The concept of strict liability has been established in English law for more than a decade.

Since the implementation of the Consumer Protection Act 1987 it has been recognised that a producer of a defective product has to make good the damage caused by that product regardless of whether there is negligence on the part of the producer.

The Act has recently been significantly amended by the Consumer Protection Act 1987 (Product Liability) Modification Order 2000, which came into force at the beginning of December.This order extends the definition of a 'product' to cover all moveable products, including electricity.

As a result of this amendment, agricultural products and game will now be included within the scope of the Act.

Agricultural products include produce of the soil, of stock farming and of fisheries.Whereas liability for farm produce previously stopped at the farm gate, now farmers and fishermen will be liable for any damage caused by their product to consumers' well-being or their property.The order was introduced as a direct result of the bovine spongiform encephalopathy (BSE) crisis, as it was thought that extending the scope of the Act would help restore consumer confidence in the safety of agricultural products and, of course, allow consumers to claim compensation for such products as were defective.The extension of liability in this way could have far-reaching consequences.

For example, take the situation where a consumer contracts salmonella from eating chicken in a restaurant.

Not only could the restaurant owner be potentially liable for the harm caused but now so could the farmer.

The farmer could escape liability under the Act if he could show that it was probable that the defect did not exist at the time the chicken was put into circulation by him.

In view of all the steps which take place from 'farm to fork', it may be possible for a farmer to convince a court of this probability.Difficulties could arise in cases where consumption of a product causes ill health but the ill health does not occur immediately, as in the case of BSE.

Under the Act, a claim cannot be made if more than ten years have elapsed since the product was first supplied.Also in the case of diseases with long incubation periods, the issue of proof will be an especially difficult problem for consumers to overcome.

In particular, the question of the origin of the product, the existence of the defect and the causal relationship will be particularly thorny problems in the case of harm arising from agricultural products.

In the case of BSE, for example:-- A consumer could have eaten beef from many different sources, making it difficult to identify the producer/s;-- As the beef is ingested it will be difficult to show that it was defective;-- In any event it maybe difficult to prove the scientific link between BSE in cattle and Creutz-Jakob disease (CJD) in humans.Therefore, it seems unlikely that the purpose for which the modification was introduced will be addressed by this amendment.

These difficulties have been recognised by the European Commission and were raised in the green paper on liability for defective products presented in June 1999.

The green paper raises several issues which may be the topic for possible future reform, including prescription periods and the burden of proof.It is recognised in the green paper that the current position whereby the extinction of liability arises after ten years has elapsed may exclude claims for latent defects.

Therefore, one of the suggestions raised in the green paper is that liability be extended to 20 years for latent defects.

This would allow consumers to bring actions against producers of agricultural products which can give rise to diseases with long incubation periods.The green paper also examines the problems faced by consumers in respect of proving the origin of the product, the defect and the causal relationship.

One possible suggestion contained in the green paper on how to overcome the problem of proving the origin of the product is the introduction of the principle of 'market share liability'.

This is a principle common to US law and has been used in relation to product liability cases involving medicines.

In such cases the consumer need only show that the product was defective and that the defect caused harm.

There is no need to prove the manufacturer's identity.

In such cases all manufacturers of the product will be liable regardless of its degree of liability.

The most solvent of the manufacturers will be liable to the consumer for the payment of compensation.

In turn that manufacturer must seek a contribution from the other manufacturers.

The introduction of this concept would certainly overcome the type of difficulties identified above.Other suggestions mooted in the green paper to address the problem of the burden of proof, include inferring a causal relationship when the victim proves the damage, imposing a duty on the producer to provide all useful information to the consumer's case and making the producer pay for the expert evidence.

There is also a proposal for the introduction of a new standard of proof in respect of damage, defect and causal relationship.

That is to say, to succeed the consumer would only need to show that the probability of the aforementioned three elements was above 60%.Again, all of these suggestions, if implemented, would help consumers bring cases in respect of damage caused by agriculture products.The commission is currently assessing responses to the green paper and is expected to present a report shortly.