Product liability - Definitions of 'defect' and 'product

Learning Outcomes

This article explains the scope and structure of statutory product liability under the Consumer Protection Act 1987 (CPA 1987), focusing on the exam-relevant definitions of 'product' and 'defect'. It explains how the wide statutory concept of a product extends to goods, electricity, components, raw materials and embedded software, and how different actors in the supply chain—manufacturers, own‑branders, importers and certain suppliers—may become strictly liable. It examines the consumer expectation test, the factors the courts use to assess safety and defectiveness (including warnings, foreseeable misuse and timing), and how these differ from contractual quality standards. It analyses recoverable damage, including personal injury and qualifying private property damage above £275, and the exclusion of damage to the product itself and pure economic loss. It reviews the statutory defences, particularly the development risks and component compliance defences, and the evidential burden on defendants. It also outlines limitation rules, the supplier identification mechanism, and the key contrasts between CPA strict liability and common law negligence in product liability claims.

SQE1 Syllabus

For SQE1, you are required to understand the definitions of 'defect' and 'product' as they apply to product liability, with a focus on the following syllabus points:

• 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
• recoverable damage under the CPA 1987, including personal injury and private property damage above £275 (but not damage to the product itself)
• time limits: the three‑year limitation period from knowledge and the 10‑year longstop from first circulation
• supplier liability where the producer cannot be identified and the supplier fails to identify them within a reasonable time
• the non‑excludability of CPA liability (statutory prohibition on contractual exclusion or limitation)

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. In addition, you will learn the scope of recoverable damage, the ways in which suppliers can become liable if they fail to identify the producer, and the limitation rules that control how long claims may be brought.

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

In practice, “goods” are interpreted broadly: substances, growing crops, things comprised in land and vehicles (including ships and aircraft) can fall within “goods” for CPA purposes. Medical devices, pharmaceuticals, food and drink, domestic appliances, tools, toys and packaging are typical examples.

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. Standalone software and pure data are less clear: unless the software is embodied in a tangible medium and causes physical injury or damage to property, CPA coverage may not be engaged. However, a software defect embedded in a device’s firmware that causes a machine to malfunction and injure a user would be assessed in the same way as a mechanical defect.

It is also critical to distinguish between finished products and components. A component manufacturer can be liable if the component itself is defective and causes damage. Conversely, where a component is non‑defective but the finished product is defectively designed or assembled, the component manufacturer may have a defence (see statutory defences below).

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)

A “producer” includes anyone who manufactures a product or processes raw materials/ingredients, as well as anyone who presents themselves as the producer by applying their name, brand or trademark. Importers into the UK of products from outside the UK also fall within the statutory definition.

Suppliers may become liable if the claimant asks them to identify the producer or their own supplier and they fail to do so within a reasonable time. This creates an important practical duty: suppliers who keep accurate records and respond promptly to identification requests can avoid becoming defendants under the CPA.

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.

The test asks whether the product, considered in its ordinary context, is as safe as persons generally are entitled to expect. It focuses on the product’s safety (not quality or fitness for purpose) and is assessed at the time the product was put into circulation.

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. CPA liability is strict: a claimant need not prove negligence.

“Presentation” includes all labelling, instructions, marketing claims and warnings. Clear, accurate warnings can influence the safety expectations of a reasonably informed consumer, although warnings are not a complete shield. If a core design makes the product inherently unsafe (for example, a domestic kettle with a handle that detaches under normal use), warnings will not prevent a finding of defect.

“Foreseeable use” extends beyond intended use to reasonably foreseeable misuse. A toy designed for toddlers must account for typical child behaviour (chewing, throwing, dropping) in its safety assessment. In contrast, highly unusual or reckless use may fall outside reasonable foreseeability.

“Timing” matters because scientific and technical knowledge evolves. A product judged by the knowledge reasonably accessible at the time of supply may not be defective even if later knowledge reveals a risk that could not previously have been detected. This principle underpins the development risks defence explained below.

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. Well‑drafted instructions should explain safe assembly, safe use, maintenance, and known residual risks. They should be prominently displayed and intelligible to the typical user. Where an obvious danger exists (e.g., the risk of cuts from a sharp knife), a warning is less likely to impact the safety expectation than where a non‑obvious hazard is present (e.g., a chemical risk from a cleaning product in normal use).

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. For example, a medical device with a firmware error that causes dosing miscalculations would be assessed under the CPA; whereas a purely digital application causing only economic loss (e.g., lost data with no physical damage) would typically fall outside CPA scope and be addressed, if at all, under contract or negligence principles.

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.

Worked Example 1.3

A DIY power drill ships with clear instructions and warnings to use the supplied guard. Many users remove the guard for convenience. One user suffers a serious injury while operating the drill without the guard. Is the drill defective?

Answer:
The safety assessment considers foreseeable misuse. If the product’s design makes removal of the guard likely and results in a heightened risk during normal operations, the drill may be defective despite warnings. However, where the guard is easy to use, the warnings are prominent, and the drill is reasonably safe when used as presented, an injury arising from deliberate removal may not indicate defect.

Statutory Defences under the CPA 1987

The CPA 1987 provides several complete defences for producers facing a product liability claim. The burden of proof lies with the defendant to establish a defence.

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
• the defendant produced a component, and the defect is attributable to the design of the finished product or to compliance by the component producer with instructions given by the finished product manufacturer

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

The “no defect at supply” defence applies where, for example, a product leaves the producer’s control in safe condition and the defect is introduced later by a third party’s actions or by misuse. The “legal compliance” defence applies where a product complies with mandatory regulations and the defect arises precisely from that mandated compliance. The “component compliance” defence protects component manufacturers when a defect stems from the assembler’s design decisions or instructions that the component producer reasonably followed.

Damage under the CPA 1987

CPA damages cover:

• personal injury caused by a defective product
• damage to private property (exceeding £275) caused by a defective product

Damage to the product itself is excluded. The property damage must be to property ordinarily intended for private use, occupation or consumption. Business/professional property damage is generally outside CPA scope. Losses purely economic in nature (e.g., the cost of replacing the defective product itself or lost profits unconnected to physical damage) are not recoverable under the CPA; such claims may lie in contract or negligence.

Limitation

Two key time limits apply:

• a three‑year limitation period from the date of damage or the date of knowledge of the damage and the identity of the producer (whichever is later)
• a 10‑year longstop period running from the date the producer first put the product into circulation

Claims brought after the longstop cannot proceed, even if the claimant only discovered the defect late.

Worked Example 1.4

A supplier sells a garden heater that later causes a fire. The claimant asks the supplier to identify the producer within a reasonable time, but the supplier fails to do so. Can the supplier be liable under the CPA?

Answer:
Yes. Where the producer cannot be identified and the supplier fails to identify the producer (or their own supplier) within a reasonable time when requested, the supplier can be treated as a producer and be liable under the CPA.

Worked Example 1.5

A laptop battery explodes, causing burns and damaging a sofa and curtains. The cost of replacing the sofa and curtains totals £400. Can the claimant recover under the CPA, and for what?

Answer:
The claimant may recover for personal injury and private property damage exceeding £275. Damage to the product itself (the laptop/battery) is excluded. Here, the £400 private property damage exceeds the threshold, so the claimant can recover that amount in addition to any personal injury damages.

Worked Example 1.6

A component manufacturer supplies a non‑defective valve to an appliance maker. The finished appliance is unsafe due to the appliance maker’s design. The injured user sues the valve manufacturer. Is the valve manufacturer liable?

Answer:
The component manufacturer may rely on the component compliance defence if the defect is attributable to the design of the finished product or the assembler’s instructions. If the valve itself was non‑defective and the component producer followed instructions reasonably, the defence should succeed.

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. The claimant will often rely on expert evidence to demonstrate that a manufacturer’s design, materials, testing regime or warnings fell below the standard of reasonable care. Negligence claims can also be advanced against repairers, installers and others in the supply chain where they fail to exercise reasonable skill and care.

Negligence may allow recovery for some losses outside the CPA, but all the usual tort rules apply (including causation, remoteness and defences such as contributory negligence). Contractual claims may also be relevant in consumer sales or service contexts, but CPA liability cannot be excluded or limited by contract.

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

CPA damage excludes damage to the product itself and purely economic losses; contract law may address those. The longstop period can bar claims even where damage manifests late, so timing is critical.

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, foreseeable misuse and timing when assessing defectiveness.
• Statutory defences include the development risks defence, “no defect at supply”, legal compliance, component compliance and “defendant did not supply”.
• Under the CPA 1987, liability is strict—no need to prove negligence.
• Suppliers can become liable if they fail to identify the producer within a reasonable time when asked.
• Recoverable CPA damage covers personal injury and private property damage exceeding £275; damage to the product itself is excluded.
• CPA claims are time‑limited by both a three‑year period from knowledge and a 10‑year longstop from first circulation.
• At common law, claimants must prove fault (negligence) by the producer or supplier; negligence may allow recovery for losses outside CPA scope.
• CPA liability cannot be excluded by contract; common law/contract claims are subject to statutory controls (e.g., consumer protection legislation).

Key Terms and Concepts

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