10.2 Product Liability

Quick Answer: A claimant injured by goods can sue in negligence (duty, breach, causation) and, for a defective product under the Consumer Protection Act 1987, in strict liability against the producer, own-brander, or UK importer without proving fault.

Product questions on SQE1 are not a shopping-law afterthought. They sit in FLK1 tort because the usual defendants are manufacturers and distributors, the usual harm is personal injury, and the Consumer Protection Act 1987 (CPA) is a strict-liability statute that still has to be pleaded alongside common-law negligence. This independent OpenExamPrep section keeps the two routes separate. Contract claims under the Consumer Rights Act 2015 (satisfactory quality, fitness for purpose) belong in FLK2 contract/consumer materials; mention them only to explain why a buyer of the goods themselves may not need tort.

Negligence: Donoghue and the consumer

Donoghue v Stevenson [1932] AC 562 established that a manufacturer of products sold in a form that shows they will reach the ultimate consumer in the form in which they left the manufacturer, with no reasonable possibility of intermediate examination, owes a duty to take reasonable care in the preparation of the product. The ginger-beer bottle is the story; the ratio is wider: food, drink, medicines, components, and many consumer goods.

Later cases fill the operational gaps. Grant v Australian Knitting Mills Ltd [1936] AC 85 (sulphite in underwear) shows that the duty is not confined to hidden food and that proof can be inferential. If a reasonable intermediate inspection actually occurred, or ought to have occurred, the manufacturer's duty may be displaced or the chain of causation broken (Griffiths v Arch Engineering Co Ltd [1968] 3 All ER 217). Repairers, assemblers, and installers can owe analogous duties. A retailer who merely sells a sealed branded product often has no negligence duty as manufacturer, but may still be a CPA supplier or a contract defendant.

Breach follows ordinary negligence: design choices, manufacturing hygiene, and failure to warn of non-obvious risks. The standard is reasonable care at the time of manufacture or supply, not hindsight. Causation and remoteness (The Wagon Mound) still apply. Product negligence remains essential where the CPA does not run: damage below the property threshold, damage to the product itself, some business-property losses, defendants outside s.2, or expiry of the CPA long-stop while a negligence claim is still in time on ordinary limitation principles.

CPA 1987: defect, not fault

Part I of the CPA 1987 gives effect in UK law to the product-liability regime that originated in Council Directive 85/374/EEC. After Brexit the statute continues as domestic law; the defendant class in s.2(2)(c) is now the person who imported the product into the United Kingdom in the course of business, not "into the EU". Primary agricultural products are within the regime following the Consumer Protection Act 1987 (Product Liability) (Modification) Order 2000.

A product (s.1(2)) is any goods or electricity and includes a product which is comprised in another product (component or raw material). A defect exists if the safety of the product is not such as persons generally are entitled to expect (s.3(1)). Section 3(2) directs the court to all the circumstances, including:

• the manner in which, and purposes for which, the product has been marketed, and its get-up;
• the use of any mark, instructions, or warnings;
• what might reasonably be expected to be done with or in relation to the product; and
• the time when the product was supplied by its producer to another.

Safety includes the risk of death, personal injury, and damage to property. Later improved products do not, by themselves, prove that earlier products were defective (s.3(2) closing words). A v National Blood Authority [2001] 3 All ER 289 treated infected blood as falling below legitimate safety expectations even though screening could not catch every infection; the known residual risk did not make the public's expectation of uninfected blood unrealistic. Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB) emphasises that s.3 is a statutory safety standard, not a recitation of negligence, but that risk-benefit, avoidability, and warnings can inform what persons generally are entitled to expect of a standard medical product. Tesco Stores Ltd v Pollard [2006] EWCA Civ 393 (dishwasher-powder bottle) shows that child-resistant packaging is judged against the published standard the packaging claimed to meet, not an absolute child-proof guarantee.

The claimant must prove the product, the defect, and that the defect caused the damage. Fault is not an element. Once those facts are proved, the burden shifts to the defendant on the s.4 defences.

Who can be sued, and for what damage

Section 2 lists defendants:

• the producer (manufacturer of a finished product, producer of a raw material, or manufacturer of a component);
• any person who holds themselves out as producer by putting their name, trade mark or other distinguishing mark on the product (own-brander / supermarket own-label);
• the person who imported the product into the United Kingdom in the course of a business;
• a supplier who, when asked by the injured person, fails within a reasonable time to identify the producer, own-brander, or importer (s.2(3)). A shop that promptly names the manufacturer drops out.

Multiple defendants are jointly and severally liable (s.2(5)). Contribution between them is a separate Civil Liability (Contribution) Act 1978 issue.

Damage (s.5) is death, personal injury, or loss of or damage to property. Property must be of a type ordinarily intended for private use, occupation or consumption, and intended by the person suffering the loss mainly for their own private use. A £275 threshold applies to property damage (s.5(4)). Damage to the defective product itself is excluded (s.5(2)): the cracked kettle is a contract problem, the burned kitchen worktop may be CPA property damage if the threshold is met. Business equipment is outside s.5 property. Pure economic loss is not CPA damage.

Section 7 prevents exclusion or limitation of CPA liability by any contract term, notice, or other provision. That is stricter than UCTA's reasonableness regime for negligence.

Defences, limitation, and a worked pattern

Section 4 defences are closed-list exam material:

• s.4(1)(a) — the defect is attributable to compliance with a UK statutory or retained EU obligation;
• s.4(1)(b) — the defendant did not supply the product to another (theft from the factory; a prototype never issued);
• s.4(1)(c) — the supply was not in the course of the defendant's business and not with a view to profit (genuine private gifts);
• s.4(1)(d) — the defect did not exist in the product at the relevant time (later tampering, misuse, or fair wear after supply);
• s.4(1)(e) — development risks: the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description might be expected to have discovered the defect;
• s.4(1)(f) — for a component producer, the defect is wholly attributable to the design of the subsequent product or to instructions given by the subsequent producer.

The development-risks defence is narrow. It is not "we ran a reasonable quality system". It asks what the accessible scientific and technical knowledge could show. In A v National Blood Authority the known risk of infection defeated the defence: producers might be expected to have discovered that a given bag could be infected even if they could not eliminate the risk. Do not confuse s.4(1)(e) with a general state-of-the-art negligence argument.

Limitation. The Limitation Act 1980 s.11A gives three years from the later of the date of the cause of action and the date of knowledge of the damage, the defect, and the defendant's identity. Section 11A(3) imposes a 10-year long-stop from the relevant time (when the product was supplied / put into circulation). The long-stop is a bar, not a discretion. A claimant whose hip was implanted 11 years after first supply may be forced back onto negligence, if negligence is still alive.

Worked pattern: a UK supermarket sells its own-brand blender, assembled in Asia from a European motor and a local jug. The jug shatters in ordinary use, blinding the consumer and ruining a £400 oak worktop. The consumer's partner, who never bought the blender, was the person using it. Negligence: duty can run to the user as ultimate consumer; prove a manufacturing or design breach. CPA: the supermarket is an own-brander; the jug maker is a producer of a component; the UK importer of the finished unit is a s.2 defendant. Defect is arguable from ordinary-use shatter. Eye injury is damage; the worktop is private property above £275; the blender itself is not. A till receipt disclaimer is void under s.7. If the supermarket promptly names the importer and producer, it may escape as mere supplier under s.2(3), but own-branding keeps it in.

Exam traps: treating CPA as a need to prove negligence; claiming the price of the goods in tort under s.5(2); suing a shop that has identified the producer and is not an own-brander; applying the £275 threshold to personal injury; using an EU importer as the automatic s.2(2)(c) defendant after Brexit; running development risks on a production-line hygiene failure.