Core principles of tort - Product liability

Learning Outcomes

This article covers core principles of product liability under common law negligence and the Consumer Protection Act 1987, including:

• The core principles of product liability in tort at common law and under the CPA 1987
• How to distinguish negligence claims from CPA claims and choose between them in light of recoverable losses
• Identification of potential claimants and defendants, and who counts as a “manufacturer” (including repairers, installers and assemblers)
• The meaning of “defect” and “damage” and how those concepts are applied in exams and practice
• Main defences to both negligence and CPA claims, including contributory negligence, consent, statutory compliance, and development risks
• The role of intermediate examination and when it breaks the chain of causation
• Limitation rules for negligence and CPA claims, including the CPA 10‑year long‑stop
• The effect of contributory negligence and exclusion clauses, subject to UCTA 1977 and CRA 2015 controls
• Practical assessment of fact scenarios and clear SQE2‑style client advice

SQE2 Syllabus

For SQE2, you are required to understand product liability from a practical standpoint, with a focus on the following syllabus points:

• understanding the core legal elements required to establish common law negligence as applied to defective products
• identifying claimants, potential defendants, and the concept of “manufacturer” in product liability claims
• explaining the statutory regime of strict liability under the Consumer Protection Act 1987
• understanding what constitutes a “defect” and “damage” for statutory claims
• outlining available defences under both the common law and Consumer Protection Act
• applying legal rules to typical client/factual scenarios
• assessing how intermediate examination affects liability at common law
• identifying producers, own‑branders, importers into the UK, and when suppliers are caught if they fail to identify the source
• evaluating limits on recoverable losses (pure economic loss, business property exclusion, £275 threshold) and relevant limitation periods
• analysing interaction with exclusion clauses and notices under UCTA 1977 and CRA 2015

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. Who may be liable at common law for injury caused by a defective product?
2. What is strict liability under the Consumer Protection Act 1987, and when does it apply?
3. Which type of damage cannot be recovered under the Consumer Protection Act 1987?
4. What defences are open to a producer facing a statutory product liability claim?

Introduction

Product liability covers the legal rules allowing individuals to claim compensation for harm caused by defective products. It encompasses both common law negligence and a statutory strict liability regime under the Consumer Protection Act 1987. For SQE2, you must know how to advise a client injured by a faulty product, considering who to sue (manufacturer, retailer, etc.), what elements must be proven, and which defences could defeat or limit a claim.

In practice, many product cases can be framed in both negligence and under the CPA. The choice matters because the CPA removes the need to prove fault but restricts recoverable heads of loss (e.g., excludes the product’s own value and business property), and carries a 10‑year long‑stop. Contract claims may also sit alongside tort where there is privity, especially to recover the value of the defective product itself. Sound advice requires weighing evidential issues (e.g., whether negligence can be inferred from the circumstances), heads of loss, identification of defendants in the supply chain, and limitation.

Product liability at common law

Under common law, a duty of care is owed by the manufacturer of a product to the end user or consumer. Other parties may also owe duties in particular circumstances.

Key Term: manufacturer
A person or company that produces, repairs, assembles, installs, or labels a product, who may owe a duty of care in tort to the product’s user.

Key Term: defective product
A product with a flaw arising in manufacture or design, or inadequate warnings or instructions, making it unsafe for its intended use.

To succeed in a negligence claim, the claimant must prove:

1. A duty of care owed by the defendant to the claimant as a foreseeable user of the product;
2. A breach of duty, i.e., falling below the standard of a reasonable manufacturer (for example, by failing to inspect, warn, or design appropriately);
3. Causation—that the breach caused the injury;
4. Loss (personal injury or damage to property other than the defective product itself).

A retailer or supplier who merely passes along a sealed product may generally not be liable unless they ought to have inspected it or had actual knowledge of defects.

The “narrow rule” from Donoghue v Stevenson underpins common law product liability. It extends beyond literal manufacturers to anyone who works on or has control over the safety of the finished item before it reaches the user. Installers, repairers and assemblers can therefore be liable if their acts or omissions introduce the danger. Conversely, where a reasonable and expected intermediate examination should reveal the defect before the product reaches the user, liability may shift. If the intermediary negligently fails to inspect when inspection is expected, the chain of causation against the original manufacturer may be broken and liability may fall on the intermediary.

Proof of breach in product cases often relies on circumstantial evidence. If a product fails in a way that ordinarily would not occur without negligence, and the claimant can exclude other plausible causes (e.g., misuse, later damage), a court may infer negligence from the facts. Equally, prolonged use between supply and failure, or intervening handling that could have introduced the defect, may undermine such inference. Evidence of inadequate or missing warnings can also establish breach where risks required special instructions to avoid harm.

Causation issues commonly arise where the product has passed through several hands, has been modified, or the claimant knew of the malfunction. If the user persists with a product while aware of a malfunction and that decision is the real cause of the harm, this may defeat causation or lead to a reduction for contributory negligence. However, foreseeable and ordinary uses remain within the scope of the duty even if a claimant uses the product in a mildly unusual but not unreasonable way.

Loss recoverable at common law includes personal injury and damage to property other than the product itself. The cost of repairing or replacing the defective product is treated as pure economic loss in tort and is generally not recoverable. Where a product damages “other property” (for example, a defective oven causes fire damage to a kitchen), those consequential losses are recoverable if caused by the negligence.

Practical points:

• Identify any expected intermediate checks (e.g., pre‑delivery inspections) and whether they were undertaken.
• Consider whether a retailer assumed a duty by undertaking to inspect, or knew of or should have discovered the defect.
• Evaluate instructions and warnings. A product may be safe if used as directed; inadequate directions can make it unsafe.

Statutory product liability: the Consumer Protection Act 1987

The Consumer Protection Act 1987 (“CPA 1987”) creates strict liability for damage caused by defective products. The claimant does not need to prove fault, only that:

• they have suffered “damage” caused by a “defect” in a “product”;
• the defendant was a producer, own-brander, importer, or, in rare cases, supplier of the product.

Key Term: strict liability
Liability that attaches without the need to prove fault or negligence, dependent solely on establishing causal connection and statutory triggers.

Key Term: defect (CPA 1987)
A defect exists if the safety of the product is not such as persons generally are entitled to expect, considering its presentation, use, and timing of supply.

Key Term: damage (CPA 1987)
Death, personal injury, or property damage (to private property exceeding £275 in value); business property and the product itself are not covered.

Key concepts under the CPA:

• Product is defined widely and includes goods, components and raw materials, and electricity. A component embedded in a finished product is itself a product.
• Defect focuses on safety expectations in all the circumstances, including presentation (get‑up, warnings, instructions), what use is expected, and when the product was supplied. Compliance with good industry practice is relevant but not decisive; a product can be defective despite general compliance if safety expectations are not met.
• Damage includes any disease or any impairment of physical or mental condition (statutory definition of personal injury). Property damage is covered only where the property is of a type ordinarily intended for private use, occupation or consumption and was used by the claimant mainly for private purposes, and the total property damage exceeds £275. The value of the defective product itself is irrecoverable.
• Potential defendants include:
  • producers (manufacturers of finished goods or components)
  • own‑branders (those who put their name or mark on a product, holding themselves out as producer)
  • importers into the UK (those who bring products into the UK market from outside the UK)
  • suppliers in limited circumstances where, on request, they fail to identify the producer or prior supplier within a reasonable time.

Liability is joint and several. Claimants often sue several links in the chain (e.g., producer and importer), and apportionment is a matter between defendants.

Causation is still required: the defect must cause the damage. Misuse can break the causal chain or amount to contributory negligence. Time matters: the assessment of safety is at the time of supply; later deterioration through fair wear and tear does not generally indicate a defect.

Limitation:

• Primary limitation is generally three years from the date of damage or (if later) the claimant’s date of knowledge of the relevant facts.
• There is an absolute 10‑year “long‑stop” from the date the defendant put the product into circulation; after this, no claim lies against that defendant under the CPA.

The CPA covers manufacturers, anyone putting their name on the product, importers into the UK, and, in certain cases, suppliers who fail to identify the source of the product. Liability attaches even if all possible care was taken.

Illustrations of “defect”:

• A hot liquid is not defective simply because it can scald; consumers expect coffee to be hot. But lacking a necessary warning (where temperature exceeds ordinary expectations or packaging presents an additional spill hazard) may point towards defect.
• A medical product with a known but undetectable risk at the time of supply may still be defective if persons are entitled to expect the absence of that risk, and if adequate measures (including warnings) were not adopted.

Worked Example 1.1

A consumer suffers a burn from a new toaster, which sets fire to their kitchen worktop and is itself destroyed. Can the consumer recover for all losses under a claim in negligence and under the CPA 1987?

Answer:
Under negligence, the consumer may recover for injury and for damage to the worktop if they can prove fault against the manufacturer. Recovery for the toaster itself is not possible—it is pure economic loss. Under the CPA, assuming strict liability applies, injury and damage to private property (if the worktop cost exceeds £275) are recoverable, but not the value of the toaster or any loss relating to business property.

Defences to product liability claims

At common law, the usual defences to negligence (such as contributory negligence, consent, and exclusion of liability—subject to statutory controls) are available.

Under the CPA 1987, statutory defences include:

• compliance with legal requirements (defect unavoidable due to statutory obligations)
• the product was not supplied in the course of business
• the defect did not exist at the time of supply
• the defendant did not supply the product to the claimant (e.g., stolen goods)
• scientific knowledge at the time could not have revealed the defect (“development risks”)
• the defect was due to compliance with instructions given by the producer of the finished product.

The CPA also preserves the partial defence of contributory negligence, and expressly prohibits exclusion of liability under the Act.

Development risks and known hazards:

• The “state of the art” defence is narrowly applied. A producer must show that, at the time of circulation, even the most advanced accessible scientific and technical knowledge could not have revealed the defect.
• Where a risk is known but cannot be eliminated or detected, courts focus on safety expectations. If the public is entitled to expect product batches to be free from that risk (for example, blood products free from a known virus), the defence may fail despite the producer’s inability to test for it at the time.

Exclusion and warnings:

• Under UCTA 1977 and CRA 2015, exclusion of negligence liability for death or personal injury is void in business and consumer contexts respectively; other negligence losses can only be excluded if reasonable (UCTA) or fair (CRA). Under the CPA, exclusion of liability is prohibited.

Worked Example 1.2

A patient contracts hepatitis C from a blood transfusion. At the time, testing technology could not detect the virus in blood. Is the producer of the blood product liable under the CPA 1987?

Answer:
The producer may rely on the “development risks” defence, claiming the state of scientific knowledge did not permit detection. However, if the risk was known but unavoidable, the defence may fail. Courts are strict in assessing this defence.

Worked Example 1.3

A claimant buys a kettle from a small shop. The kettle explodes. The shop is asked to identify the source of the product. The shop ignores the request. The manufacturer’s identity is unknown. Can the claimant sue the shop under the CPA?

Answer:
Yes. A supplier who, on request, fails to identify the producer (or the person who supplied it to the supplier) within a reasonable time can be treated as a defendant under the CPA. The claimant can recover covered damage (injury and qualifying private property damage) from the shop, subject to defences and thresholds.

Worked Example 1.4

A self‑employed photographer uses a defective battery pack at a wedding shoot. It explodes, damaging the camera and a domestic sideboard at the venue. The property damage to the sideboard is £200. Can the photographer rely on the CPA?

Answer:
Under the CPA, damage to business property (the photographer’s camera) is excluded. Damage to private property is only covered if the total property damage exceeds £275. The sideboard damage does not meet the threshold, so there is no recoverable property damage under the CPA. If injured, personal injury would be recoverable. The photographer may consider a negligence claim (fault‑based) or a contract claim against the seller for the camera and battery.

Worked Example 1.5

A homeowner hires a contractor to install a domestic boiler. The installer negligently omits a safety valve supplied by the manufacturer. The boiler later explodes, injuring the homeowner and damaging the kitchen. Who is liable?

Answer:
In negligence, the installer (as an “installer/assembler”) owes a duty of care and has breached it; they are likely liable for injury and consequential property damage. A CPA claim could also be considered against the producer if a component was defective; however, where the defect stems from installation error rather than product defect, the CPA may not bite.

Defences to product liability claims (common law expanded)

Consent and contributory negligence often arise where the user knew of a malfunction or used a product contrary to clear warnings. A complete defence of consent requires full knowledge and voluntary acceptance of the specific risk. More commonly, courts reduce damages for contributory negligence where the claimant failed to take reasonable care for their own safety (e.g., ignoring explicit instructions, disabling safety guards, or continuing to use a product that was obviously defective). Illegality rarely features in product cases but may arise where injury occurs during criminal use of stolen goods; at CPA level, the defence that the defendant did not supply the product (e.g., stolen goods) is more significant.

Exclusion clauses and notices can, in business‑to‑business and trader‑to‑consumer contexts, restrict liability for non‑injury loss only if the statutory reasonableness/fairness tests are met. They cannot exclude liability for death or personal injury caused by negligence. Under the CPA, exclusion is not permitted at all.

Additional practical and evidential guidance

• Identifying the correct defendant(s): Start with the product label/markings for an own‑brander, and documentation to identify the producer or importer into the UK. If these cannot be found, a supplier can be put on notice to identify its source. Failure to do so can expose the supplier to CPA liability.
• Evidencing defect and causation: Retain the product and any damaged items; secure expert evidence promptly before spoliation. Evidence of similar incidents can be persuasive in establishing defect. Consider whether damage could be explained by misuse, poor maintenance, or third‑party alterations.
• Limitation: Diary both the three‑year primary limitation and the 10‑year long‑stop under the CPA. For negligence, limitation is generally three years for personal injury and six years for property damage.
• Contract claims: Where privity exists, consider an implied term claim (satisfactory quality/fitness) to recover the product’s value and related losses. This can proceed alongside or instead of tort.

Revision Tip

Pay close attention to whether the loss is personal injury, private property damage, business property damage, or pure economic loss—this will determine which losses can be claimed and under what regime. When property damage is alleged under the CPA, check that the property is ordinarily intended for private use and that the total damage exceeds £275.

Exam Warning

A common SQE2 trap is confusing liability for the defective product itself (pure economic loss) with liability for injury or other property damage. Recovery for the value of the defective product is generally not possible in tort.

Summary

Table: Comparing common law negligence and CPA 1987 statutory liability

Key Point Checklist

This article has covered the following key knowledge points:

• Product liability arises from both common law negligence and the statutory Consumer Protection Act 1987.
• In negligence, liability depends on fault—duty, breach, causation, and recoverable loss.
• Under the CPA 1987, liability is strict: injury or covered property damage caused by a defect yields liability without needing to prove fault.
• Defences under the CPA 1987 include development risks, statutory compliance, and others specified by the Act.
• Damages to the product itself and business property are generally not recoverable under the CPA.
• Exclusion of liability is heavily restricted or prohibited under both regimes for personal injury.
• Identify who may be liable, what must be proved, and the correct legal regime for any given claim scenario.
• Intermediate examination can shift or break liability at common law; suppliers may be liable under the CPA if they fail to identify the source.
• Limitation differs: note the CPA’s three‑year primary limitation and the 10‑year long‑stop.

Key Terms and Concepts

• manufacturer
• defective product
• strict liability
• defect (CPA 1987)
• damage (CPA 1987)