Core principles of tort - Product liability

Learning Outcomes

After reading this article, you will be able to explain the core principles of product liability in tort, distinguish claims under common law negligence from those under the Consumer Protection Act 1987, identify potential claimants and defendants, define “defect” and “damage” for exam purposes, and critically apply the main defences to both common law and statutory claims. This will enable you to assess fact scenarios and give clear advice in SQE2-style exam situations.

SQE2 Syllabus

For SQE2, you are required to understand product liability from a practical standpoint. Focus your revision in particular on:

• the core legal elements required to establish common law negligence as applied to defective products
• claimants, potential defendants, and the concept of “manufacturer” in product liability claims
• the statutory regime of strict liability under the Consumer Protection Act 1987
• what constitutes a “defect” and “damage” for statutory claims
• available defences under both the common law and Consumer Protection Act
• practical application of legal rules to typical client/factual scenarios.

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.

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.

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.

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.

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.

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.

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.

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.

Key Terms and Concepts

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