3â Meaning of ‘product’

306

Product Liability under the Consumer Protection Act 1987

or into an immovable’. The exception for primary agricultural products was

removed from the Directive in 1999 as a direct response to the ‘mad cow dis-

ease’ (BSE) crisis in the farming industry.31 Therefore, agricultural products are

now included in the definition of a product and liability will ensue in respect of

damage caused by defective products. In practice, though, it may be very difficult

for a claimant to prove the causal link between his injury and the agricultural

product concerned. Someone contracting an illness from drinking unpasteur-

ised milk may find it relatively easy to establish the identity of the farmer who

supplied that product. However, by contrast, it would be extraordinarily difficult

for a claimant who has contracted variant Creutzfeldt-Jakob Disease (vCJD)32 to

prove the link between himself and an individual BSE-infected animal.33

The Directive definition also expressly states that ‘products’ are ‘movables’,

a definition which clearly excludes immovables. Thus, land and buildings

are not included, a situation that remains unaltered following the European

Commission’s Report, which recommended that real property should not be

included within the meaning of product.34 However, it is clear that movables

that have been incorporated into an immovable item will be classed as products.

Thus, liability would arise in respect of windows, central heating systems and

electrical circuits if they were to prove defective and cause an injury. Electricity

itself is expressly included as a product.35

There is no express statement that either includes or excludes blood and other

human products. However, in A v. National Blood Authority,36 a case concern-

ing a claim by 114 people who contracted Hepatitis C as a result of being given

infected blood during blood transfusions, it was expressly accepted that blood

is a product for the purposes of product liability.37 It is then a small step to argue

that other human organs and tissues must likewise be classed as products for

this purpose, with liability ensuing if the ‘products’ have not been stored or pre-

pared properly for a medical procedure.38 The French government introduced

31

By Directive 1999/34/EC [1999] OJ L141/20.

32

vCJD is sometimes referred to as a human form of BSE.

33

In a statement, the Spongiform Encephalopathy Advisory Committee (SEAC) reported that

they ‘have considered 10 cases of CJD which have occurred in people aged under 42 which

have recently been identified by the CJD Surveillance Unit, Edinburgh. The Committee have

concluded that the Unit has identified a previously unrecognised and consistent disease pattern.

A review of patients’ medical histories, genetic analysis to date and consideration of other possible

causes, such as increased ascertainment, have failed to explain these cases adequately. Although

there is no direct evidence of a link, on current data and in the absence of any credible alternative

the most likely explanation at present is that these cases are linked to exposure to BSE before the

introduction of the SBO ban in 1989’.

34

European Commission, Report on Directive 85/374, above n. 29, para. 3.2.8.

35

Product Liability Directive, Art. 2; Consumer Protection Act 1987, s.1(2).

36

[2001] 3 All ER 289.

37

A v. National Blood Authority is also a key decision in analysing the meaning and assessment of

when a product is defective for the purposes of the 1987 Act.

38

See Henning Veedfald v. Århus Amtskommune C-203/99 [2001] ECR I-3569, as discussed in

Howells and Weatherill, above n. 19, ch. 4, note 82.