As you may have been injured by a purchased item, you could be entitled to claim compensation.  At Harris Fowler we specialise in getting you the compensation you deserve. This page will set out the elements of a claim we will need to prove and some hints and tips to help your claim go smoothly.

When a product causes you an injury there are a number of ways you can make a claim, for breach of contract under the Consumer Rights Act 2015, alternatively directly Under the Consumer Protection Act 1987 or finally by way of common law negligence.

Each claim is different, so how your case is brought will depend upon the facts of your case and on which your specialist personal injury lawyer will advise you further.

Breach of Contract – The Consumer Rights Act 2015

When bringing a claim for breach of contract under the Consumer Rights Act you are firstly only able to bring the claim against the other party to the contract or a party specifically named in the contract and even then only if you are the purchaser. As most items are purchased from a sole vendor, this will mean that claims of this type are limited to being only against that seller rather than a manufacturer or supplier.

However claims for breach of contract involve strict liability, so you do not need to show fault by the seller only that that there has been a breach of an express or implied term.  The Consumer Rights Act is important for these claims as it implies a number of terms into the contract of sale most notably that the product complies with its description, that it is satisfactory quality and is of reasonable fitness for a particular purpose.

If you are able to show breach of a contractual term then you are able to claim damages resulting from that breach.

Consumer Protection Act 1987

Claims under the Consumer Protection Act have the advantage in that a consumer (i.e. any user) rather than just the purchaser can bring the claim. In addition the claim is brought against the manufacturer or importer (when goods are brought into the EU) so still allows a claim to be brought when the seller has gone out of business.

In order to bring a claim under the Consumer protection Act you need to show 3 things

1. That the item in question is a product
2. That the product was defective
3. That the defect caused the injury/ and or losses claimed

The first element would seem fairly straightforward but as the Act defines a product as

“any goods or electricity and…includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise” , means that the scope is rather wide so that if an end product is defective because of a defective component then both the manufacturer of the end product and of the component may be liable.

The second element of a claim under the consumer protection act is that the product is defective which is defined in the act as “a product whose safety is not such as people generally would be entitled to expect”. When considering whether a product is defective the court will take into account all the relevant circumstances such as what warnings were provided and for what the product could reasonably be expected to be used for.                      

Hints and Tips for early on

Because of the Claimant’s need to prove breach of duty it is often beneficial when involved in an accident to obtain and keep the following

• The Defective product
• Any receipt or proof of purchase
• Any photographs or the injury caused

The final part of bringing a claim under the Consumer Protection Act is demonstrating that the defect caused the injury and losses being claimed, whether this is personal injury or other financial losses such as loss of earnings.

Personal injury

With personal injury this would seem straight forward, a new skateboard breaks and you fall off fracturing your wrist, it would seem obvious that the defective skateboard is the cause of your injury. But this becomes more complicated when before the accident you already had a bad wrist or had underlying problems which you may not have even known about. Because of these complexities the court relies upon the opinion of independent medical experts as to what caused the injuries and how long they are likely to last.

If you have been injured in an accident it is important to seek medical advice as soon as possible to ensure you are getting the appropriate treatment for your injuries.  In addition, as the medical expert will likely have sight of your records of attendance they will act as evidence as to the nature and extent of your symptoms and will help support your claim.

Because the court will rely upon the opinion of the medical expert it is important that the expert is aware of any previous health issues or accidents. In addition, as the expert will need to comment on whether any financial losses such as treatment received or time off work is due to the accident, it is important that you also discuss these with the medical expert.

Other losses

Once the medical expert has provided their opinion as to whether the loss (time off work/treatment etc.) is as a result of the accident we will then need to collect evidence to calculate what each head of loss may be and your highly qualified and experienced lawyer will advise what is needed in respect of each head of loss you are looking to claim.

Claim in Negligence 

It is also possible for a product user to bring a claim in negligence but in order to do so you have to show that the manufacturer/ importer or retailer owe you a duty of care and that in doing something or failing to do something they have fallen below the standard of care the reasonably skilled manufacturer/ importer or retailer would have provided in the same position. As claims of this nature are very technical and difficult to make we would suggest calling to speak to one of our specialist personal injury lawyers to discuss your claim.