Product liability - Consumer Protection Act 1987

Learning Outcomes

This article provides an overview of the statutory regime for product liability under the Consumer Protection Act 1987 (CPA 1987). It outlines the concept of strict liability for defective products, identifies who may be liable, the types of damage covered, and the available defences. For the SQE1 assessments, you will need to understand the key provisions of the CPA 1987 and distinguish this regime from common law negligence claims. Your understanding will enable you to identify and apply the relevant legal principles to SQE1-style single best answer MCQs concerning defective products.

SQE1 Syllabus

For SQE1, you are required to understand the principles of liability for defective products under the Consumer Protection Act 1987 (CPA 1987), including the concept of strict liability, who can claim, who may be liable, the types of damage covered, and the available defences.

As you work through this article, remember to pay particular attention in your revision to:

  • the difference between strict liability under the CPA 1987 and fault-based liability in negligence
  • the definition of a ‘product’ and a ‘defect’ under the Act
  • identifying potential claimants and defendants under the CPA 1987
  • the types of damage recoverable under the CPA 1987, including the rules for property damage
  • the statutory defences available, particularly the ‘development risks’ defence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under the CPA 1987, liability for defective products is described as 'strict'. What does this mean?
    1. The claimant must prove the defendant was negligent.
    2. The claimant must prove the defendant was at fault, but not necessarily negligent.
    3. The claimant does not need to prove fault on the part of the defendant.
    4. Liability is absolute and cannot be defended.
  2. Which of the following types of damage is NOT recoverable under the CPA 1987?
    1. Death caused by a defective product.
    2. Personal injury caused by a defective product.
    3. Damage to the defective product itself.
    4. Damage to private property intended for private use, valued at £300.
  3. Who is primarily liable under the CPA 1987 for a defective product?
    1. The retailer who sold the product.
    2. The wholesaler who distributed the product.
    3. The producer (manufacturer) of the product.
    4. The advertising agency who marketed the product.

Introduction

Claims concerning harm caused by products can arise under common law negligence (as discussed in relation to the narrow rule in Donoghue v Stevenson). However, proving fault on the part of a manufacturer can be difficult for a claimant. The Consumer Protection Act 1987 (CPA 1987) introduced a statutory regime of strict liability for damage caused by defective products. This regime implements an EU Directive (85/374/EEC) and exists alongside, rather than replacing, potential common law claims. For SQE1, you must understand the key features of this statutory framework.

The Consumer Protection Act 1987 (CPA 1987)

The CPA 1987 imposes liability on certain persons for damage caused wholly or partly by a defect in a product (s 2(1)). The core principle is strict liability.

Key Term: strict liability Liability that does not depend on actual negligence or intent to harm. Under the CPA 1987, the claimant generally does not need to prove that the defendant was at fault in allowing the defect to occur.

Scope of the Act

The CPA 1987 applies to products supplied after 1 March 1988. It covers a wide range of goods.

Key Term: product Defined broadly in s 1(2) CPA 1987 to include any goods or electricity and includes products comprised in other products (eg, components or raw materials). 'Goods' include substances, growing crops, and things attached to land (s 45(1)).

What is a 'Defect'?

Liability under the CPA 1987 arises only if the damage is caused by a 'defect' in the product.

Key Term: defect A product has a defect if its safety is 'not such as persons generally are entitled to expect' (s 3(1) CPA 1987). This is often called the 'consumer expectation test'.

Section 3(2) outlines circumstances to be taken into account when determining what persons are entitled to expect, including:

  • The manner in which the product was marketed, its 'get-up', instructions, and warnings.
  • What might reasonably be expected to be done with the product.
  • The time when the product was supplied by its producer.

The test focuses on the safety of the product, not its quality or fitness for purpose in a contractual sense. A product might be dangerous but not legally 'defective' if the public generally expects that risk (eg, sharp knives). Conversely, a product can be defective even if the producer took all reasonable care.

Worked Example 1.1

A new brand of kettle is sold with instructions stating it should not be filled above a marked line. Anya overfills the kettle slightly. When it boils, steam escapes forcefully from the lid, scalding her hand. Expert evidence suggests the lid design provides inadequate sealing under pressure, even with minor overfilling which could reasonably be expected. Is the kettle likely 'defective' under the CPA 1987?

Answer: Yes, potentially. Persons generally are entitled to expect a kettle to be safe during normal use, including minor, foreseeable deviations like slight overfilling. If the safety (lid sealing) is not what persons are entitled to expect considering reasonable use (s 3(2)(b)), it may be defective under s 3(1). The instructions are relevant but may not be conclusive if the core design is unsafe for reasonably expected use.

Causation

The claimant must prove that the defect in the product caused the damage suffered (s 2(1)). The standard rules of causation apply, including the 'but for' test. Remoteness of damage is not explicitly addressed in the Act, but it is likely that the damage must be of a foreseeable type.

Who Can Sue?

Anyone who suffers damage as a result of the defect can potentially bring a claim. There is no requirement for the claimant to be the purchaser or user of the product.

Who Can Be Sued?

Section 2(2) identifies several categories of potential defendants who are jointly and severally liable:

  • (a) The producer: This primarily means the manufacturer of the finished product, a component part, or raw materials.
  • (b) Own-branders: Any person who, by putting their name or trademark on the product, holds themselves out as the producer. Supermarket own-brand goods are a common example.
  • (c) Importers: Any person who imported the product into the UK (from outside the UK) in the course of a business to supply it to another.

Suppliers (eg, retailers, distributors) are generally not liable under s 2(2). However, under s 2(3), a supplier can be liable if:

  • They are requested by the injured person (within a reasonable time) to identify the producer, own-brander, or importer (or their own supplier).
  • It is not reasonably practicable for the injured person to identify these parties themselves.
  • The supplier fails to identify the relevant person(s) within a reasonable period after the request.

Key Term: producer Includes the manufacturer of a finished product, the producer of any raw material, and the manufacturer of a component part making part of the product (s 1(2) CPA 1987).

Types of Damage Recoverable

Section 5 defines the damage for which liability arises under the Act:

  • Death or personal injury: This is fully recoverable (s 5(1)). Personal injury includes disease and impairment of physical or mental condition (s 45(1)).
  • Damage to private property: Loss or damage to property is recoverable only if (s 5(3) & (4)):
    • The property is of a description ordinarily intended for private use, occupation, or consumption; and
    • It was intended by the person suffering the loss mainly for their own private use, occupation, or consumption.
    • The total value of the property loss or damage exceeds £275. If it exceeds £275, the full amount is recoverable, not just the excess.

Importantly, the following are not recoverable under the CPA 1987:

  • Damage to the defective product itself (s 5(2)).
  • Damage to business property (s 5(3)).
  • Property damage below the £275 threshold (s 5(4)).

Worked Example 1.2

A hairdryer bought for personal use overheats due to a defect. It causes burns to the user (personal injury), destroys itself (value £50), and sets fire to towels (value £40) and a laptop used solely for the user's business (value £800). Which losses are potentially recoverable under the CPA 1987?

Answer:

  • Personal injury (burns): Recoverable (s 5(1)).
  • Cost of the hairdryer: Not recoverable (damage to the defective product itself, s 5(2)).
  • Damage to towels: Not recoverable. Although private property, the value (£40) is below the £275 threshold (s 5(4)).
  • Damage to laptop: Not recoverable. It is business property (s 5(3)).

Exam Warning

Be careful to distinguish the types of damage recoverable under the CPA 1987 from those recoverable in negligence. The CPA 1987 does not cover damage to the product itself or damage to business property. Remember the £275 minimum for private property damage claims.

Defences

While liability is strict, it is not absolute. Section 4 CPA 1987 provides several defences:

  • (a) Compliance with legal requirements: The defect was attributable to compliance with statutory or retained EU obligations.
  • (b) Defendant did not supply the product: Eg, the product was stolen from the producer before supply.
  • (c) Supply not in course of business: The supply was not in the course of a business and the defendant was not the producer, own-brander, or importer acting with a view to profit.
  • (d) Defect arose after supply: The defect did not exist in the product at the time it was supplied by the defendant (eg, caused by misuse or wear and tear).
  • (e) Development risks / 'state of the art' defence: The state of scientific and technical knowledge at the time the product was supplied was not such that a producer of products of the same description might be expected to have discovered the defect. This is narrowly interpreted (A v National Blood Authority [2001]). It relates to undiscoverable risks, not known but unavoidable risks.
  • (f) Component manufacturer defence: The defect was wholly attributable to the design of the finished product or compliance with instructions given by the manufacturer of the finished product.

Revision Tip

The 'development risks' defence (s 4(1)(e)) is a key area. Remember it concerns whether the defect could have been discovered given the knowledge at the time, not whether it was unavoidable.

Contributory negligence also applies (Law Reform (Contributory Negligence) Act 1945). Liability under the CPA 1987 cannot be excluded or limited by any contract term or notice (s 7).

Limitation Periods

Claims under the CPA 1987 must be brought within three years from the later of:

  • The date the injury or damage occurred; or
  • The date the claimant knew, or reasonably ought to have known, the material facts (including the identity of the defendant and that the damage was significant and attributable to the defect).

There is also a long-stop limitation period of 10 years from the date the defendant supplied the product (Limitation Act 1980, s 11A). After 10 years, the right to claim is extinguished, regardless of when the damage occurred or was discovered.

Key Point Checklist

This article has covered the following key knowledge points:

  • The CPA 1987 imposes strict liability for damage caused by defective products.
  • Claimants do not need to prove fault but must prove damage was caused by a defect.
  • A product is defective if its safety is not such as persons generally are entitled to expect.
  • Liability primarily falls on producers, own-branders, and importers. Suppliers can be liable if they fail to identify these parties.
  • Recoverable damage includes death, personal injury, and damage to private property exceeding £275.
  • Damage to the defective product itself or business property is not recoverable under the CPA 1987.
  • Statutory defences exist, including the narrowly interpreted 'development risks' defence.
  • Liability under the CPA 1987 cannot be excluded.
  • Claims are subject to a 3-year limitation period from injury/knowledge and a 10-year long-stop period from supply.

Key Terms and Concepts

  • strict liability
  • product
  • defect
  • producer
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
Assessment Day
One-time Fee
$20-39
Barbri SQE
One-time Fee
$3,800-6,900
BPP SQE
One-time Fee
$5,400-8,200
College of Legal P...
One-time Fee
$2,300-9,100
Job Test Prep
One-time Fee
$90-350
Law Training Centr...
One-time Fee
$500-6,200
QLTS SQE
One-time Fee
$2,500-3,800
University of Law...
One-time Fee
$6,200-22,400

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal