Product liability - Definitions of 'defect' and 'product'

Learning Outcomes

After studying this article, you will be able to explain and apply the legal definitions of 'defect' and 'product' under the Consumer Protection Act 1987 (CPA 1987). You will understand the consumer expectation test, identify what counts as a product, and recognise how these definitions affect liability and defences in product liability claims. You will also be able to distinguish between statutory and common law approaches, and apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the definitions of 'defect' and 'product' as they apply to product liability. Focus your revision on:

• the statutory definition of 'product' under the CPA 1987, including goods, electricity, components, and raw materials
• the meaning of 'defect' and the consumer expectation test under the CPA 1987
• how courts assess safety and defectiveness, including relevant factors such as warnings and intended use
• the scope of potential defendants and the relevance of statutory defences
• the distinction between statutory strict liability and common law negligence in product liability claims

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 statutory definition of a 'product' under the Consumer Protection Act 1987?
2. How does the CPA 1987 define a 'defect' in a product?
3. What factors are considered when determining whether a product is defective?
4. Can software be a 'product' for the purposes of the CPA 1987?
5. What is the consumer expectation test, and how is it applied?
6. Name one statutory defence available to a producer under the CPA 1987.

Introduction

Product liability law protects consumers from harm caused by unsafe products. For SQE1, you must know how the Consumer Protection Act 1987 (CPA 1987) defines both 'product' and 'defect', as these are central to establishing liability. This article explains these definitions, the consumer expectation test, and how courts determine whether a product is defective. It also covers who can be liable, relevant statutory defences, and the relationship between statutory and common law approaches.

Definition of 'Product' under the CPA 1987

The CPA 1987 sets out a wide definition of 'product'. Understanding what counts as a product is essential for identifying who may be liable in a product liability claim.

Key Term: product
For the purposes of the CPA 1987, a product is any goods or electricity, and includes products comprised in other products, such as component parts or raw materials.

This definition covers:

• all tangible movable items (physical goods)
• electricity
• component parts and raw materials used in finished products

Software, when embedded in a physical product (such as in a car or appliance), may also be treated as part of the product for liability purposes.

Who can be liable?

Liability under the CPA 1987 is not limited to the final manufacturer. It can extend to:

• producers (manufacturers of finished products, components, or raw materials)
• own-branders (those who put their name or trademark on a product)
• importers (those importing products into the UK from outside the UK)
• certain suppliers (where the producer cannot be identified)

Definition of 'Defect' and the Consumer Expectation Test

The CPA 1987 uses an objective test to determine whether a product is defective.

Key Term: defect
A defect exists if the safety of the product is not such as persons generally are entitled to expect, taking all circumstances into account.

This is known as the consumer expectation test.

Factors considered when assessing defectiveness

When deciding if a product is defective, the court will consider:

• the way the product is presented (including packaging, instructions, and warnings)
• what might reasonably be expected to be done with the product (including foreseeable misuse)
• the time when the product was supplied (state of scientific and technical knowledge at that time)

Key Term: consumer expectation test
The legal test for defectiveness under the CPA 1987: whether the product is as safe as persons generally are entitled to expect, considering all relevant circumstances.

If a product is dangerous beyond what an ordinary consumer would expect, it is likely to be found defective—even if the producer took all possible care.

Warnings and instructions

Clear warnings and instructions can reduce the likelihood of a product being found defective, but will not always be enough if the product is inherently unsafe.

Software and digital products

Software embedded in a physical product (such as a car's operating system) is generally treated as part of the product. Standalone software may not be covered unless it causes physical damage or injury.

Statutory Defences under the CPA 1987

The CPA 1987 provides several complete defences for producers facing a product liability claim.

Key Term: development risks defence
A statutory defence under the CPA 1987: the producer is not liable if the state of scientific and technical knowledge at the time was not such that a defect could be discovered.

Other statutory defences include:

• the defect did not exist at the time the product was supplied
• the product was not supplied in the course of business
• the defect resulted from compliance with legal requirements
• the defendant did not supply the product

Contributory negligence by the claimant is not a complete defence, but may reduce damages.

Worked Example 1.1

A consumer buys a new electric kettle. The kettle's handle breaks during normal use, causing burns. The manufacturer argues that the defect was not discoverable at the time due to limitations in testing technology. Can the manufacturer rely on the development risks defence?

Answer: The manufacturer may only rely on the development risks defence if they can prove that, at the time of supply, the state of scientific and technical knowledge was not such that the defect could be discovered. If the risk was known or discoverable, the defence will fail.

Worked Example 1.2

A pharmaceutical company sells a new medicine. Years later, it is discovered that the medicine causes a rare side effect not previously known. The company is sued by a patient who suffered harm. Can the company avoid liability?

Answer: If the side effect could not have been discovered using the best scientific knowledge available at the time of supply, the company may rely on the development risks defence. If the risk was known or foreseeable, the defence will not apply.

Common Law Negligence and Product Liability

In addition to the CPA 1987, claimants may bring product liability claims in negligence.

Key Term: duty of care (product liability)
At common law, a manufacturer owes a duty of care to the ultimate consumer to ensure that products are safe when used as intended.

To succeed in negligence, the claimant must prove:

• a duty of care was owed (as established in Donoghue v Stevenson)
• the defendant breached that duty by failing to take reasonable care
• the breach caused the claimant's injury or damage
• the type of damage was reasonably foreseeable

Unlike the CPA 1987, negligence requires proof of fault.

Exam Warning

For SQE1, remember that under the CPA 1987, the claimant does not need to prove negligence—only that the product was defective and caused damage. Under common law, proof of negligence is required.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The CPA 1987 defines 'product' broadly to include goods, electricity, components, and raw materials.
• A 'defect' exists if the product is not as safe as persons generally are entitled to expect (consumer expectation test).
• The court considers presentation, instructions, intended use, and timing when assessing defectiveness.
• Statutory defences include the development risks defence and compliance with legal requirements.
• Under the CPA 1987, liability is strict—no need to prove negligence.
• At common law, claimants must prove fault (negligence) by the producer or supplier.

Key Terms and Concepts

• product
• defect
• consumer expectation test
• development risks defence
• duty of care (product liability)