobs stem in the Consumer Protection Act, is the significance of ‘defective’ . Section 3 ( 1 ) of the Act provides that: â€Å"†¦ there is a defect in a product†¦ if the safety of the merchandise is non such as individuals by and large are entitled to expect.† Observers have criticised this as merely repeating the inquiry: how safe are individuals entitled to anticipate a merchandise to be? [ 18 ] Thereby organizing a round statement [ 19 ] . Section 3 ( 2 ) of the Act goes on to direct the justice to take history all relevant fortunes, including, though non entirely [ 20 ] : â€Å" ( a ) the mode in which, and the intents for which, the merchandise has been marketed, its get-up, the usage of any grade in relation to the merchandise and any instructions for, or warnings with regard to, the making of anything with or in relation to the merchandise ; ( B ) what might moderately be expected to be done with or in relation to the merchandise ; and ( degree Celsius ) the clip when the merchandise was supplied by its manufacturer to another.† The Act does non separate between fabrication, design or failure to warn defects. The definition applies easy to fabricating defects, where the merchandise is less safe than it should hold been because of a faulty production procedure, but in the instance of medicative merchandises, fabrication defects are highly rare [ 21 ] . It is more usual for claimants to aver that the design was faulty, or that they were inadequately warned about a peculiar hazard, and in both of these state of affairss, working out what degree of safety people are entitled to anticipate becomes debatable. It may be argued that consumers may neer anticipate to be injured by a particu7lar merchandise, so that any merchandise which causes in jury is faulty [ 22 ] . However, the trial is an nonsubjective one and, where medical specialties are powerful plenty to change physiological map it may be expected that they will on occasion do inauspicious reactions. Ferguson has suggested another ground why the consumer outlook trial is awkward in its application to pharmaceutical merchandises: â€Å"While one can accept that consumers may develop certain outlooks as to the safety of most consumer goods, pharmaceutical drugs and devices are in a different place since they have to go through rigorous demands, laid down by authorities organic structures, before they can be marketed. It is arguable that a consumer should non anticipate a merchandise which has satisfied the criterions imposed by such organic structures to be any safer than in fact it is† [ 23 ] In other words, if the CSM decided that the medical specialty is sufficiently safe, it would so look odd for a tribunal to make up ones mind that consumers are entitled to anticipate it to be safer. It has been suggested that before the judgement inA 5 National Blood, the tribunals appeared to bespeak that what consumers were entitled to anticipate depended upon the rationality of the defendant’s behavior, and that this in bend â€Å"looks really like an appraisal of whether the suspect was negligent† [ 24 ] . InWorsley V Tambrands Ltd[ 25 ] the claimant suffered toxic daze syndrome which she alleged was caused by a tampon manufactured by the suspect. The claimant had read the cusp included with the box of tampons but her hubby had so thrown it off before she became sick, and as a consequence the claimant did non instantly acknowledge the symptoms and she became unwell. Once she had recovered she alleged that the maker of the tampons had negligently failed to warn her of the hazards of toxic daze syndrome and that the merchandise was faulty under the Consumer Protection Act due to the unequal warnings. The Court rejected the entry that the warnings were unequal and found that the maker had taken the stairss a consumer was entitled to anticipate by ( 1 ) seting a clearly legible warning on the exterior of the box which directed the user to the information cusp and ( 2 ) supplying a clear and unambiguous warning about symptoms and necessary action on the cusp. Similarly, inRichardsonV LRC Products Ltd[ 26 ] the claimant became pregnant when the rubber her hubby used fractured during intercourse. The claimant alleged that the rubber was faulty because it failed. There was conflicting adept grounds in the instance as to when oxidation of the rubber cloth had occurred, with the claimant contending that it was during industry and the suspect reasoning that it was after the break had occurred, whilst being stored in a bathroom closet. The Court decided that although users did non anticipate rubbers to neglect, individuals by and large could non anticipate any method of contraceptive method to be 100 per cent effectual. It was held that the rubbers in inquiry were manufactured to a more demanding criterion than the relevant British Standard. Yet once more, this appears to be taking into history the reasonableess of the defendant’s behavior when proving the merchandise. As Jackson concludes [ 27 ] : â€Å"But if the degree of safety peopl e are entitled to anticipate can non be measured without mention to therationalityof the defendant’s behavior, ‘strict liability’ may be identical from negligence† . Furthermore, inFoster V Biosil[ 28 ] the claimant had undergone chest implants after a bilateral mastectomy. She brought proceedings under the Consumer Protection Act avering that the implants were faulty as the left implant had ruptured. The suspect alleged that the rupture was caused by the sawbones ‘nicking’ it on nidation but the justice rejected this. It was held that the claimant was obliged to turn out the fact of the defect and besides the cause of it, thereby turn outing that the maker had non taken sensible attention. However, this line of instances was interrupted byA 5 National Blood Authority[ 29 ] mentioned supra. This instance has been described as â€Å"by far the most of import instance yet to construe the Consumer Protection Act 1987† [ 30 ] It concerned claims by patients infected with hepatitis C from blood and blood merchandises through blood transfusions after 1 March 1988. The suspects conceded that blood fell within the definition of merchandises for the Consumer Protection Act 1987. It was decided by the tribunal that the commissariats of the Act must be interpreted in visible radiation of the European Product Liability Directive, and that where there were any evident incompatibilities, the Directive should be preferred [ 31 ] . It was the Court’s sentiment that, in finding whether the contaminated blood was faulty, the inquiry was what the legitimate outlooks of the populace were in relation to the merchandise. Peoples expected blood to be clean, and whether the relevant defect was evitable or non was non the issue. The suspects argued that the populace could merely anticipate that they would hold done what was possible to test the blood and avoid the taint, but this was non followed. The Court adopted a differentiation between standard merchandises, which are as the manufacturer intended them to be, and non-standard merchandises which differ. Where a non-standard merchandise is in issue, the populace at big should non be taken as knowing that the merchandise is inescapably insecure. InA 5 National Blood Authoritythe suspects besides attempted to raise the ‘development risks’ defense mechanism contained in subdivision 4 ( 1 ) ( vitamin E ) of the Consumer Protection Act 1987 which provides â€Å"†¦ the province of scientific and proficient cognition was non such that a manufacturer of merchandise of the same description as the merchandise in inquiry might be expected to hold discovered the defect† . The Court went back to the Directive and held that as the hazard was known it did non count that testing processs had non at the clip been developed. This determination hence sum to doing the defense mechanism one of the defect being unascertainable. Equally far as standard merchandises are concerned, the opinion inA 5 National Blood Authorityhas non had an impact, and the old line of instances continues. InPiper V JRI ( Manufacturing ) Ltd[ 32 ] a hip replacing which fractured after 18 months was accepted as faulty. The maker argued that the hip must hold been damaged on nidation, and hence that the defect did non be at the clip it was put into circulation. The adept grounds was extremely conflicting and the Court did non prefer either side. However, the Court decided that the defect would had to be missed by a figure of persons if it were present at the clip it was put into circulation. So, although the instance did non turn straight on the diction of the Act it â€Å"adds to a losing tally for claimants in instances in which the debut of no-fault liability has failed to capture the enthusiasm of the bench† [ 33 ] . It has been argued that a risk/benefit attack may run more efficaciously in instances refering medical merchandises than the consumer outlook trial presently in operation [ 34 ] . Goldberg [ 35 ] provinces that â€Å"there is an built-in logic in turn toing the jobs of faulty medicative merchandises by weighing the hazards against the awaited benefits and against the ‘costs’ of non utilizing the product†¦Ã¢â‚¬  . Furthermore, before the judgement inA 5 National Blood AuthorityGrubb and Pearl [ 36 ] wrote that the public-service corporation of blood, coupled with the absence of any less unsafe option, were likely to take a tribunal to reason that blood is non faulty and that hence rigorous liability would non be applied. In decision, the Consumer Protection Act 1987 has non resulted in the significantly higher degrees of judicial proceeding expected. This may in portion be because the significance of defect has been ill-defined and possible claimants have been put off by the instances decided. However, since the determination inA 5 National Blood Authoritynon-standard merchandises, at least, are genuinely considered on a rigorous liability consumer outlook footing. This is despite old concerns that the Consumer Protection Act was being interpreted as offering no more to claimants than an ordinary carelessness claim. Yet, it is possibly non the instance that claimants are non being served by the Consumer Protection Act as it is unknown how many instances are now settling because of it that antecedently would hold gone to test, conveying all the emphasis to claimants that that entails. Bibliography M Brazier A ; E CaveMedicine, Patients and the Law( 4ThursdayEdn, Penguin, London 2007 ) E Deards A ; C Twigg-Flesner, ‘The Consumer Protection Act 1987: cogent evidence at last that it is protecting consumers’ ( 2001 ) 10 ( 2 )NottinghamLaw Journal1 WCH Ervine, ‘Satisfactory Quality: What does it Mean? ’ ( 2004 )Journal of Business Law684. P Ferguson,Drug Injuries and the Pursuit of Compensation( Sweet A ; Maxwell, London 1996 ) R Goldberg, ‘Paying for Bad Blood: Rigorous Product Liability after the Hepatitis C Litigation’ ( 2002 ) 10Medical Law Reappraisal165 Lord Griffiths, P De Val A ; RJ Dormer, ‘Developments in English Product Liability Law: A Comparison with the American System’ ( 1988 ) 62Tulane Law Review353 A Grubb A ; D Pearl,Blood Testing, AIDS and DNA Profiling( Jordan and Sons, Bristol 1990 ) J HerringMedical Law and Ethical motives( 2neodymiumEdn, Oxford University Press, Oxford 2008 ) E Jackson,Medical Law: Text, Cases, and Materials( Oxford University Press, Oxford 2006 ) M Mildred, ‘Pitfalls in merchandise liability’ ( 2007 )Journal of Personal Injury Law, 141 P Shears ‘The EU Product Liability Directive – twenty old ages on’ ( 2007 )Journal of Business Law884 J StapletonMerchandise Liability( Butterworths, London 1994 ) J Stapleton, ‘Products Liability in the United Kingdom: The Myths of Reform’ ( 1999 ) 34TexasInternational Law Journal45 H Teff A ; C MunroThalidomide: The Legal Aftermath( Farnborough, Saxon House 1976 C Twigg-Flesner, ‘The Relationship Between Satisfactory Quality and Fitness for Purpose’ ( 2004 ) 63CambridgeLaw Journal22 Table of Cases A 5 National Blood Authority[ 2001 ] 3 All ER 289 Donoghue V Stevenson[ 1932 ] AC 562 Foster V Biosil( 2000 ) 59 MBLR 178 Pfizer Corporation v Minister of Health[ 1965 ] 2 WLR 387 Piper V JRI ( Manufacturing ) Ltd[ 2006 ] EWCA Civ 1344 Richardson V LRC Products Ltd[ 2000 ] PIQR P164 Worsely 5 Tambrands Ltd[ 2000 ] PIQR P95 1