The Consumer Protection Act 1987 shifts the burden of defending a product on to the manufacturer or producer once the plaintiff has prima facie evidence that his or her injury was caused by a 'defect' in the product as defined by the Act.Further, the Act imposes more stringent requirements than the law of negligence and, with regard to the consequences of foreseeable misuse of the product, beyond a normal contractual obligation.

A claim brought under the Act does not preclude a parallel claim in negligence and/or contract.

The Act is limited in its scope (eg the product must have been supplied in the course of business but used for personal purposes) and financial compensation is restricted in scope, but it does provide real tactical and substantive advantages to the plaintiff.The Act purports to be the implementation of the Product Liability Directive 1985 and incorporates the optional so-called 'development risk defence' following successful lobbying from industry (and most particularly the pharmaceutical industry) thus avoiding the imposition of strict liability irrespective of whether the product defect(s) were or should have been foreseeable.

The 'defence' as enacted is wider than that set out in the Directive, namely that 'the state of scientific and technical knowledge was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect'.

The wording in the Directive is that 'the state of scientific and technical knowledge at the time when he (the manufacturer) put the product into circulation was not such as to enable the defect to be discovered'.Although the Commission was reported to have plans to take the UK government to court on this point, thus far there do not appear to be any proceedings.Interestingly, the option to cap any awards of damages was not adopted by the UK government.

Some governments have opted for strict liability with caps on any awards in damages.The Product Liability Directive is enacted in ss.1 to 7 of the Act which came into force in March 1988.

Notwithstanding the publicity and hype which surrounded its passage through Parliament, six years on there are still no reported cases interpreting these sections.

There is frustratingly little hard data (though quite a bit of anecdotal) evidence as to how often and how successfully the Act is invoked by law firms countrywide providing compensation for a plaintiff where a case brought in negligence or contract would have failed.

The increase in county court jurisdiction from £5000 to £50,000 in 1991 may well have reduced the pool of cases for reporting purposes, and small and/or strong cases are frequently settled well before a hearing to reduce the risks of bad publicity for the product concerned.

Another explanation for the dearth of reported decisions is that the Act is being under-used with the consequence that many potentially successful plaintiffs may be missing out on compensation for accidents caused by domestic use.There are considerable potential advantages to the plaintiff's lawyers in locating other claims relating to the same or very similar products.

Expert information and defendant responses can be shared and conferences and responses co-ordinated with cost and tactical benefits.

Edwina Dunne at the Law Society is knowledgeable and approachable (tel 071-320 5713 with 24-hour answering machine).

She is keen to put members of the profession in touch with each other so that they can pool resources on claims ranging from existing or budding multi-party litigation (ten claims or more) or with a view to pursuing an individual case or co-ordination of small groups.

She monitors the 'Help please' advertisements in the Gazette, the APIL newsletter and other relevant publications and is in possession of extensive data provided by the Legal Aid Board.

The Law Society also maintains a wide-ranging list of expert witnesses from which an expert can be selected (advice is available on 071-320 5710 9.30am to 1pm weekdays) and there are plans to provide this and much else in a directory format.Notwithstanding Miss Dunne's considerable personal knowledge, the information she holds on non multi-party litigation is in part dependent on the voluntary contributions of individual firms up and down the country.

Inevitably, therefore, though it is extensive, ranging from, for example, oven cleaners to silicone breast implants, it is by no means comprehensive.When asked about 'Femodene' Miss Dunne found a case on 'Minulet' but none under 'Femodene'.

Three are known to be under investigation and planning to co-ordinate resources.

At least one case is currently proceeding following diagnosis of veinous thrombosis causing major loss of vision in the affected eye allegedly due to ingestion of Femodene.

Keith Green of Oxley & Coward, Rotherham, would welcome contacts if any others have Femodene or similar claims.The Law Society's list noted two ABRU aluminium ladder cases under investigation.

The product liability special interest group of the Association of Personal Injury Lawyers (APIL) knows of at least ten claims alleging the collapse of such ladders sold for domestic use, some of which are expected to reach the tri al stage shortly.

The secretary to APIL's product liability group, Trevor Ward of Linder Myers, Manchester (tel 061-832 6972), who is personally instructed in some ABRU ladder cases, is keen to learn whether there are any others.

He and Paul Ashurst of Russell Jones & Walker, London (tel 071-837 2808), co-ordinator of this group, are anxious to hear of any 'defective' or otherwise product liability claims from pharmaceuticals to motor cars with a view to expanding the APIL product liability data and also its list of recommended experts.A person who is injured by 'a product' (defined in s.1(2)) which is 'defective' within the terms of the Act and which he or she is using for personal purposes and which is supplied to him or her in the course of business is entitled to compensation for personal injuries suffered as a consequence of that use.

For the purposes of pt 1 of the Act, a product is deemed to be defective when it fails to provide the safety which 'persons generally are entitled to expect' (see s.3.1).Some products are inherently dangerous (eg a slicer) and some only dangerous if defective or misused.

In either case, the failure to give adequate and clear instructions as to its careful use or the absence of proper warnings or the caution against misuse or abuse of it will cause it to become defective.

The essence of 'strict liability' (subject to the development risk defence) under the Act is whether the presence of any defect in the product (which includes its packaging and presentation as well as, for example, its design and quality of manufacture) renders it unsafe.

Shoddy goods which may be disappointing to the consumer and which may be hopelessly unfit for their purpose and may be 'unmerchantable' may nonetheless not be unsafe so that they cause injury (other than aggravation) and will not entitle the consumer to bring a claim under the Act.The test of safety must be interpreted in terms of the expectation of consumers.

Even so, the courts will have to apply an objective test, ie what persons generally are entitled reasonably to expect of a product and not a subjective one, ie what the individual consumer may have expected, however unrealistically.It is reasonable for persons generally to expect that food is uncontaminated and safe for human consumption.

In June 1989 some 28 people in the north west of England suffered from botulims poisoning after eating hazelnut yoghurts manufactured by Acorn Foods, with hazelnut pure produced by Young's Foods Ltd.

The allegation which was substantiated by medical evidence was that the yoghurts had been contaminated by toxin clostridium botulinum.

Botulism is a serious and rare condition which attacks the central nervous system and can cause paralysis.

Most of the cases did not require ventilation or intubation but suffered symptoms similar to a mild stroke, eg paralysis of the face, sometimes of the throat, blurred vision, indistinct speech, and difficulties with eating and drinking and the cause was not immediately detected.

Others suffered very serious symptoms requiring ventilation, intubation and life support and there was one fatality.Actions were brought against the seller (yoghurt not of merchantable quality) and the two manufacturers under the l987 Act on the grounds that the product was 'defective', with the seller joining the manufacturers.

Criminal proceedings were brought in Preston Crown Court against the director of Youngs as the manufacturer of the contaminated pure and resulted in a guilty plea and a fine of £3000.

Settlements were thereafter accelerated.

A full account of this case by Catherine JB Leech of Pannone Napier (Manchester) is due to be published in the APIL newsletter.By contrast, the ABRU aluminium ladders, when supplied, apparently did comply with existing British standards (though expert advice is that the Consumer Research Unit plans to convene a sponsored research project into ladder safety), which would entitle persons generally to expect that such a ladder will not collapse during normal use by a person weighing less than the maximum indicated on the label.

Obviously, if an injured user was also the purchaser, he or she could claim in contract as well as under the Act and may well wish to do so in order to recover the cost of a replacement ladder.

It would be for the manufacturer to prove that the ladder was not defective either due to poor design and/or construction quality or a failure to warn in some way.The consumer safety report by the secretary of state for trade and industry, 1 April 1992 to 31 March 1993 (and see also the work of the Consumer Safety Unit), may provide powerful or conclusive evidence that a particular product is or was defective; that it caused the injury complained of at the material time by virtue of the fact that the manufacturers or producers or importers have been prosecuted for failing to comply with safety Directives and regulations in force; or that they are likely to have been in breach; or where existing standards (or a lack of them) are currently being investigated with a view to review in respect of particular products or their components.

The review includes useful statistics and updates on the situation in the European Union as well as the UK.

Only France has failed to implement the 1985 Directive.As many 'defective' product cases are now moving up the legal pipeline towards trial, the next few years may well bring some overdue judicial interpretation of the Act's provisions.