The Nigerian product liability law, as it currently stands, is still anchored on the fault-based principle as formulated in the case of Donoghue v Stevenson.
For a product liability claim, a claimant must be able to prove the following elements of negligence; duty of care, breach of duty, and causation resulting in damages before he can succeed in an action premised on product defect.
DEFINITION OF LEGAL CONCEPTS
- CONSUMER – A consumer has been defined as: ‘one who buys goods or services for personal, family, or household use, with no desire of reselling same.’ This definition, though appropriate under certain circumstances, for instance within the ambit of contract law, however, does not in any way assist in defining a consumer under tort mechanism, it limits rather than widen its meaning.
- MANUFACTURER – A manufacturer is defined as: ‘A person or entity engaged in producing or assembling new products. This definition does not fully cover the various classes of people who have been regarded as manufacturers. A manufacturer/producer within the context of product liability claim has been extended to include retailers and even in some jurisdictions repairers of the product.
- NEGLIGENCE – is defined as ‘the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to prevent others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or wilfully disregardful of others’ right. Negligence is a matter of risk – that is to say, of the recognizable danger of injury. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the result, which may follow his act. In the case of Abubakar v Joseph, the Supreme Court defined negligence as ‘… the omission or failure to do something which a reasonable man under similar circumstances would do, or the doing something which a reasonable man would not do.’ It can safely be inferred that acts, which fall short of the standard of a reasonable person, will be adjudged to be negligent ones.
- PRODUCT LIABILITY – Product liability can be described as that area of the law that seeks to hold accountable manufacturers, distributors, suppliers, retailers, and others who make products available to the public for the injuries those products inflict on consumers or users. It is the body of principles of the law as found in the statute books and case law that govern the liability of manufacturers/sellers for the injuries/losses caused by defects in their products to consumers and the public at large. While products are generally thought of as tangible personal property,
- CAUSE OF ACTION AND JURISDICTION
Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), confers jurisdiction on the High Court to hear and determine any civil proceedings, which the existence or extent of a legal right, power, duty, and liability is in the issue. As such, the court with jurisdiction in an action for product liability is the High Court.
- FEDERAL COMPETITION AND CONSUMER PROTECTION COMMISSION(FCCPC)
The FCCPC, under the Federal Competition and Consumer Protection Act (FCCPA), is the main authority charged with the primary responsibility of protecting and safeguarding the rights of consumers in Nigeria. It is empowered by law to, amongst other things, enforce the FCCPA and any other enactment concerning competition and protection of consumers. The FCCPC is also authorized to carry out investigations or inquiries; resolve disputes or complaints, issue directives and apply sanctions where necessary; regulate and seek ways and means of removing or eliminating from the market, hazardous goods, and services11.
- DUTY OF CARE
For a consumer to succeed in an action for product liability founded on negligence, the consumer must by pleadings and evidence establish the three essential ingredients of negligence, to wit:
- That the manufacturer owes him or her a duty of care;
- That the duty of care was breached by the manufacturer; and
- That he or she has suffered damage as a result of the breach of the duty
The first element is easily satisfied when the manufacturer-consumer relationship is established. The second element requires the consumer to show the action or inaction of the manufacturer that has led to the breach of the duty. In other words, what step was taken by the manufacturer that it ought not to have taken, or what the manufacturer failed to do, that was required of it either by statute or the standard expected of a reasonable man. The third element requires the consumer to establish a direct link between the damage suffered and the breach of the duty by the manufacturer. Where the manufacturer can show that there is no connection between the damage suffered by a consumer and its products, then the consumer will not succeed on this claim.
The consumer is required to not only prove the three elements aforementioned, but his or her case must stand on its strength and not the weakness of the manufacturer’s defence. Where the consumer, prima facie establishes a case
of negligence, the evidential burden shifts to the manufacturer to exonerate itself.
Where the consumer successfully establishes negligence, the consumer will be entitled to damages, and the manufacturer’s liability cannot be restricted or excluded by any reference to any contract term.
- HOW CAN A LIABILITY CLAIM BE BROUGHT?
Aggrieved consumers seeking to enforce any of the rights under the FCCPA may file a complaint directly with the FCCPC or directly file an action in court. The aggrieved consumers may have recourse to Civil Society Groups who can also grant redress to victims of defective/poor goods or services.
Where a consumer does not hinge his or her claim on the FCCPA, recourse will only be had to the Court.
LIMITATION OF PERIOD
The limitation periods applicable in a product liability action would depend on whether the cause of action is one arising out of contract or tort. Each state of Nigeria has enacted a limitation law. The Limitation Act (Decree No. 88 of the Laws of the Federation of Nigeria 1966) is applicable in the FCT. There is a slight difference in the periods of limitation in certain states. In Lagos state, claims founded on contract or tort are subject to a limitation period of six years from the date the cause of action accrued. Claims for damages arising from negligence or breach of duty of care involving personal injury must be instituted within three years of the date the cause of action accrued.
The risk of product liability is fundamental in every business involved in the manufacturing or distribution of goods. The consequences that come with it can be very hurtful, ranging from minor distractions or temporary disruptions of business
activities to a total shut down of a business, either as a result of a court decision.
However, it is thus imperative for manufacturers to take all necessary steps to minimize the exposures as well as to properly manage a product liability crisis.
Alternative Dispute Resolution mechanisms should be explored as much as possible because of the less public nature of the proceedings.