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. Building on that core, you should also be able to explain how “defect” is assessed using the consumer expectation test, determine when suppliers become liable if they cannot identify an upstream producer, apply the £275 threshold for private property damage, differentiate recoverable personal injury from unrecoverable pure economic loss, and analyse the scope and limits of the statutory defences (particularly the “development risks” defence). You should be comfortable with the causation requirement under the Act, the joint and several liability of defendants in the supply chain, the non-excludability of CPA liability, and the special limitation regime including the 10-year long-stop.

SQE1 Syllabus

For SQE1, you are required to understand the statutory product liability regime under the Consumer Protection Act 1987 (CPA 1987), with a focus on the following syllabus points:

• 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
• joint and several liability of producers, own-branders and importers, and how suppliers can become liable under s 2(3)
• causation and the role of warnings, instructions and foreseeable uses in assessing defect and liability
• the prohibition on excluding or limiting CPA liability (s 7) and interaction with negligence, UCTA 1977 and CRA 2015
• limitation: 3-year period from injury/knowledge and the 10-year long-stop from supply (Limitation Act 1980, s 11A)

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.

In negligence, the claimant must prove duty, breach and causation against a manufacturer or other defendant. The common law duty is limited to foreseeable injury or property damage, excludes pure economic loss for damage to the defective product itself, and involves evidential difficulties in proving a manufacturing or design fault. The CPA avoids most of those proof issues: the claimant only needs to establish that a product had a “defect” and that the defect caused recoverable damage. Liability is strict, but not absolute—statutory defences and contributory negligence may apply, and the statutory damages regime excludes certain heads of loss (e.g. the cost of the defective product itself and damage to business property).

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.

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. The Act applies across a broad range of products supplied after 1 March 1988 and is intended to capture manufacturing defects, design defects and failures in instructions or warnings that result in products not meeting safety expectations.

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)).

In practice:

• Components and raw materials are covered: a defective ingredient in food, a faulty bolt within a bicycle, or contaminated blood used in transfusions can all constitute defective products or components.
• Electricity is a “product” for the purposes of the Act.
• Goods include ships, aircraft and vehicles, and things attached to land by human activity (fixtures). However, buildings themselves are generally not treated as “products” under the Act; nonetheless, parts or fixtures incorporated in buildings (e.g. a defective window unit, cladding panels, or lift components) can be “products,” and if their defect causes damage, liability may arise.

The wide definition means a claimant does not need privity of contract; any person suffering damage caused by a defect can use the CPA route against the appropriate defendant in the supply chain.

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.

This standard focuses on safety, not contractual quality or fitness for purpose. A sharp kitchen knife is dangerous, but persons are generally entitled to expect sharpness for it to function; that does not make it “defective.” Conversely, if design, manufacture, or instructions render the knife unsafe in ways people are not entitled to expect, it may be “defective.”

The case law illustrates the consumer expectation test:

• In A v National Blood Authority [2001], blood contaminated with Hepatitis C was held defective because recipients are entitled to expect blood products to be free from infection. The “development risks” defence failed because the risk of contamination was known; the state of knowledge did not make the existence of the defect undiscoverable in the relevant sense.
• In Abouzaid v Mothercare [2001], a metal buckle on an elastic strap caused eye injury to a child helping fasten a pushchair sleeping bag. Even without negligence in design, the product failed the consumer expectation test; safer design or adequate warnings were expected.
• In Pollard v Tesco Stores [2006], the lid of a child-resistant container was difficult to open, albeit not compliant with a British Standard. The court held consumers were entitled to expect a lid more difficult to open than a normal cap; that expectation was met, so no defect was established.
• In Bogle v McDonald’s Restaurants [2002], customers were scalded by hot coffee. The court held persons expect coffee to be served hot and the lids to be removable; these features did not make the product defective in safety terms.

Warnings and instructions matter. An adequate warning can shape what safety persons are entitled to expect. However, warnings do not cure intrinsically unsafe design where foreseeable uses remain dangerously risky. The “time supplied” factor ensures that later, safer iterations do not automatically render earlier products defective merely because technology improved subsequently.

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. Where significant time elapses or there is opportunity for post-supply interference, causation can be difficult to prove. For example, in Evans v Triplex Safety Glass [1936] (a negligence claim), a car windscreen shattered about a year after fitting; the court considered that intervening factors might have caused the breakage. Under the CPA, the claimant still must show that the defect itself caused the damage—not merely that damage occurred while using the product.

Remoteness is not expressly addressed in the Act, but standard principles apply: the damage should be of a reasonably foreseeable type. Novel or unusual uses may affect both defect analysis (what is reasonably expected to be done with the product) and remoteness (whether the type of damage was foreseeable).

Contributory negligence remains relevant to quantum. If a claimant disregards clear instructions or warnings and that conduct contributes to the injury (e.g. using a product clearly marked “not for immersion” in water), damages can be reduced under the Law Reform (Contributory Negligence) Act 1945.

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. Bystanders, family members, and subsequent acquirers can be claimants, provided they suffered recoverable damage caused by the defect.

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).

Joint and several liability means a claimant can sue any one or more of these defendants for the full amount. The sued defendant can then seek contribution from others (Civil Liability (Contribution) Act 1978). If a retailer provides the requested identification in time, the claimant can follow the chain to identify an appropriate producer, own-brander or importer.

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)).

Types of Damage Recoverable

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

• Death or personal injury: Fully recoverable (s 5(1)). Personal injury includes disease and impairment of physical or mental condition (s 45(1)). Recognised psychiatric injury is included; mere distress without impairment is not.
• Damage to private property: 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; and
  • The total value of the property loss or damage exceeds £275.

Once the £275 threshold is met on the facts of the claim, the full amount of private property damage is recoverable, not merely the excess over £275.

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

• Damage to the defective product itself (s 5(2))—this is treated as pure economic loss.
• Damage to business property (s 5(3)).
• Property damage below the £275 threshold (s 5(4)).

If a claimant has both CPA and negligence routes available, strategic considerations arise. For example, damage to business property may be recoverable in negligence (if foreseeable) but not under the CPA. Conversely, strict liability may be preferable where proving fault would be difficult.

Worked Example 1.3

A new washing machine has a wiring defect that causes a fire. It destroys a £200 rug and a £150 private-use vacuum cleaner, and scorches the wall paint (£100 redecorating). The claimant also suffered minor smoke inhalation. Can the claimant recover under the CPA?

Answer:
Yes, for personal injury (smoke inhalation). For private property damage, the aggregate total (£200 + £150 + £100 = £450) exceeds £275, so the full private property damage is recoverable. The cost of the defective washing machine itself is not recoverable under the CPA. If the vacuum were used mainly for a business (e.g. a cleaning service), that item would be excluded.

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. Also consider whether multiple items of private property can be aggregated to exceed the threshold; the “total value” wording supports aggregation where the damage arises from the same defective product incident.

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. Where a design or composition is mandated, producers may be excused if that legal requirement hardwires the feature causing the defect. The producer must show the defect was “attributable to” that compliance, not merely consistent with it.
• (b) Defendant did not supply the product: Eg, the product was stolen from the producer before supply, or otherwise never put into circulation by the defendant. The defence focuses on whether that defendant supplied the product to another; if not, they are not liable for that product under s 2.
• (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. Private gifts or casual, non-business transfers may qualify, but beware where the supplier is otherwise a producer/importer of similar goods.
• (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, improper storage, wear and tear, or a later event). Careful evidence on post-supply events and product condition often underpins this defence. In the context of components, evidence that a fracture or failure could not have existed at supply can be probative (e.g. thorough manufacturing and inspection regimes).
• (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. It relates to undiscoverable risks—if a defect was known (even if difficult or expensive to avoid), the defence will fail. A v National Blood Authority [2001] is often cited: blood contaminated with Hepatitis C was held defective, and the defence failed because the risk was known; persons are entitled to expect uncontaminated blood products.
• (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. A component producer who follows the finished product manufacturer’s instructions and whose component is not itself defective may rely on this defence.

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). Attempts to exclude negligence liability to consumers are generally invalid under the Consumer Rights Act 2015 (s 65), and to non-consumers are tightly controlled by the Unfair Contract Terms Act 1977. Under the CPA, however, s 7 is categorical: producers cannot contract out of statutory product liability.

Worked Example 1.4

A pharmaceutical company releases a drug. At the time of supply, a rare neurological adverse effect occurs in 1 in 500,000 patients and is unknown to science; no test or method could identify the defect risk. Years later, science discovers the mechanism and a screening protocol. A patient harmed before the discovery sues under the CPA. Can the producer rely on the development risks defence?

Answer:
Potentially, yes. If, at the time of supply, scientific and technical knowledge was not such that a producer of products of the same description might be expected to discover the defect, s 4(1)(e) can apply. The defence fails if the risk was known (as in A v National Blood Authority) or discoverable by the then state of knowledge. The burden is on the producer to establish the defence.

Worked Example 1.5

A component maker manufactures steel pins to the finished product manufacturer’s specifications. The pins are incorporated into a DIY ladder. The ladder collapses due entirely to the ladder’s flawed design (incorrect load rating); the pins themselves meet specification and are not defective. The injured claimant sues the component maker under the CPA.

Answer:
The component maker may rely on s 4(1)(f). If the defect is wholly attributable to the design of the finished product or compliance with the finished product manufacturer’s instructions, the component producer is not liable. Evidence should show the pins were not defective and the collapse arose from the ladder design.

Worked Example 1.6

A laptop is stolen from a manufacturer’s warehouse before any supply to a distributor. The thief later suffers burns when the stolen laptop malfunctions due to a manufacturing defect. The thief sues the manufacturer under the CPA.

Answer:
The manufacturer has a complete defence under s 4(1)(b): it did not supply the product. The product was stolen before supply. The claim fails under the Act.

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 avoiding the defect was practicable or economically feasible. Known but unavoidable risks do not trigger the defence; only undiscoverable defects do.

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. This long-stop runs from supply of the product into circulation by the defendant and can bar claims where latent defects cause injury beyond the 10-year period.

In practice, limitation interacts with investigations into defect and causation. Early expert assessment and timely requests to suppliers under s 2(3) are important to identify proper defendants before limitation expires.

Worked Example 1.7

A claimant suffers lung disease in 2023 allegedly due to a defective filter mask supplied in 2012. They first connect the disease to the defect in 2024. Can they bring a CPA claim in 2025?

Answer:
The three-year limitation runs from the later of the date of damage or date of knowledge. If the claimant’s “date of knowledge” is 2024, issuing by 2025 may be within three years. However, the 10-year long-stop from the date of supply (2012) expires in 2022. The long-stop extinguishes the claim. The CPA claim is time-barred.

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.
• Joint and several liability applies among defendants in the supply chain; contribution between them is determined on a just and equitable basis.

Key Terms and Concepts

• strict liability
• product
• defect
• producer