In summary:
We recently wrote about the UK Government’s wide-ranging consultation on reforming the UK consumer product safety framework (see here). We highlighted that, as part of that consultation – somewhat buried at the end of the section on enforcement – the Government announced that this consultation included consideration of reform of the UK’s civil product liability regime, which is currently set out in the Consumer Protection Act 1987 (the CPA) (as derived from the EU Product Liability Directive (PLD)).
The issues that the UK is now considering as part of that consultation – such as whether definitions of “product” and “defect” are fit for purpose given technological advances – have been the subject of much debate in the context of the EU’s proposed reform of the PLD for at least five years. It remains to be seen whether the UK will ultimately take such a dramatically pro-consumer path for reform as the EU has done.
What does the Government say in the consultation?
The Government's consultation documentation does not set out any concrete proposals for reform of the civil product liability regime. Detail is light, and our impression is that the Government is still in the early stages of considering reforms.
The two key concerns highlighted by the Government, which it states were raised by respondents to the Product Safety Review Call for Evidence in 2021, are as follows:
- whether the definitions of “product” and “defect” are adequate in relation to new technologies and increased innovation in product design. In particular – as products become more sophisticated and driven by complex software – liability may not always be clear, e.g. in relation to AI; and
- in relation to new supply chains, whether the regime “could be used to drive businesses to carry out greater due diligence”, especially where products are sold online.
Respondents to the consultation are asked to provide examples of circumstances where the current product liability regime:
- is unclear because of technological developments (e.g. lack of clarity about who is responsible for safety of an AI/smart product or when software is updated);
- does not enable consumers to seek fair redress; or
- does not provide businesses with clarity and confidence to develop new products.
Product liability and modern technology
The consultation addresses issues that the European Commission and other EU institutions have been grappling with for over five years. In particular, the key factors the Government cites as requiring a “fitness for purpose” assessment in the UK (e.g. definitions of product and defect and how to apply these given technological developments and modern supply chains) have been central to discussions in the EU, and are now the subject of concrete proposals for reform that are well progressed through the European legislative process: see further here and here.
However, the Government’s consultation is light on detail with respect to what changes might be coming, and its agenda is not clear, although the consultation’s focus on AI and technological developments may indicate that the Government intends to update the civil product liability regime to provide for strict liability for harm caused by defective software.
The European Commission has, of course, taken a highly pro-consumer approach to reforms to the PLD (expanding the definition of defect and the list of potential defendants, bringing software within scope, creating rebuttable presumptions as to defect and causation, extending the longstop period within which claims can be brought, and so on). Query whether the UK will, in time, follow suit.
This consultation presents an opportunity for businesses which sell or supply products to UK consumers and other stakeholders to present their views on the fitness for purpose of the current product liability regime. This may well provoke the polarised reactions from business groups, on the one hand, and consumer and patient groups on the other, that have been a central feature of the EU’s consideration of these issues.
Next steps
The Government has asked for responses by 24 October 2023, which it will take into account when considering both the aims of a potential reform of the regime and what such a reform might look like. The consultation document is available here.
