Product liability - Duty of care of manufacturers

Learning Outcomes

This article explains the duty of care owed by manufacturers to ultimate consumers and others foreseeably affected by defective products, and sets out how to establish negligence in product liability claims by analysing duty, breach, causation and damage, including when the evidential doctrine res ipsa loquitur can assist in proving breach where the precise defect is unclear. It explains the scope of common law liability, who can bring claims, and the types of recoverable loss. It distinguishes fault‑based negligence from strict statutory liability under the Consumer Protection Act 1987 (CPA), identifying who can sue, who may be liable (producer, own‑brander, importer, supplier on identification failure), what amounts to a defect, and what damage is compensable. It further examines how intermediate examination, misuse, warnings, abnormal use and contributory negligence affect liability under both routes. Finally, it analyses the principal statutory defences (including the development risks defence), the CPA’s prohibition on exclusion of liability, the interaction with limitation rules and the ten‑year long‑stop period, and the significance of the CPA property damage threshold for exam problem questions.

SQE1 Syllabus

For SQE1, you are required to understand the duty of care owed by manufacturers in product liability claims, with a focus on the following syllabus points:

• the common law duty of care of manufacturers to consumers (including the Donoghue v Stevenson principle)
• the elements required to establish negligence in product liability
• the scope of liability and who can claim
• the role of intermediate examination
• the distinction between common law negligence and strict liability under the Consumer Protection Act 1987
• the main defences available to manufacturers
• the evidential role of res ipsa loquitur in product cases
• CPA limitation: three-year limitation and ten-year long‑stop from first circulation
• CPA damage rules: personal injury and qualifying property damage threshold
• CPA defendants: producer, own‑brander, importer, and the supplier identification route
• the effect of warnings, misuse and abnormal use on both common law and CPA claims
• no exclusion of liability under the CPA and limits on exclusion for negligence in consumer contexts

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. What is the key case that established the modern duty of care for manufacturers in product liability?
2. Who can bring a claim against a manufacturer for a defective product under common law?
3. What is the effect of an intermediate examination on a manufacturer's liability?
4. Under the Consumer Protection Act 1987, is it necessary to prove negligence to succeed in a claim for a defective product?
5. Name one statutory defence available to manufacturers under the Consumer Protection Act 1987.

Introduction

When a consumer is harmed by a defective product, the law may impose liability on the manufacturer. For SQE1, you must know when a manufacturer owes a duty of care, how that duty is established, and how liability can arise under both common law negligence and the Consumer Protection Act 1987. This article explains the key legal principles, terms, and defences relevant to the duty of care of manufacturers in product liability.

The Common Law Duty of Care

The Donoghue v Stevenson Principle

The modern law of product liability began with the case of Donoghue v Stevenson [1932] AC 562, which established that a manufacturer owes a duty of care to the ultimate consumer of its products.

Key Term: duty of care
A legal obligation to take reasonable care to avoid acts or omissions that could foreseeably cause harm to another.

Key Term: manufacturer
Any party who produces, assembles, installs, repairs, or supplies a product before it reaches the consumer.

The "neighbour principle" from Donoghue v Stevenson means that a manufacturer must take reasonable care to ensure that products are safe for those who are likely to use them. This duty is not limited to the person who purchased the product, but extends to anyone who could foreseeably be affected.

In product cases, the narrow rule derived from Donoghue focuses on circumstances commonly present where negligence may be inferred: the product is intended to reach the consumer without reasonable opportunity for intermediate examination, the consumer is likely to use it in the usual way, and the defect was present when the product left the manufacturer. These features are especially important for products in sealed or opaque containers, pharmaceuticals, chemicals, and components incorporated into finished goods.

Elements of Negligence in Product Liability

To succeed in a negligence claim against a manufacturer, the claimant must prove:

• The manufacturer owed a duty of care to the claimant.
• The manufacturer breached that duty by failing to meet the standard of a reasonable manufacturer, including appropriate design, quality control, testing, and provision of adequate warnings and instructions.
• The breach caused the claimant's injury or damage (factual and legal causation).
• The damage was not too remote (i.e., it was a foreseeable consequence).

Key Term: negligence
A breach of a legal duty to take care, resulting in damage to another.

Evidence of breach may be direct (e.g., flawed design documents) or circumstantial. In appropriate cases, res ipsa loquitur can assist: where the product fails in a way that ordinarily would not occur without negligence, the manufacturer had control over the manufacturing process, and the precise cause is unknown, an inference of negligence can arise unless the defendant provides a credible non‑negligent explanation.

Who Can Claim?

The duty of care is owed to any person who it is reasonably foreseeable may be affected by the product, not just the purchaser. This includes users, bystanders, and even property owners affected by the product. Retailers, installers and repairers may also owe duties in negligence where, for example, they knew or ought to have known of a hazard or undertook safety‑critical work.

What is a Product?

Key Term: product
Any manufactured item capable of causing harm, including its packaging, instructions, and warnings.

Products include finished goods, components, raw materials, and even electricity. Failure to provide adequate instructions or warnings can render a product unsafe in use, engaging negligence where the risk is foreseeable and not obvious, and a reasonable warning would reduce risk.

Intermediate Examination

A manufacturer may avoid liability if, before the product reaches the consumer, there is a reasonable expectation that an intermediate party (such as a retailer, installer or laboratory) will examine the product and discover any defect, and that examination should have revealed the defect.

Key Term: intermediate examination
An inspection or check of a product by a third party before it reaches the consumer, which may break the chain of causation.

The defence is fact‑sensitive. It is unlikely to assist where the defect is latent, concealed, or not reasonably discoverable by a routine check, or where the manufacturer discourages or does not alert intermediaries to the need for inspection. Conversely, where a competent intermediary undertakes work which, if properly done, would detect or prevent the defect from causing harm, the manufacturer may not be liable for the resulting injury.

Scope of Liability

The manufacturer is liable for personal injury and damage to other property caused by a defective product. However, the cost of repairing or replacing the defective product itself is considered pure economic loss and is not recoverable in negligence. Consequential economic loss flowing from physical injury or damage to other property (such as loss of profits during repairs) may be recoverable if caused by the negligence and not too remote.

Worked Example 1.1

Scenario:
A consumer buys a kettle that explodes due to a manufacturing defect, causing burns and damaging the kitchen wall. Can the consumer claim against the manufacturer for all losses?

Answer:
The consumer can claim for personal injury (burns) and property damage (kitchen wall) caused by the defective kettle. The cost of replacing the kettle itself is pure economic loss and is not recoverable in negligence.

Defences to Negligence

Manufacturers may defend a negligence claim by showing:

• There was a reasonable possibility of intermediate examination that should have revealed the defect.
• The product was not defective when it left the manufacturer (subsequent mishandling, storage, or tampering caused the problem).
• The claimant misused the product, used it in a way not reasonably foreseeable, or ignored clear and adequate warnings and instructions.
• The claimant consented to a known risk or was contributorily negligent, leading to an appropriate reduction in damages.

Contributory negligence commonly arises where instructions or warnings were reasonable, obvious risks were ignored, or the product was used contrary to clear guidance.

Worked Example 1.2

Scenario:
A vehicle’s windscreen shatters after installation by a garage using a new screen supplied by the glass manufacturer. A routine fitment check would have identified the wrong adhesive was used. The driver is injured when the screen fails. Is the manufacturer liable in negligence?

Answer:
Not if the defect was not present in the supplied screen and the failure resulted from the fitter’s negligent installation, which a reasonable intermediate examination (the garage’s fitment process) should have avoided. The installer’s negligence breaks the chain of causation.

Statutory Liability: Consumer Protection Act 1987

The Consumer Protection Act 1987 (CPA) imposes strict liability for defective products. This means the claimant does not need to prove negligence—only that the product was defective and caused damage.

Key Term: strict liability
Liability imposed without the need to prove fault or negligence.

Key Term: producer
The manufacturer of a finished product, any person who processes a product, and a manufacturer of a component or raw material.

Key Term: own‑brander
A person who, by putting their name or trademark on a product, holds themselves out as its producer.

Key Term: importer
A person who imports a product into the UK for supply in the course of business.

Key Term: supplier
A person who supplies a product. A supplier can be liable under the CPA if, when requested, they fail within a reasonable time to identify the producer or the importer into the UK from whom they obtained the product.

Elements of a CPA Claim

To succeed under the CPA, the claimant must show:

• They suffered damage (personal injury, or damage to property of a kind ordinarily intended for private use, occupation or consumption and intended by the claimant mainly for their own private use) exceeding £275 in value.
• The damage was caused by a defect in a product.
• The defendant was a producer, own‑brander, importer into the UK, or a supplier who failed to identify the responsible producer or importer.

Key Term: defect
A product is defective if its safety is not such as persons generally are entitled to expect, taking all circumstances into account, including the manner and purposes of marketing, instructions and warnings, what might reasonably be expected to be done with the product, and the time when the product was put into circulation.

Key Term: put into circulation
The point at which the producer first supplies the product to another person, enabling it to be used or distributed.

Safety is assessed at the time of circulation, not with hindsight. A product is not defective merely because a safer product is subsequently marketed.

Key Term: damage (CPA)
For CPA purposes, damage means death, personal injury, or damage to qualifying private property exceeding £275. Damage to the product itself is not recoverable under the CPA.

Who is Liable?

Liability under the CPA can attach to:

• The producer (including component manufacturers).
• Anyone who puts their name or trademark on the product (own‑brander).
• Anyone who imports the product into the UK.
• A supplier, but only if they cannot identify (within a reasonable time after request) the producer or the importer who supplied the product to them.

Key Term: development risks defence
A statutory defence under the CPA where the producer proves that, given the state of scientific and technical knowledge at the time the product was put into circulation, the defect could not have been discovered.

Defences under the CPA

Manufacturers and others can defend a CPA claim by proving:

• The defect was due to compliance with legal requirements.
• The product was not supplied in the course of business.
• The product was not supplied by the defendant at all (e.g., it was stolen).
• The defect did not exist in the product at the time the defendant put it into circulation.
• The state of scientific and technical knowledge at the time did not allow the defect to be discovered (development risks defence).
• The defect is attributable to the design of the finished product into which a component was fitted, or to instructions given by the producer of the finished product.

Contributory negligence may reduce damages under the Law Reform (Contributory Negligence) Act 1945 where the claimant’s conduct contributed to the damage. Excluding or limiting liability under the CPA is prohibited.

Key Term: put into circulation
The time when the producer first parts with control of the product so it can be supplied or used. It sets the reference point for assessing “safety” and the availability of the development risks defence.

Worked Example 1.3

Scenario:
A consumer is injured by a blender that shatters during use. The manufacturer argues that the defect could not have been discovered with the scientific knowledge available at the time. Can the manufacturer avoid liability?

Answer:
If the manufacturer can prove that, given the state of scientific and technical knowledge accessible at the time the blender was put into circulation, the defect could not have been discovered, they may succeed with the development risks defence under the CPA. If the risk and its mechanism were already known in the field, the defence will fail.

Limitation under the CPA

Two time bars apply:

• A three‑year limitation period from the date of damage, or the date of knowledge of damage, defect and identity of a responsible person (whichever is later).
• A ten‑year long‑stop from the date the particular defendant put the product into circulation, after which no action lies, regardless of the claimant’s knowledge.

These are in addition to, and not a substitute for, the claimant’s need to satisfy the elements of a CPA claim.

Worked Example 1.4

Scenario:
A consumer suffers hand lacerations when a jar spontaneously shatters two years after purchase. The grocer supplied the jar but cannot (after request) identify the importer or producer. Can the consumer sue the grocer under the CPA?

Answer:
Yes. A supplier who, upon request, fails within a reasonable time to identify the producer or the importer into the UK will be treated as a defendant under the CPA. If the jar was defective and caused qualifying damage, the grocer will be strictly liable absent a statutory defence.

Worked Example 1.5

Scenario:
A defective power pack damages a small business’s industrial printer (£1,200). No one is injured. Can the business recover under the CPA?

Answer:
Not under the CPA. Property damage must relate to property ordinarily intended for private use, occupation or consumption and intended by the claimant mainly for private use, and exceed £275. Business property damage falls outside the CPA. The business may consider a negligence claim (if fault can be proved) or contractual remedies.

Exam Warning

For SQE1, remember that under the CPA, the claimant does not need to prove negligence. Liability is strict, but not absolute—statutory defences may apply. Note also the ten‑year long‑stop, the £275 property damage threshold for qualifying private property, and that the product’s own cost is not recoverable under the CPA.

Comparing the Routes: Negligence and the CPA

Although both routes address harm caused by defective products, they differ in important respects:

• Fault: negligence requires proof of breach; CPA imposes strict liability based on defect and causation.
• Defendants: negligence targets the party at fault (commonly the manufacturer or others in the chain who were negligent); CPA identifies producers, own‑branders, importers and, in limited circumstances, suppliers.
• Damage: both allow recovery for personal injury and damage to other property. Under CPA, property must be qualifying private property and exceed £275; in negligence, ordinary remoteness principles apply. The cost of the defective product itself is not recoverable in either route as “damage”.
• Defences: negligence recognises intermediate examination, abnormal use, warnings, consent and contributory negligence; the CPA provides specific statutory defences (including development risks) and also allows contributory negligence, but does not recognise intermediate examination as a complete defence—though foreseeable abnormal use and clear warnings can affect whether a product is “defective”.
• Limitation: negligence follows the usual limitation rules; the CPA introduces an additional ten‑year long‑stop from first circulation by the defendant.
• Exclusions: liability under the CPA cannot be excluded or restricted; negligence liability to consumers is also tightly controlled by consumer legislation governing unfair terms.

Worked Example 1.6

Scenario:
A component supplier makes a capacitor to a finished‑product manufacturer’s specifications. The finished product (a laptop) overheats due to the OEM’s overall thermal design. Users suffer minor burns. The OEM sues the capacitor supplier under the CPA.

Answer:
The component producer has a defence if the defect is wholly attributable to the design of the finished product or to instructions given by the finished‑product producer. If the capacitor complied with specification and was not itself defective, the component producer will not be liable under the CPA.

Key Point Checklist

This article has covered the following key knowledge points:

• The duty of care owed by manufacturers to consumers is established by Donoghue v Stevenson.
• Negligence in product liability requires proof of duty, breach, causation, and damage; res ipsa loquitur can assist in appropriate product failure cases.
• The duty extends to all foreseeable users and bystanders, not just purchasers.
• Intermediate examination may break the chain of liability where a reasonable inspection should have revealed the defect.
• Liability in negligence covers personal injury and damage to other property, but not pure economic loss such as the cost of replacing the defective product itself.
• The Consumer Protection Act 1987 imposes strict liability for defective products; fault is not required.
• Under the CPA, defendants include producers, own‑branders, importers into the UK, and suppliers who fail to identify the producer or importer on request.
• A product is defective if its safety is not such as persons generally are entitled to expect, judged at the time it was put into circulation.
• Recoverable CPA damage includes personal injury and qualifying private property damage exceeding £275; the product’s own cost is not recoverable.
• Statutory defences under the CPA include legal compliance, no supply/in course of business, absence of defect at circulation, development risks, and component design compliance; contributory negligence can reduce damages.
• CPA claims are subject to a three‑year limitation and a ten‑year long‑stop from when the product was first put into circulation by the defendant.
• Liability under the CPA cannot be excluded or limited; negligence liability may be limited only within the strict confines of unfair terms legislation and reasonableness/fairness tests.

Key Terms and Concepts

• duty of care
• manufacturer
• negligence
• product
• intermediate examination
• strict liability
• defect
• producer
• own‑brander
• importer
• supplier
• put into circulation
• damage (CPA)
• development risks defence