Product liability - Intermediate examination by consumer

Learning Outcomes

This article explains the principle of intermediate examination in product liability claims under common law negligence and the Consumer Protection Act 1987 (CPA 1987), showing how examinations by retailers, installers, other intermediaries, or consumers can affect liability. It clarifies when an expected examination can break the chain of causation in negligence, when a mere opportunity to inspect is insufficient, and why latent defects normally remain the manufacturer’s responsibility. The article also explains how intermediate examination interacts with key authorities such as Donoghue v Stevenson, Kubach v Hollands, Evans v Triplex Safety Glass, Grant v Australian Knitting Mills, Griffiths v Arch Engineering, and Andrews v Hopkinson. It examines how warnings and instructions, the nature of the product, and the role and expertise of intermediaries influence whether liability shifts along the supply chain. In relation to the CPA 1987, the article outlines how strict liability operates, the limited relevance of intermediate examination to statutory defences (particularly s.4(1)(d)), and the continuing importance of consumer expectations of safety. It finally highlights how these principles are tested in SQE1-style multiple-choice questions, enabling accurate issue-spotting, rule application, and distinction between negligence and CPA 1987 claims.

SQE1 Syllabus

For SQE1, you are required to understand intermediate examination within the broader context of product liability under Tort law and apply the relevant legal principles to practical scenarios, with a focus on the following syllabus points:

• The 'narrow rule' in Donoghue v Stevenson and the manufacturer's duty of care.
• How the possibility of intermediate examination can affect the chain of causation in negligence claims.
• The distinction between a mere opportunity and a reasonable expectation of examination.
• The relevance of intermediate examination under the strict liability regime of the Consumer Protection Act 1987, particularly concerning defences.
• Potential liability of intermediaries (eg, suppliers, retailers) who fail to conduct expected examinations.
• The scope of “manufacturer” at common law, including assemblers, installers and repairers, and how this informs expectations of intermediate examination.
• The interplay between negligence and CPA 1987: what each regime requires, limitations (eg, £275 property damage threshold under the CPA 1987), and non-recoverability for damage to the product itself in strict liability.

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 common law negligence, when is an intermediate examination MOST likely to break the chain of causation between the manufacturer and the injured consumer?
   1. When the consumer had a brief opportunity to inspect the product.
   2. When the manufacturer specifically warned the intermediary to test the product before supply.
   3. When the defect was hidden and could not be discovered by reasonable inspection.
   4. When the product was supplied directly from the manufacturer to the consumer.
2. A consumer buys a hairdryer manufactured by 'ElectroCo'. The hairdryer has a latent defect, not discoverable by visual inspection, which causes it to overheat and start a fire, damaging the consumer's property. The consumer brings a claim against ElectroCo under the Consumer Protection Act 1987. ElectroCo argues that the consumer should have tested the hairdryer before first use. Is this likely to succeed as a defence?
   1. Yes, because the consumer is expected to carry out basic safety checks.
   2. Yes, if the instructions advised testing before use.
   3. No, because liability under the CPA 1987 is strict and the defect existed at the time of supply.
   4. No, unless the consumer was a professional electrician.
3. Which case established that a manufacturer might avoid liability if they reasonably expect an intermediary to examine the product, potentially revealing the defect?
   1. Donoghue v Stevenson
   2. Grant v Australian Knitting Mills Ltd
   3. Kubach v Hollands
   4. Evans v Triplex Safety Glass Co Ltd

Introduction

When a product causes harm, the injured party might seek redress from the manufacturer or others in the supply chain. One factor affecting liability, particularly under common law negligence, is the possibility of an intermediate examination. This refers to an inspection or test of the product carried out after it leaves the manufacturer but before it reaches the ultimate consumer. This examination could potentially reveal the defect that caused the harm. Understanding when such an examination affects liability is essential for advising clients and answering SQE1 questions.

Under the narrow rule in Donoghue v Stevenson [1932] AC 562, a manufacturer owes a duty of care to persons foreseeably affected by the product (ultimate consumers and others). The concept of intermediate examination sits within this duty analysis and frequently within causation: if a reasonably expected examination by an intermediary should reveal the defect but is not performed, the intermediary’s omission can break the chain of causation from the manufacturer to the claimant.

Key Term: Chain of Causation
The sequence of events linking the defendant's wrongful act (breach of duty) to the damage suffered by the claimant. A new, intervening act can 'break' this chain.

Intermediate Examination in Negligence

The foundational principle of manufacturer liability in negligence stems from Donoghue v Stevenson, which established a duty of care towards the ultimate consumer. However, this duty is not absolute. One significant limitation arises where there is a likelihood of intermediate examination.

Common law recognises a broad notion of “manufacturer”. Liability under the narrow rule can extend to those who create dangers in goods, including assemblers, installers and repairers (eg, Haseldine v Daw & Son Ltd [1941]) and, in appropriate circumstances, retailers or suppliers (eg, Andrews v Hopkinson [1957]). This breadth affects who might reasonably be expected to carry out examinations and what standard of inspection would be reasonable in the circumstances.

Breaking the Chain of Causation

In negligence, liability requires a proven chain of causation linking the defendant's breach of duty to the claimant's damage. An intermediate examination that reveals, or ought reasonably to reveal, the defect can break this chain.

The core question is whether the manufacturer could reasonably expect the examination to occur and for the defect to be detected before the product reached the consumer. If a manufacturer specifically instructs testing by an intermediary and it would have revealed the defect, failure by the intermediary to comply can be a novus actus interveniens. This is exemplified in Kubach v Hollands [1937] 3 All ER 907, where the intermediate supplier, on being told the chemical must be tested, failed to do so.

An important related issue is factual causation and lapse of time. In Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283, the windscreen shattered about a year after installation. The court found the time lapse and potential intervening causes (eg, strain in fitting) broke factual causation, preventing liability from attaching to the glass manufacturer.

Opportunity vs. Likelihood of Examination

A mere opportunity for examination is generally not sufficient to absolve the manufacturer. There must be a reasonable probability or expectation that an examination will occur.

Key Term: Intermediate Examination
An inspection or test of a product conducted by a party (such as a retailer, installer, or sometimes the consumer) between the product leaving the manufacturer and it causing harm to the ultimate consumer.

Key factors include:

• Nature of the product: Complex products or those requiring professional installation may reasonably attract intermediate checks; simple consumer goods might not.
• Type of defect: Obvious defects are more likely to be discovered than latent (hidden) ones. If a defect could not be found even with a reasonable examination, the manufacturer remains liable (Grant v Australian Knitting Mills Ltd [1936] AC 85).
• Instructions/Warnings: If the manufacturer issues specific instructions or warnings to an intermediary (eg, a distributor or retailer) to test the product before supply, and the intermediary fails to do so, liability may shift. Kubach v Hollands exemplifies this principle.
• Relationship and knowledge: The competence and role of the intermediary matter. A professional installer might be expected to conduct more thorough checks than a typical retailer. If the intermediary knows of a likely defect or the need for testing, their failure carries greater significance.
• Lapse of time and alternate causes: Where the defect may have arisen after manufacture or installation, or the fault could be attributable to another stage (eg, fitting or subsequent handling), the manufacturer may avoid liability (Evans v Triplex).

The courts emphasise that “opportunity” does not suffice: the manufacturer must reasonably expect that examination will occur and be of a nature that would reveal the defect. In Griffiths v Arch Engineering Co [1968] 3 All ER 217, the failure by those with an opportunity to examine a portable grinding tool did not absolve the owners; rather, liability attached where there was no reason to suppose an intermediate inspection would be carried out, or where those with the opportunity failed to inspect.

Worked Example 1.1

Scenario: A manufacturer produces chemical kits for schools. The instructions clearly state the chemicals must be tested by the distributor before supplying them to schools due to potential impurities. A distributor ignores this, supplies an impure batch to a school, and a student is injured during an experiment.

Question: Is the manufacturer likely to be liable in negligence for the student's injury?

Answer:
Unlikely. The manufacturer gave a specific warning and instruction for intermediate examination to the distributor. By reasonably expecting the distributor to test the chemicals, the manufacturer likely discharged its duty of care. The failure of the distributor to conduct the required test breaks the chain of causation, making the distributor potentially liable instead. (Based on Kubach v Hollands principle).

Additional Considerations: Latent Defects and Res Ipsa

Latent defects typically will not be discoverable by a reasonable intermediate examination. In such cases, even if an examination were expected, it would not break the causal chain. Grant v Australian Knitting Mills demonstrates that where harmful residues remain in garments intended to be worn without prior washing or inspection, the presence of the defect itself may support an inference of negligence absent a non-negligent explanation, aligning with the evidential assistance sometimes seen through res ipsa loquitur.

Worked Example 1.2

Scenario: A component manufacturer supplies toughened glass panes to a vehicle maker. Twelve months after sale, a pane spontaneously shatters, injuring the vehicle owner. The vehicle maker fitted the panes, and there were subsequent routine services. No instructions to test were given and no obvious defect existed at sale.

Question: Will the component manufacturer likely be liable in negligence?

Answer:
Unlikely. The lapse of time and possibility that the defect arose after manufacture or due to subsequent handling or fitting tend to break factual causation. Evans v Triplex Safety Glass suggests the manufacturer may avoid liability where intervening causes cannot be excluded and no reasonable expectation of an intermediate examination existed that would have revealed the defect.

Retailer/Supplier Liability

While the primary duty lies with the manufacturer, a retailer or supplier might acquire a duty of care if they ought reasonably to have inspected the goods before sale and failed to do so, especially if they have knowledge or the defect was discoverable (Andrews v Hopkinson [1957] 1 QB 229). Suppliers may also be liable where they are effectively “manufacturers” in narrow rule terms (eg, if their conduct created the danger), or where they had an opportunity and duty to examine products for known defects.

Griffiths v Arch Engineering shows that where an intermediary had an opportunity to inspect and did not, they may be liable; and if the ultimate supplier or owner had no reason to expect an intermediate inspection, they too may remain liable. The allocation of liability turns on who reasonably should have examined and whether such an examination would likely have revealed the defect.

Worked Example 1.3

Scenario: A dealer sells a second-hand car known to them to have common age-related steering faults. A simple check by a competent mechanic would reveal such faults. The dealer sells the car without inspection, and the steering fails, injuring the buyer.

Question: Is the dealer liable in negligence despite not being the original manufacturer?

Answer:
Likely yes. Andrews v Hopkinson supports liability where the supplier ought reasonably to have inspected the product (given the known propensity for defects and serious consequences). The dealer’s failure to conduct a basic mechanical check breaches their duty of care.

Worked Example 1.4

Scenario: A tool owner lends a portable grinding tool to a contractor’s employee, who uses it without any inspection. The tool has a defect that causes injury on first use. The owner assumed the borrower would inspect the tool before use but did not communicate this expectation.

Question: Who is likely liable?

Answer:
Liability may attach to both the owner and the party with the opportunity to inspect, depending on knowledge and expectations. Griffiths v Arch Engineering indicates that those with opportunity who fail to examine can be liable, and those who had no reason to believe an intermediate examination would occur may remain liable as well. The facts suggest a failure by the user’s employer to examine and a continuing responsibility by the owner.

Intermediate Examination under the Consumer Protection Act 1987

The CPA 1987 establishes a regime of strict liability for defective products. This means a claimant does not need to prove fault (negligence) on the part of the producer; they only need to show the product was defective and caused damage.

The statutory framework differs significantly from negligence:

• Defect is defined by the safety not being such as persons generally are entitled to expect (s.3), assessed by all the circumstances: manner and purpose of marketing, instructions and warnings, reasonably expected uses, and the time of supply.
• “Producer” includes the manufacturer, an own-brander (placing name or mark on the product), and the importer of a product into the UK. A supplier can be liable only if they fail to identify the producer/own-brander/importer on reasonable request (s.2(3)).
• Damage covers death/personal injury and property damage exceeding £275 (s.5(4)); damage to business property is excluded (s.5(2)). The cost of repairing or replacing the defective product itself is not recoverable under the CPA (pure economic loss).
• Liability under the CPA cannot be excluded (s.7).

Relevance of Examination

Intermediate examination plays a less direct role under the CPA 1987 compared to negligence. The focus is on the state of the product at the time it was supplied by the producer (or own-brander/importer).

• Defence under s.4(1)(d): A producer can escape liability if they can prove that the defect did not exist in the product at the time they supplied it. Subsequent damage or deterioration (eg, incorrect installation or mishandling by an intermediary) may support this defence.
• Development risks defence under s.4(1)(e): If the state of scientific and technical knowledge at the time was such that a producer could not have been expected to discover the defect, liability can be avoided. The defence is narrowly applied; in A v National Blood Authority [2001], contaminated blood products were found defective despite practical difficulties in testing, as persons were entitled to expect safe transfusion blood.
• Component parts under s.4(1)(f): A component manufacturer may have a defence if the defect is attributable to the design of the finished product, and the component complied with the instructions of the finished-product manufacturer.
• Contributory negligence: If a consumer’s conduct contributes to the damage (eg, ignoring clear warnings or misuse), damages may be reduced under the Law Reform (Contributory Negligence) Act 1945. Consumers are not generally expected to conduct technical examinations.

CPA strict liability centres on consumer expectations of safety. In Bogle v McDonald’s Restaurants [2002], very hot coffee was not defective because consumers expect coffee to be hot and packaging to allow removal of lids; conversely, in Abouzaid v Mothercare [2001], the design of an elastic strap that struck a child’s eye was found not to meet safety expectations.

Worked Example 1.5

Scenario: A consumer buys a bicycle manufactured by 'CycleSafe Ltd' from a retailer, 'BikeShop'. The bicycle's frame has a hidden manufacturing defect. The consumer uses the bike normally, and the frame snaps, causing injury. BikeShop did not inspect the frame before sale, as this would require specialist equipment.

Question: Can CycleSafe Ltd avoid liability under the CPA 1987 by arguing that BikeShop or the consumer should have examined the frame?

Answer:
Unlikely. Liability under the CPA 1987 is strict. The defect existed when CycleSafe supplied the bike. It was a latent defect not discoverable by reasonable visual inspection by BikeShop or the consumer. The s.4(1)(d) defence would likely fail. Contributory negligence is unlikely as normal use is expected. CycleSafe Ltd is likely liable.

Worked Example 1.6

Scenario: A parent purchases a “child-resistant” detergent container. A child opens the lid and ingests detergent, suffering harm. Testing shows the lid did not meet a particular British Standard but was harder to open than ordinary lids. The producer argues compliance with consumer expectations.

Question: Is the product defective under the CPA?

Answer:
Likely not if the lid is harder to open than a normal lid, consistent with consumer expectations of “child-resistant” packaging, even if not meeting a specific standard. Pollard v Tesco Stores [2006] indicates that labelling and functionality judged by persons’ entitlement to expect can defeat a defect allegation where the essential child-resistance is achieved.

Limitation and Scope

CPA claims must be brought within three years of the date of damage or knowledge thereof, and are subject to a ten-year “long-stop” from the date the product was first put into circulation. This long-stop can bar claims even if damage occurs later than ten years after circulation.

Under CPA, liability is joint and several among the listed defendants. A supplier who cannot identify the producer, own-brander or importer on a reasonable request can be liable, but in practice can avoid liability by providing identification details promptly.

Exam Warning

Do not confuse the role of intermediate examination in negligence (breaking the chain of causation) with its more limited role under the CPA 1987 (primarily relating to defences, especially s.4(1)(d)). In SQE1 questions, identify whether the claim is framed in negligence or under the CPA 1987, as this dictates how intermediate examination affects liability.

Further Distinctions to Keep in Mind

• Negligence looks to fault, breach, and causation. Intermediate examination is relevant both to duty under the narrow rule and to causation. CPA imposes strict liability; examination matters only insofar as it informs defences (eg, defect not present at supply, misuse, development risks).
• Damage to the product itself: recoverable in negligence if caused by breach, but under CPA, replacement/repair of the defective product itself is pure economic loss and unrecoverable.
• Property damage thresholds: CPA requires property damage to exceed £275 and excludes business property. Negligence has no such statutory threshold.

Key Point Checklist

This article has covered the following key knowledge points:

• Intermediate examination involves inspecting/testing a product after it leaves the manufacturer but before it reaches the consumer.
• In negligence, a reasonable expectation of intermediate examination that should reveal the defect can break the chain of causation, shifting liability from the manufacturer.
• A mere opportunity to examine is insufficient; there must be a likelihood or expectation of examination, and it must be of a type likely to reveal the defect.
• Latent defects will not be discoverable by reasonable examination; the manufacturer remains liable for injuries caused by such defects.
• Lapse of time and possible intervening causes can defeat factual causation against manufacturers (eg, Evans v Triplex Safety Glass Co Ltd).
• Suppliers/retailers may owe duties to inspect where circumstances make defects reasonably foreseeable or readily discoverable; failure can lead to liability (eg, Andrews v Hopkinson).
• Under the CPA 1987 (strict liability), intermediate examination is less significant for liability but may be relevant to defences (eg, defect arose after supply, component compliance, development risks).
• CPA liability cannot be excluded; damage to the defective product itself is not recoverable, and property damage must exceed £275 (non-business).
• Consumers are generally not expected to conduct detailed technical examinations; contributory negligence may reduce damages only where consumer conduct contributes to harm.
• CPA limitation includes a three-year limitation period and a ten-year long-stop from the date the product was put into circulation.

Key Terms and Concepts

• Intermediate Examination
• Chain of Causation