Accident & personal injury claims

This section contains some of the most frequently asked question relating to product liability. These include:

What laws governs product liability law?

The Consumer Protection Act 1987 is the relevant UK act that introduced strict liability for damage arising from defective products in the UK.

What is a defective product?

The Consumer Protection Act covers all consumer goods, including pharmaceutical products and medical devices such as artificial hip components and pacemakers. It also covers goods used in the workplace and products which comprise another product, such as engine parts. A product will be considered to be defective if, when it was supplied, it did not meet the legitimate expectations of persons generally using it, taking into consideration the manner in which and the purposes for which the product was marketed, and any instructions or warnings which accompanied the product.

What sort of injury/damage can I claim for?

You can sue under the Consumer Protection Act for compensation, death, personal injury and damage to private property, providing the amount of personal injury or damage to property is valued at £275 or more.

You will be entitled to two kinds of damages for your injury. The first is called general damages and is awarded for what the courts call "pain, suffering and loss of amenity". The second is called special damages and covers actual financial losses and expenses arising from your injury. This can include lost earnings, costs of caring for an injured person, costs of physiotherapy and many other things.

More serious injuries, resulting in life-long incapacity affecting someone's ability to work and to care for themselves, will attract the largest awards. These are the ones which are usually reported by the press and will consist mainly of compensation for future losses and expenses. The two biggest items are often costs of care and loss of earnings.

If you recover well from your injury, however serious it was at first, then your potential claim maybe limited to a claim for general damages, plus perhaps some loss of earnings and incidental expenses.

The figures awarded for general damages are fixed by judges on a tariff basis, by comparison with similar injuries and are generally low, even for very serious injuries.

Who is liable for the injury/damage caused by the defective product?

The ‘producer’ is the person primarily liable for any damage caused by a defective product. The producer will include either the person who manufactured it or, if the product has not been manufactured, the person who abstracted it or processed the product, such as in agricultural produce. In addition to the producer, any person who puts his name on a product or holds himself out as being the producer of the product, will be liable. In the event of the product being manufactured outside the EU, the person who imported the product into the EU will be liable. The supplier will also be liable if the supplier fails to respond to a request to identify the producer of a defective product which they then, in turn, supplied.

What does 'strict liability' mean?

DA defendant will be liable for damages where it can be established that the product was defective and that the defect caused the reported injury. It is not necessary to establish fault, avoidability or negligence, but it is necessary to prove a causal link between the defect and harm.

The defendant will, however, have available to them the “development risk/ state of the art defence”, if they can demonstrate that at the time the product was supplied, the defect was not discoverable by using all accessible knowledge. It is not relevant what the reasonable manufacturer would do or have regard to the cost of acquiring such knowledge.

Do any time limits apply to bringing a product liability claim?

A claim must be issued within three years of the date of injury, failing which any claim will be “statute barred”, or disallowed. If the injury happened more than three years ago, it may still be possible to bring a claim if the claimant only found out that the injury was caused by a defective product within the last three years.

The Consumer Protection Act (CPA) provides a longstop period which requires that any claims brought under this act are brought within 10 years from the date that the specific product was put into market circulation, after which time all rights under the CPA are extinguished. If the 10 years expires before the expiry of the three year statutory limitation period, then the earlier date will apply.

Is Legal Aid (public funding) available for product liability cases?

The Legal Services Commission (LSC) is responsible for Legal Aid, or public funding as it is now known. We have a contract with the Legal Services Commission for multi-party action cases which means we are approved by them to run product liability cases.

Public funding for a product liability case is however not available unless one can demonstrate that the claim will have a wider public interest. This can be demonstrated if there are a number of people who have been injured by the defective product in question. However, Legal Aid for public interest cases is very limited and often not available even when a wider public interest can be established and claimants can satisfy that their income is low enough to qualify for legal aid.

If I can't get Legal Aid (Public Funding), then I'm worried I can't afford legal fees. How much will it cost?

The answer to this question varies from case to case. It depends on how much work is needed to investigate and then run your case.
Costs include:

• our time, which is charged per hour we spend working on your case.
• the fees we pay to medical experts for their advice.
• the fees we pay to barristers for their advice or work in court.

You also have to pay VAT on our costs and the barrister’s costs. Most experts don’t have to charge VAT.

At the beginning of your case we will advise you about likely costs. We may be able to offer you a conditional fee agreement (see below) for our fees and we may be able top help you find other sources of funding for experts’ fees. We will do our best to ensure you are able to investigate and bring your claim. Please see our section on Funding Your Case.

Do you take cases on a "no win, no fee" basis? Does that mean I won't have to pay anything at all?

Yes we do. A panel of the firm's partners will consider your case to assess your chances of success and carry out a cost/benefit analysis just as the LSC assesses new applications. We may then offer you what is called a Conditional Fee Agreement (CFA).

This means that if you do not win your case, you do not have to pay this firm’s fees. You will only have to pay our fees if you win your case, plus a “success fee” on top, to compensate us for the risk that we might not get paid at all. In most circumstances, it is usual for the Defendant to meets your legal costs.

However you will probably still have to pay things like medical records and experts’ fees as you go along – these are the expenses that we have to pay out to others. Again, if your case is successful, it is usual for the Defendant to pay for these extra costs. We will do our best to help you find funding for this if you cannot afford them.

Will I get back the money I have to pay out?

Every product liability case has to be investigated and we need advice from medical experts before we can tell you if your claim is likely to succeed. If a claim cannot be brought, the costs of the investigation cannot be recovered.

However if you have a strong claim, the defendant will probably have to pay your costs at the end of the case as well as your damages. This means that while you may have to pay some costs now you should get most of them back if you win.

Once you start court proceedings (actually take the formal step of issuing and serving a Claim Form) you also risk having to pay the defendant’s costs if you lose. You can buy insurance to cover this and some policies will also repay you the money you had to pay for your own experts’ fees if you lose. You can’t generally get insurance before you have investigated the case and have advice that it is likely to succeed.

What are the consequences of losing an action?

Although a claim may be brought on a no win, no fee basis where the claimant will not be liable for their own solicitor’s costs in the event that the case is lost, they will however remain liable to pay the defendant’s costs. Where there is no pre-existing before the event legal expenses policy, we will arrange for after the event insurance to cover the claimant’s risk of having to pay the defendant’s costs in the event the case is lost.

Can a claim be brought as a class or group action?

In the UK courts it is not possible for an individual to bring a “class action” on behalf of a large group of affected people as in the United States, although it is possible for consumer organizations to bring representative claims.

Where a number of people have been injured by the same defective product, they can still join together to bring a “group action”. Each claimant will have to be individually named on the claim form, however, in most cases a small group of lead claimants will be chosen to take the case forward through to trial. This enables claims to be brought more speedily and cost effectively, with the costs and risks being shared between the whole group.

Leigh Day brings the majority of its product liability cases by way of a group action. However, individual claims are also considered.

Are claims brought in other jurisdictions?

Leigh Day often work with lawyers in the US and other jurisdictions to bring proceedings on behalf of UK claimants in situations where the defendant is based outside of the EU.

How do I know your firm is any good?

Leigh Day & Co have unrivalled experience in dealing with complex liability cases. We have been listed as one of the top ranked product liability firm in Legal 500 and Chambers directories.

The Chambers directory described the described the work of the product liability team as follows;

“This heavyweight claimant firm has a well-deserved reputation in the field. Senior partner Martyn Day has been instrumental in cementing this reputation and is extremely highly regarded, especially for his ability to handle complicated scientific issues. He recently led the team in concluding major hip-replacement litigation, and he continues to play a key role in the high-profile VIOXX litigation. Day and two other partners operate from London and receive ample praise from clients: “We were so lucky to find this firm - it certainly knows what it’s doing when it comes to product liability claims.”