The Law Commission has published the terms of reference for its review of the product liability regime.

When the review was first launched (which we discussed here), the Law Commission indicated that it would be broad in scope and assess whether significant reform was necessary to bring the product liability regime up-to-date.

The terms of reference go further, making clear the Law Commission’s view that the Consumer Protection Act 1987 (CPA) is “no longer fit for purpose”, particularly given recent technological advances such as the development of AI. The Law Commission has also spoken previously about the difficulty of bringing a successful claim under the existing regime and the need to “correct the balance between protecting people from harm and supporting industry”.

Against that backdrop, the Commission proposes to examine a wide range of issues, including whether the definitions of ‘product’, ‘defect’, and ‘damage’ under the CPA need to be re-considered to accommodate emerging and digital technologies. Similarly, it will explore whether the scope of ‘economic operators’ who may be held liable under the CPA ought to be reformed, and whether the existing ‘State of Art’ defence needs re-consideration.

The Commission will also consider whether the burden for claimants to bring a successful claim is too onerous under the existing regime. This not only means potentially extending in certain circumstances the long-stop period of 10 years during which a claim must be brought, but also whether the nature of emerging technologies like AI makes it increasingly difficult for a claimant to establish that a product or software is in fact defective.

A formal consultation on the Commission’s proposals is expected later this year.

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