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You Put It There In The First Place!

You Put It There In The First Place!

Have you ever stood on an upturned plug?  I have.  At least three times, from memory.  It is a combination of the most irritating and uncomfortable injury I have ever sustained.  Each time, I found myself grabbing my foot, hopping around like a kangaroo and screaming “WHO PUT THAT THERE?!”

This may seem like a completely unreasonable response to (a) not watching my step and (b) neglecting to wear anything on my feet, but I would not be the first to lay the blame for my injuries on the person who brought the offending product into my personal space.

Manufacturers are not the only parties who may find themselves on the hook for injuries caused by defective products.  A consumer also has the option of bringing proceedings against the importer - the party who “put it there in the first place” just as they do against the original manufacturer.  Where a party has brought a product into the EU from somewhere outside of the member states, they can be found liable for injury caused by a defect in that product.

In addition, consumers may also seek compensation from “own branders”, i.e. those who use a trade mark or other distinguishing mark on the product, even if they are not involved in the manufacturing process.  In addition, a supplier can also be liable where they fail to identify the manufacturer or importer within a reasonable time of being asked to do so. 

There are a number of defences available to a company facing action for injury due to an alleged defect in their product.  Amongst others, it could be argued that the injury was caused by some other factor (a consumer’s medical history might be relevant), that the consumer knew that the product carried a risk but used it anyway (e.g. tobacco or alcohol), that the defect did not exist when the product was originally supplied (e.g. it has resulted from wear and tear) or, perhaps of most relevance to my predicament, that the consumer was at least partially, if not wholly, to blame for the failure of the product (like leaving it lying, prongs-up on the floor while neglecting to put her slippers on…)

Any company working in the production, supply, import or sale of products therefore needs to be aware of the potential for compensation claims from consumers, even where they are not closely involved in the manufacturing process.  This is in addition to any enforcement action that might be taken by the relevant regulator or local authority to deal with safety concerns about that product. 

Importers in particular can find themselves at risk where they have not put in place quality control measure for products coming from outside of the EU.  Companies importing products from other western countries such as the US or Australia can be caught out by the presumption that products from such countries are of high quality, or that the finger can easily be pointed at the manufacturer if an undetected defect does cause injury.

For my part, awareness of the virtues of a cable tidy and some hard-soled slippers are all that is required for the moment.

Pauline McFadden
Senior Solicitor

LChalmers