PastPaperHero | Product liability - Who is liable under the Act

Learning Outcomes

This article outlines who may be held liable for damage caused by defective products under the Consumer Protection Act 1987 (CPA 1987), detailing the scope of liability for producers, own-branders, importers, and suppliers. It clarifies that component and raw material manufacturers are treated as producers, that persons putting their own name or mark on products are treated as producers (own-branders), and that those importing products into the UK for supply in the course of business are liable as producers. It also explains supplier liability under s 2(3), the joint and several nature of liability where more than one defendant is responsible, and that liability under the Act cannot be excluded.

SQE1 Syllabus

For SQE1, you are required to understand the principles of liability for defective products under the CPA 1987, particularly focusing on who can be held responsible, with a focus on the following syllabus points:

Identifying the different categories of persons potentially liable under the CPA 1987 (producers, own-branders, importers, suppliers).
Understanding the specific definitions and scope of liability for each category, including component and raw material producers.
Applying the rules to determine the liable party or parties in a given factual scenario and appreciating that liability is joint and several where multiple persons are liable.
Recognising the limited circumstances under which a supplier can be held liable under the Act and what constitutes a proper identification response under s 2(3).
Appreciating that liability under the CPA 1987 cannot be excluded or limited and recognising the limited circumstances where a component producer may avoid liability (e.g., where the defect is wholly attributable to compliance with design/instructions for the finished product).

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.

Under the Consumer Protection Act 1987, which of the following is primarily liable for damage caused by a defective component part within a finished product?
1. The supplier of the finished product only.
2. The producer of the component part only.
3. Both the producer of the finished product and the producer of the component part.
4. The importer of the finished product only.
ShopSmart supermarket sells a range of products under its own ‘ShopSmart Essentials’ brand, although these products are manufactured by various other companies. If a ShopSmart Essentials kettle proves defective and causes injury, who is potentially liable under the CPA 1987?
1. The original manufacturer only.
2. ShopSmart only, as the own-brander.
3. Both the original manufacturer and ShopSmart.
4. Neither, as ShopSmart did not manufacture the kettle.
In which circumstance might a retailer (supplier) be held liable under the CPA 1987 for damage caused by a defective product they sold?
1. If the retailer assembled the product incorrectly.
2. If the retailer cannot identify the producer or importer of the product upon request by the injured party within a reasonable time.
3. If the retailer advertised the product heavily.
4. A retailer can never be liable under the CPA 1987.

Introduction

The Consumer Protection Act 1987 (CPA 1987) establishes a regime of strict liability for damage caused by defective products. This means a claimant does not need to prove fault (negligence) on the part of the defendant. Instead, liability arises simply from the fact that a product was defective and caused damage. The Act defines “product” broadly to include goods and electricity, and covers components and raw materials comprised in a finished product. Damage includes personal injury (without limit) and loss or damage to property intended and used mainly for private use, provided the property loss exceeds £275; damage to business property and the cost of repairing or replacing the defective product itself are outside the scope of the Act.

A key aspect of applying the CPA 1987 in practice, and for the SQE1 exam, is identifying who can be held legally responsible for such damage. The Act specifies several categories of persons who may be liable. The liability of these persons is joint and several: if more than one person is responsible, the claimant may claim 100% of the recoverable loss from any one of them. Liability under the CPA 1987 cannot be excluded or limited; contractual or notice-based attempts to restrict liability for death or personal injury or other damage covered by the Act are of no effect.

Liable Parties under the CPA 1987

Section 2(2) CPA 1987 identifies the primary categories of persons who can be held strictly liable for damage caused wholly or partly by a defect in a product. Section 2(3) CPA 1987 adds suppliers in limited circumstances.

Producers

The producer is the principal party liable under the Act. Section 1(2) CPA 1987 defines 'producer' broadly.

Key Term: Producer
Under s 1(2) CPA 1987, this includes: (a) the manufacturer of a product; (b) the winner or abstractor of any substance (e.g., mining or extraction of minerals, gases, oils); (c) the person who carried out an industrial or other process affecting the essential characteristics of a product (e.g., pasteurising milk, sterilising blood products, refining chemicals, heat-treating metals).

Liability extends to manufacturers of finished products, as well as producers of raw materials or component parts incorporated into a finished product. A producer of packaging, labels or instructions that form part of the product may also be liable if a defect in those components renders the product unsafe. Electricity supplied for use counts as a product: where a defect in the supply renders it unsafe and causes damage, the relevant supplier is treated as a producer.

In practical terms, the category of producer captures those whose activities create or contribute to the product’s essential characteristics. That includes:

Finished product manufacturers (e.g., appliance makers).
Component manufacturers (e.g., airbag inflators within a car).
Raw material producers (e.g., contaminated flour used in biscuits, sterilised blood used in medical products).
Industrial processors altering a product’s essential characteristics (e.g., pasteurisation, chemical refining).
Persons applying instructions or warnings where those warnings form part of the product get-up and render it unsafe if defective.

The breadth of this definition ensures that consumers harmed by defects arising anywhere in the production chain have recourse against the parties responsible for making the product unsafe. Where a component is defective, both the component manufacturer and the finished product manufacturer may be liable. There is a limited statutory defence for component producers where the defect is wholly attributable to the design of the finished product or compliance with instructions given by the finished product manufacturer (see s 4(1)(f)); however, this operates as a defence to liability rather than removing the component producer from the “producer” category at the outset.

Worked Example 1.1

A car manufacturer, AutoCorp Ltd, installs airbags manufactured by SafeAir Ltd into its vehicles. A defect in an airbag causes it to deploy unexpectedly, injuring the driver. Who is potentially liable under the CPA 1987?

Answer:
Both AutoCorp Ltd (as the producer of the finished product, the car) and SafeAir Ltd (as the producer of the defective component part, the airbag) are potentially liable under s 2(2)(a) CPA 1987. The claimant can choose to sue either or both.

In addition to components, producers may include businesses whose industrial processing confers the product’s essential features. For example, a dairy undertaking pasteurisation may be a producer if a defect in the pasteurisation process renders milk unsafe and causes illness. Equally, a chemical company refining raw inputs that later form part of a consumer product is a producer in respect of those refined substances.

Worked Example 1.2

BakeRight Ltd manufactures biscuits using flour supplied by GrainCo. GrainCo’s flour is contaminated with a toxic substance due to an error in its milling process. Consumers suffer illness after eating the biscuits. Who is potentially liable?

Answer:
GrainCo is liable as a producer of a raw material comprised in the finished product, and BakeRight Ltd is liable as the producer of the finished biscuits. Both fall within s 2(2)(a) CPA 1987 and can be sued jointly or separately. Liability is joint and several, allowing full recovery from either party.

Own-Branders

Liability also attaches to any person who, by putting their name or trademark on the product, holds themselves out as the producer (s 2(2)(b) CPA 1987). These are often referred to as 'own-branders'.

Key Term: Own-brander
A person who puts their name or mark on a product, thereby representing themselves as its producer, even if they did not manufacture it (s 2(2)(b) CPA 1987).

This commonly applies to retailers, like supermarkets, that sell products under their own brand name, even though the products are manufactured by another company. The rationale is straightforward: own-branders represent to the public that the product is theirs, and the Act treats them accordingly to ensure an accessible defendant within the jurisdiction. Putting “Made for [Brand]” or “Distributed by [Brand]” on a product, or using a trade mark prominently alongside product get-up, typically suffices to hold the person out as the producer. Attempts to disclaim responsibility through notices or contract terms are of no effect under the Act.

Own-branders sit alongside manufacturers and may both be liable for the same defect. This gives claimants flexibility to pursue the party most readily accessible and ensures there is a responsible party in the UK even if the manufacturer is overseas.

Worked Example 1.3

QuickMart sells a toaster under its 'QuickMart Home' brand. The toaster is manufactured by ElectroGadgets Inc. The toaster malfunctions due to a defect and causes a fire, damaging the consumer's kitchen. Who is potentially liable under the CPA 1987?

Answer:
Both ElectroGadgets Inc. (as the producer) and QuickMart (as the own-brander under s 2(2)(b) CPA 1987) are potentially liable.

Importers

Persons who import products into the UK from outside the UK in the course of their business are also treated as producers and can be held liable under the Act (s 2(2)(c) CPA 1987). Following changes associated with the UK’s exit from the EU, the import limb applies to importing into the United Kingdom (not the EU).

Key Term: Importer
A person who, in the course of business, imports a product into the UK from outside the UK to supply it to another (s 2(2)(c) CPA 1987).

This ensures that consumers injured by defective imported goods have recourse against a party within the UK. The importer need not manufacture or own-brand the product; bringing it into the UK for supply in the course of business suffices. The “supply” concept is broad, covering sale, hire, leasing and other forms of transfer. Logistics and marketplace arrangements should be considered carefully: the entity that brings the product across the UK border for supply in the course of business is liable as the importer, even if a separate marketplace platform also facilitates the sale.

Worked Example 1.4

An online marketplace lists hair straighteners from a non-UK seller. UKCo Imports Ltd purchases the straighteners overseas and imports them into the UK, supplying them to UK retailers. A defect causes burns. Who is potentially liable?

Answer:
UKCo Imports Ltd is liable as an importer into the UK (s 2(2)(c)). The overseas manufacturer is a producer, and if a UK retailer sells the goods under its own brand, it may also be liable as an own-brander. The online marketplace is a supplier; unless it physically imports or holds itself out as producer, it is not a producer under the Act.

Where both a manufacturer abroad and a UK importer exist, the claimant may sue either or both. Importer liability is especially significant in consumer e-commerce: even if the manufacturer is outside the jurisdiction, the UK importer provides a reachable defendant within the UK.

Suppliers

Generally, suppliers (such as retailers or distributors) who did not produce, own-brand, or import the defective product are not liable under the CPA 1987's strict liability regime. However, s 2(3) CPA 1987 provides a critical exception.

Key Term: Supplier
Any person who supplied the product (e.g., retailer, wholesaler, distributor). Liability under the CPA 1987 is limited to specific circumstances defined in s 2(3).

A supplier can be held liable if:

The person suffering damage requests the supplier to identify the producer, own-brander, or importer (or the person who supplied the product to that supplier).
This request is made within a reasonable period after the damage occurs and at a time when it is not reasonably practicable for the claimant to identify that person themselves.
The supplier fails, within a reasonable period after the request, to identify that person.

In practice:

The request should be sufficiently precise to allow the supplier to understand the identification sought (e.g., manufacturer name and address, or UK importer).
A “reasonable period” is fact-sensitive, but suppliers should act promptly. Keeping adequate records of supply chains (including invoices showing the identity of the upstream supplier/importer/manufacturer) is prudent.
A supplier may discharge the duty by identifying its own supplier if it cannot identify the manufacturer or importer; this allows the claimant to progress to someone higher in the chain. If there are multiple upstream sources, identifying any person fitting s 2(2) suffices.
If the supplier properly identifies in time, strict liability under s 2(3) does not attach to the supplier.

Second‑hand and charity shop suppliers are generally in the same position: unless they are producers, own‑branders or importers, they are not liable under the Act, but they must comply with s 2(3) when appropriately requested.

Where more than one person is liable (e.g., producer and own‑brander), liability is joint and several. This means the claimant may recover the entirety of their loss from any responsible person, leaving contribution issues to be resolved between defendants separately.

Revision Tip

Remember the hierarchy: primary liability rests with the producer/own-brander/importer. Supplier liability under s 2(3) is secondary and conditional on the supplier's failure to identify those higher up the supply chain upon request. Where multiple persons are liable, liability is joint and several, allowing claimants to recover in full from any one responsible person.

Worked Example 1.5

Sarah buys a hairdryer from a local electrical shop, 'Sparky's'. The hairdryer explodes during use, causing burns. Sarah doesn't know who manufactured or imported it. She asks Sparky's owner to identify the producer. The owner refuses, saying it's not their responsibility. Can Sarah hold Sparky's liable under the CPA 1987?

Answer:
Yes, potentially. Sparky's is the supplier. If Sarah made the request within a reasonable time after the injury, it was not reasonably practicable for her to identify the producer herself, and Sparky's failed to identify the producer (or their own supplier) within a reasonable period, Sparky's could be held liable under s 2(3) CPA 1987.

Worked Example 1.6

A consumer is injured by a defective second‑hand kettle bought from a charity shop. The consumer requests identification. The shop promptly provides the name and address of the wholesaler who supplied the kettle and the label showing the importer’s UK address. Is the charity shop liable under the CPA?

Answer:
No. The charity shop is a supplier and, having responded within a reasonable period by identifying the upstream supplier/importer, it avoids strict liability under s 2(3). The consumer may pursue the importer or producer.

Multiple Responsible Persons and Joint and Several Liability

Where a defect arises in a component incorporated into a finished product, or where an own‑brander and importer are involved, more than one person may be liable at the same time. Under s 2(5), liability is joint and several. Joint and several liability means:

The claimant may pursue any responsible person for 100% of the recoverable damage.
Responsible persons may seek contributions between themselves under ordinary principles, but this does not affect the claimant’s ability to recover in full from one defendant.

This feature of the CPA 1987 is designed to ensure consumers are fully compensated without needing to untangle complex supply chains.

Exam Warning

Be careful not to confuse the supplier's potential liability under s 2(3) CPA 1987 with liability in common law negligence or contract. A supplier might be liable in negligence if they were at fault (e.g., improperly stored the product) or in contract to the direct purchaser (e.g., for breach of implied terms as to quality), but CPA 1987 liability for suppliers is much narrower and depends only on the failure to identify the producer/importer/own-brander when requested. Also remember that liability under the CPA 1987 cannot be excluded or limited: notices or contractual terms seeking to avoid liability will not prevent claims under the Act.

Key Point Checklist

This article has covered the following key knowledge points:

The CPA 1987 imposes strict liability, meaning fault does not need to be proven.
Multiple parties in the supply chain can potentially be liable for damage caused by a defective product.
The primary liable parties under s 2(2) CPA 1987 are the producer (manufacturer, component maker, raw material producer, industrial processor), the own-brander, and the importer into the UK.
Suppliers (e.g., retailers) are generally not liable under the CPA 1987 strict liability regime.
A supplier can become liable under s 2(3) CPA 1987 only if they fail to identify the producer/own-brander/importer (or their own supplier) upon a reasonable request from the injured party and within a reasonable time.
Liability under the CPA 1987 is joint and several where more than one person is liable; claimants can recover 100% from any responsible person.
Liability under the CPA 1987 cannot be excluded or limited by contract terms or notices.
A claimant can potentially sue multiple liable parties (eg, producer and own-brander) for the same damage.

Key Terms and Concepts

Producer
Own-brander
Importer
Supplier

Product liability - Who is liable under the Act