Learning Outcomes
This article outlines the statutory defences available under the Consumer Protection Act 1987 (CPA 1987). After studying this material, you should understand the specific defences available to producers and suppliers against strict liability claims for defective products. This includes understanding the 'development risks' defence, the defence of compliance with statutory obligations, and other key statutory exceptions. This knowledge is essential for answering SQE1 multiple-choice questions involving product liability scenarios and defences.
SQE1 Syllabus
For SQE1, you are required to understand the operation of the Consumer Protection Act 1987, including the defences available to defendants. Your knowledge should allow you to identify and apply the relevant defences in specific factual scenarios presented in assessment questions.
Pay particular attention in your revision to:
- the specific statutory defences provided in section 4 of the CPA 1987
- the 'development risks' or 'state of the art' defence and its interpretation
- the defence relating to defects in component parts versus finished products
- the availability of contributory negligence as a partial defence
- the general inability to exclude liability under the CPA 1987.
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.
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Which of the following defences requires the defendant to prove that the state of scientific and technical knowledge at the time of supply was such that a producer could not be expected to have discovered the defect?
- Compliance with statutory requirements
- Defect did not exist at time of supply
- Development risks defence
- Component manufacturer defence
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A manufacturer supplies tyres to a car company according to the car company's design specifications. The tyres are not inherently defective, but the design causes them to fail when fitted to the car. Can the tyre manufacturer rely on a defence under the CPA 1987 if a driver is injured?
- Yes, the development risks defence.
- Yes, the component manufacturer defence relating to design compliance.
- No, liability is strict.
- No, unless they can prove the car company was negligent.
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Can a business exclude liability for death or personal injury caused by a defective product under the CPA 1987 through a contractual term?
- Yes, if the term is reasonable.
- Yes, if the term is fair.
- Yes, if the consumer explicitly agrees.
- No, liability cannot be excluded or limited.
Introduction
The Consumer Protection Act 1987 (CPA 1987) imposes strict liability on producers and others in the supply chain for damage caused by defective products. This means a claimant does not need to prove fault (negligence) on the part of the defendant. However, liability is not absolute. The Act provides several specific defences in section 4 that allow a defendant to avoid liability if certain conditions are met. Understanding these defences is essential for applying the CPA 1987 correctly in practice and for the SQE1 assessment.
STATUTORY DEFENCES UNDER THE CPA 1987
Section 4(1) of the CPA 1987 provides six specific defences. The burden of proving any of these defences lies with the defendant.
Compliance with Legal Requirements (s 4(1)(a))
A defendant has a defence if they can show that the defect was attributable to compliance with any requirement imposed by or under any enactment or with any retained EU obligation. This defence applies where the defect is the inevitable result of complying with a mandatory legal standard. It is interpreted narrowly; compliance with general industry standards is unlikely to suffice. The law must effectively require the product to have the characteristic that constitutes the defect.
Defendant Did Not Supply the Product (s 4(1)(b))
This defence is available if the defendant can prove they did not supply the product to another person. For example, if the product was stolen from the manufacturer before it entered the supply chain, the manufacturer could potentially use this defence.
Supply Not in Course of Business (s 4(1)(c))
Liability under the CPA 1987 generally attaches to those supplying products in the course of a business. Section 4(1)(c) provides a defence if the supply was not in the course of a business and was not done with a view to profit. This might cover, for instance, a private individual giving a homemade item as a gift, but would not protect a business giving away free samples for promotional purposes.
Defect Did Not Exist at Time of Supply (s 4(1)(d))
A defendant can escape liability if they prove that the defect did not exist in the product at the time it was supplied by them (or by a person potentially liable under s 2(2) CPA 1987, such as the producer or importer). This defence covers situations where the defect arose after the product left the defendant's control, perhaps due to misuse, improper maintenance by the user, or natural wear and tear. Producers often rely on quality control records to support this defence.
Development Risks Defence (s 4(1)(e))
This is often referred to as the 'state of the art' defence. It is available if the defendant proves that the state of scientific and technical knowledge at the relevant time (when the product was supplied) was not such that a producer of products of the same description might be expected to have discovered the defect if it had existed in their products while under their control.
Key Term: Development Risks Defence A defence under s 4(1)(e) CPA 1987 where the defendant proves that the state of scientific and technical knowledge at the time the product was supplied was not sufficiently advanced to allow the defect to be discovered.
The test is objective and considers the highest level of knowledge accessible anywhere in the world, not just the standard within the defendant's specific industry or country. This defence has been interpreted restrictively, particularly concerning known risks that were unavoidable. The leading case, A v National Blood Authority [2001] 3 All ER 289, established that if a risk was known (even if unavoidable), the defence could not be relied upon if the product failed to meet the safety standards persons generally are entitled to expect.
Worked Example 1.1
Pharma Co develops a new drug. Five years after its launch, scientific research reveals a previously unknown side effect causing serious harm, which could not have been detected with the scientific knowledge available at the time the drug was supplied. Can Pharma Co rely on a defence under the CPA 1987?
Answer: Pharma Co may be able to rely on the development risks defence under s 4(1)(e). They would need to prove that the state of scientific and technical knowledge at the time the drug was supplied was such that they could not have been expected to discover the risk of this side effect.
Component Manufacturer Defence (s 4(1)(f))
This defence applies specifically to producers of component parts incorporated into a larger, finished product. The component manufacturer is not liable if they prove that the defect in the finished product arose wholly from the design of the finished product or from compliance with instructions given by the manufacturer of the finished product.
Key Term: Component Manufacturer Defence A defence under s 4(1)(f) CPA 1987 available to the producer of a component part where a defect in the finished product is attributable solely to the design of the finished product or compliance with the finished product manufacturer's instructions.
Worked Example 1.2
Engine Co manufactures engine components to specifications provided by Car Co. An engine fails due to a design flaw in Car Co's specification, not due to any fault in Engine Co's manufacturing process. A driver is injured. Can Engine Co rely on a defence under the CPA 1987?
Answer: Engine Co may be able to rely on the component manufacturer defence under s 4(1)(f). They would need to demonstrate that the defect causing the engine failure was entirely attributable to Car Co's design or instructions, and not to any defect in the component as manufactured by Engine Co.
OTHER DEFENCES AND EXCLUSIONS
Beyond the specific defences in section 4, other legal principles can affect liability under the CPA 1987.
Contributory Negligence
The Law Reform (Contributory Negligence) Act 1945 applies to claims under the CPA 1987. If the claimant's damage was caused partly by a defect in a product and partly by the claimant's own fault, the damages awarded may be reduced to the extent the court considers just and equitable.
Key Term: Contributory Negligence (CPA 1987) A partial defence where the claimant's damages under the CPA 1987 may be reduced if their own carelessness contributed to the damage suffered.
Exclusion of Liability
Section 7 of the CPA 1987 prevents defendants from excluding or limiting their liability under the Act through any contract term, notice, or other provision. Any attempt to do so is void.
Exam Warning
Do not confuse the strict liability nature of the CPA 1987 with absolute liability. While claimants do not need to prove fault, defendants can avoid liability entirely if they successfully establish one of the statutory defences under section 4. Remember also that contributory negligence can reduce the damages awarded.
Revision Tip
Focus on understanding the specific requirements and limitations of each defence. Pay particular attention to the development risks defence (s 4(1)(e)) as it involves assessing the 'state of scientific and technical knowledge' at the time of supply, a concept often tested. Also, remember that the burden of proof for all s 4 defences rests on the defendant.
Key Point Checklist
This article has covered the following key knowledge points:
- The CPA 1987 provides specific statutory defences in section 4(1) which can absolve a defendant from strict liability.
- The burden of proving any statutory defence rests entirely on the defendant.
- Key defences include compliance with legal requirements, non-supply, defect non-existence at time of supply, development risks, and the component manufacturer defence.
- The development risks defence (s 4(1)(e)) relates to the discoverability of the defect based on scientific/technical knowledge at the time of supply and is narrowly interpreted.
- The component manufacturer defence (s 4(1)(f)) applies if the defect is due to the finished product's design or manufacturer's instructions.
- Contributory negligence operates as a partial defence, potentially reducing the damages awarded to the claimant.
- Liability under the CPA 1987 cannot be excluded or limited by contract terms or notices (s 7).
Key Terms and Concepts
- Development Risks Defence
- Component Manufacturer Defence
- Contributory Negligence (CPA 1987)
