Consumer Protection Act 1987: Strict Liability and Product D...

Introduction

The Consumer Protection Act 1987 (CPA 1987) sets out strict liability for damage caused by defective products in the UK. It implements the EU Product Liability Directive (85/374/EEC), meaning a claimant does not need to prove negligence. Instead, they must show that a product was defective and that the defect caused death, personal injury, or certain property damage.

The Act applies to a wide range of products, including goods, components, raw materials, and electricity. It places responsibility on manufacturers, importers, and those who put their own name or brand on a product, with a backstop for suppliers who fail to identify the producer on request. Claims are subject to a three‑year primary limitation period and a ten‑year longstop from the date the product was put into circulation.

This guide sets out the key rules, common defences, practical steps for both claimants and businesses, and leading cases that shape how courts assess defect and safety expectations. The CPA remains part of UK law post‑Brexit.

What You’ll Learn

• What counts as a “product” and who the Act treats as a “producer”
• How “defect” is judged by safety that people are generally entitled to expect
• The scope of recoverable damage and the £275 property damage threshold
• How strict liability differs from negligence and how claims can run in parallel
• Defences under section 4, including the state‑of‑the‑art defence
• Limitation rules: three‑year primary period and ten‑year longstop
• How courts use industry standards, warnings, and risk–benefit evidence
• Practical steps for claimants, manufacturers, importers, and retailers
• The role of case law such as A v National Blood Authority and Abouzaid v Mothercare
• Post‑Brexit status and cross‑border supply considerations

Core Concepts

What counts as a product

• Section 1(2): “Product” includes any goods and electricity.
• Components and raw materials are covered, as is a defective part incorporated into a finished product.
• Software and standalone digital content are not expressly included under the CPA (although they may be addressed by other regimes or future reform).

Definition of a defective product

• Section 3: A product is defective if its safety is not such as persons generally are entitled to expect.
• The court considers all the circumstances, including:
  • How the product was marketed and any claims made for it
  • Labelling and instructions, including warnings about risks
  • What might reasonably be expected to be done with the product
  • The time when the product was put into circulation
• Design defects, manufacturing flaws, and inadequate warnings can all render a product defective.
• Compliance with standards is relevant but not decisive; a compliant product can still be defective if people are entitled to expect more.

Who is liable

• Section 2: Liability falls on the “producer,” which can be:
  • The manufacturer of a finished product
  • The producer of a raw material or a component
  • An “own‑brander” who puts their name or mark on the product
  • An importer into the UK for the purposes of supply in the course of business
• A supplier can be liable if, when requested within a reasonable time, they fail to identify the producer, the person who supplied the product to them, or (for imports) the relevant importer.

Strict liability vs negligence

• Under the CPA, the claimant does not need to prove fault. They must prove:
  • Defect (safety not as people are entitled to expect)
  • Causation (the defect caused the damage)
  • Qualifying damage (death, personal injury, or certain property damage)
• Negligence claims may be brought in parallel (for example, where a failure to warn is alleged).
• Contributory negligence can reduce damages under the Law Reform (Contributory Negligence) Act 1945.

Scope of recoverable damage and exclusions

• Section 5:
  • Recoverable: death or personal injury, and damage to property ordinarily intended for private use, occupation or consumption and used by the claimant mainly for that purpose.
  • Property damage must exceed £275.
• Exclusions:
  • Damage to the defective product itself
  • Pure economic loss (such as lost profits without physical damage)
  • Property used mainly for business purposes

Defences available to producers

• Section 4 provides several defences:
  • Compliance with mandatory legal requirements
  • The producer did not supply the product
  • The product was not supplied in the course of business
  • The defect did not exist at the time of supply
  • State‑of‑the‑art (development risks) defence: the state of scientific and technical knowledge at the time was not such that a producer of products of the same description might be expected to have discovered the defect
  • Component defence: where the defect is attributable to the design of the finished product or to instructions given by the manufacturer of the finished product
• Misuse and abnormal use are addressed through the section 3 safety assessment, causation, and contributory negligence.

Time limits

• Primary limitation: three years from the later of the date of damage or the claimant’s date of knowledge of the damage, the defect, and the identity of the defendant.
• Longstop: no action may be brought more than ten years from the date the product was put into circulation (Limitation Act 1980, section 11A, implementing Article 11 of the Directive).
• Usual rules on persons under a disability apply (e.g., time may not run for minors until majority).

EU alignment and post‑Brexit status

• The CPA implements Directive 85/374/EEC and remains in force post‑Brexit.
• UK businesses selling into the EU must still meet EU product liability requirements for those markets.
• Policy discussions continue on whether the UK regime should be updated to address software and AI; at the time of writing, the CPA framework remains as enacted.

Key Examples or Case Studies

A v National Blood Authority [2001] 3 All ER 289

• Issue: Blood contaminated with hepatitis C.
• Held: The blood was defective; people are entitled to expect blood to be free of infection. The state‑of‑the‑art defence did not apply because the risk of contamination was known at the time, even if individual units could not be screened to detect it.
• Point: Known but hard‑to‑detect risks may still result in defect; warnings and expectations matter.

Abouzaid v Mothercare (UK) Ltd [2000] All ER (D) 2106

• Issue: Injury caused by an elastic strap on a sleeping bag during fitting.
• Held: Product defective; no need to prove negligence. The risk assessment showed users were entitled to expect better safety or adequate warnings.
• Point: Ordinary use without adequate warnings can ground liability.

Pollard v Tesco Stores Ltd [2006] EWCA Civ 393

• Issue: Child opened a “child resistant” cap and ingested dishwasher powder; cap did not meet a British Standard.
• Held: Not defective. The product was labelled as child resistant (not child‑proof). Compliance with a standard is relevant but not conclusive; absence of a claim to comply with the standard weakened the argument for defect.
• Point: Safety expectations reflect claims made, warnings, and common understanding.

Richardson v LRC Products Ltd [2000] 59 BMLR 185

• Issue: Condom failure leading to pregnancy.
• Outcome: Claim failed; the court accepted that a known (low) failure rate did not, without more, prove defect where the product met expected safety and quality controls.
• Point: Statistical failure in a small number of cases does not automatically establish defect.

Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB)

• Issue: Orthopaedic implant alleged to be defective.
• Held: Not defective on the facts. The court emphasised weighing all circumstances, including risk–benefit, compliance with standards, and the product’s intended purpose.
• Point: The section 3 test is contextual to the product’s safety expectations at the time of supply.

Practical Applications

• For claimants

  • Identify the correct defendant: manufacturer, own‑brander, importer, or (failing identification) a supplier.
  • Gather evidence of defect: product samples, instructions, packaging, advertising, compliance certificates, expert reports.
  • Prove causation: medical records, property repair reports, timelines showing before/after condition.
  • Check damage eligibility: death, injury, or qualifying property damage above £275 and used mainly for private purposes.
  • Diary limitation dates: three years from date of knowledge and a hard ten‑year longstop from when the product was first put into circulation.

• For manufacturers and importers

  • Maintain technical files: design rationale, risk assessments, conformity evidence, test results, and change logs.
  • Control labelling and instructions: clear, prominent warnings; avoid claims you cannot support.
  • Monitor field performance: complaints, near‑misses, incident trends; act promptly on safety signals.
  • Set up traceability: batch and component tracking to support targeted recalls.
  • Train staff and maintain contracts: allocate responsibilities within supply chains and seek indemnities where appropriate.

• For retailers and suppliers

  • Keep robust records of sources and importers; respond promptly to identification requests.
  • Verify claims on packaging (e.g., standards compliance) and ensure accurate shelf‑edge and online descriptions.
  • Have recall and customer communication procedures ready; coordinate with producers and regulators.

• Common cross‑border points

  • If you import into the UK, you may be treated as the producer under the CPA.
  • Selling into the EU engages EU market rules; check local product liability and safety requirements in the destination state.
  • Online marketplaces may complicate identification; keep supplier and importer details current.

• Practical tip

  • Standards and approvals help but are not a shield on their own. Courts will still ask what level of safety ordinary users were entitled to expect in real‑world use.

Summary Checklist

• Product includes goods, components, raw materials, and electricity
• “Defect” = safety below what people are generally entitled to expect (s3)
• Producers include manufacturers, own‑branders, and importers (s2)
• Suppliers can be liable if they fail to identify the producer on request
• Recoverable damage: death, injury, and qualifying private property loss over £275 (s5)
• Exclusions: damage to the product itself and pure economic loss
• Defences: legal compliance, no supply, not in business, defect not present at supply, state‑of‑the‑art, component defence (s4)
• Limitation: three years from date of knowledge; ten‑year longstop from first circulation (LA 1980 s11A)
• Negligence may be pleaded alongside a CPA claim
• Keep records, warnings, and traceability to manage risk and support any defence

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