Product liability under

the Consumer
Protection Act 1987
An introduction to product liability under the
Consumer Protection Act 1987
Introduction

The Consumer Protection Act 1987 (the 'Act') provides a statutory basis for claiming in
relation to damage caused by defective products. It does not replace any claim in
negligence / breach of contract, so whenever faced with a problem involving a defective
product, a practitioner should consider negligence, breach of contract and the Consumer
Protection Act 1987.
A successful claim in negligence requires the claimant to show 'fault' on the part of the
defendant ie that the defendant fell below the required standard of care. The Consumer
Protection Act 1987 aimed to introduce a strict liability regime – a regime where parties
could be found liable without it being necessary to show fault on their part. This provides
better protection from a consumers' perspective and makes it easier for them to claim.
The Act also stems from an EU directive, and would have been intended to contribute to
the harmonisation of laws across the EU: it may remain important because UK producers
will continue to sell products into the EU market.
Introduction

Read alongside:
Access the Act. Read the remainder of this element alongside the Act. Much
of what is set out in this element is set out clearly within the Act – in
particular, ss 1-5 & 7.

All section references in this element are references to sections of the Act, unless
otherwise stated.
Note that in practice, in the event that a manufacturer discovers that a product is
defective, the manufacturer will need to consider whether a class of products should be
recalled, any particular legislation or regulation of the sector concerned, and significant
commercial / reputational factors. These are outside the scope of this element.
The Consumer Protection Act 1987

We are going to start our exploration of the Act with section 2(1), set out below. Read this
carefully.

2(1) Subject to the following provisions of this Part, where

any damage is caused wholly or partly by a defect in a
product, every person to whom subsection (2) below applies
shall be liable for the damage.
The Consumer Protection Act 1987

So certain people will be liable for damage caused by a defect in a product. This
subsection is at the heart of the Act – it is the basis for a claim under the Act. So to
understand who can claim, we will start with making sure we understand this subsection.
We will take key parts of this in turn in the order indicated below.

Third Second
2(1) Subject to the following provisions of this Part, where
any damage is caused wholly or partly by a defect in a
product every person to whom subsection (2) below applies
shall be liable for the damage.
First Fourth
Product 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
in a product, every person to whom subsection (2) below
applies shall be liable for the damage.

Section 1(2)
'“product” means any goods or electricity and (subject to subsection (3) below) includes
a product which is comprised in another product, whether by virtue of being a
component part or raw material or otherwise'

So product means any goods. And something which is included as a component or raw
material in something else, is still a product.
Examples
So a computer chip is still a product, even once it becomes part of a computer.
Plastic sheeting is still a product, even once it has been moulded into a toy.
Defect 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
in a product, every person to whom subsection (2) below
applies shall be liable for the damage.

Section 3(1)
'there is a defect in a product for the purposes of this Part if the safety of the product is
not such as persons generally are entitled to expect; and for those purposes “safety”, in
relation to a product, shall include safety with respect to products comprised in that
product and safety in the context of risks of damage to property, as well as in the
context of risks of death or personal injury'

So you can see from this that whether or not something is defective depends on what
people are 'generally entitled to expect'. This makes sense. People's expectations of the
safety of (for example) children's toys are not going to be the same as their expectations
of power tools for DIY.
Defect contd. 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
in a product, every person to whom subsection (2) below
applies shall be liable for the damage.

Section 3(2) expands the explanation we have seen, setting out that what people are
entitled to expect depends on all the circumstances, including:
- The manner / purposes for which it has been marketed (example: we would expect
cutlery marketed as suitable for young children to be safer than that marketed for
adults). The way in which a product is described on packaging and any warnings that
accompany a product are potentially relevant to what people are entitled to expect.
- What might reasonably be expected to be done with / in relation to the product
(example: it would not be reasonable to use a microwave to dry a wet dog).
- The time when the product was supplied by its producer to another (for example: at
one time, mobile phones were rarely purchased by / for children, but now this is quite
common – expectations as to safety (in the hands of children) may therefore have
changed over time. In addition, some products might be safe when put into circulation
but deteriorate over time to become less safe).
Examples
In Richardson v LRC Products Ltd [2000] Lloyd’s Rep Med 280, the court
rejected a claimant’s action for a ‘defective condom’ that led to her
pregnancy on the basis that the defendant did not claim its product to be
100 per cent effective. Generally, people realise that such precautions
are not totally effective.

The absence of a warning was regarded as significant in Abouzaid v

Mothercare (UK) Ltd, The Times, 20 February 2001. The claimant was
injured when attaching a 'cosytoes' (a fleece-lined sleeping bag) to a
pushchair – an elastic strap sprung into his eye, causing partial loss of
vision. The product was held to be defective because ‘it was supplied
with a design which permitted the risk [of losing control of an elastic strap
which might injure a person’s eyes] to arise and without giving a warning’.
The public was entitled to expect more from the manufacturer.
The difference between s 3(1) and the
standard of care in negligence
One interpretation of Richardson might be that all the public is generally entitled to
expect is for the manufacturer to take all reasonable steps to ensure the product is up to
standard; but if you think about it, this is just another way of saying that the manufacturer
need only take reasonable care, just as they are required to by the tort of
negligence. Yet as mentioned above, the Act was meant to demand considerably more
of manufacturers than traditional negligence requires. Thus in A v National Blood
Authority [2001] 3 All ER 289 the claimants sued the National Blood Authority under the
Act as a result of personal injuries arising from their being transfused with blood infected
by hepatitis. The defendant argued that it had taken all reasonable care to ensure that
the blood was safe and that this is all the public is entitled to expect. Burton J. disagreed
and set the standard somewhat higher. He noted that a patient undergoing a transfusion
is legitimately entitled to expect that they will not be given infected blood, and that to hold
otherwise would be to offer no more protection than the tort of negligence and to take
strict liability out of a strict liability regime. It is therefore clear that when assessing
expectations of a product the bar should be set higher than the negligence standard of
reasonable care. Richardson can be distinguished because condoms are both marketed
and generally known not to be 100% reliable. The same cannot be said of
blood. Reasonable care therefore had no role in either case.
Damage 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
in a product, every person to whom subsection (2) below
applies shall be liable for the damage.

Section 5(1)
'Subject to the following provisions of this section, in this Part “damage” means death or
personal injury or any loss of or damage to any property (including land)'.

So most types of loss count as damage within the meaning of the Consumer Protection
Act 1987, but not (it would appear) pure economic loss.
However, no claim can be brought for the loss of the product itself, or any product
supplied with the defective product as part of it.
Example: a manufacturer of motors supplies a defective motor to a manufacturer of
washing machines. The manufacturer of washing machines uses the motor in a washing
machine and sells the washing machine to a consumer. It causes a fire in the consumers
home which causes injury to the consumer and damage to the consumer's home. The
consumer can recover in relation to the injury and the damage to the consumer's home,
but not for the cost of the washing machine (or even the motor) itself.
Damage contd. 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
in a product, every person to whom subsection (2) below
applies shall be liable for the damage.
There are two further limits on the type of damage for which a claim can be brought:
1. No claim can be brought in relation to damage to property unless the sum to be
awarded exceeds £275, excluding interest (s 5(4)).
2. No claim for damage to property can be brought unless the property is ordinarily
intended for private use / occupation / consumption and intended by the person
suffering the loss or damage mainly for his own private use / occupation /
consumption (s 5(3)).
The effect of the second of these limits is that losses suffered by businesses are unlikely
to be recoverable.
Damage - summary

Recoverable Not recoverable

Loss of the product itself, or any product

supplied with the defective product as part of it

Death Damage to property not exceeding £275 in total

Personal injury
Loss of or damage to any Damage to property which is not ordinarily
property (including land) intended for private use / occupation /
consumption

Damage to property which is not intended by the

person suffering the loss or damage mainly for
his own private use / occupation / consumption
Persons liable 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
for damage in a product, every person to whom subsection (2) below
applies shall be liable for the damage.

Section 2(2)
(2) This subsection applies to—
(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trade mark or other
distinguishing mark in relation to the product, has held himself out to be the
producer of the product;
(c) any person who has imported the product into the United Kingdom from a place
outside the United Kingdom in order, in the course of any business of his, to
supply it to another.
The provisions in subsections (a) and (b) are self-explanatory. Subsection (c) is an
interesting provision: its effect is broadly to ensure that there will always be someone in
the United Kingdom who falls within s 2(2) in relation to goods purchased in England and
Wales – if the product was produced in the United Kingdom, then there will be a producer
in the United Kingdom. If it was produced outside the United Kingdom, then there must
be an importer in the United Kingdom who brought it in.
Persons liable 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
for damage in a product, every person to whom subsection (2) below
applies shall be liable for the damage.

S 1(2) tells us that 'producer' means:

1. For products that are manufactured (eg a car) – the manufacturer
2. For products that are 'won or abstracted' (eg coal, which is abstracted from the
ground, but not manufactured) – the person who won / abstracted it
3. For products to which neither of the above applies, but where the essential
characteristics are attributable to a process carried out (for example, agricultural
produce – which is neither manufactured nor abstracted, but which is the clear result
of a process) – the person who carried out that process.
Persons liable 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
for damage in a product, every person to whom subsection (2) below
contd. applies shall be liable for the damage.
The provision mentioned above is bolstered by s 2(3). This provides that someone who
supplied a defective product to any person will be liable for the damage caused by the
defect if the person suffering damage asks for details of the producer / importer within a
reasonable time and when they cannot identify the producer / importer themselves, and
the supplier fails to identity that person.
An example of a supplier would be a retailer who sells products which they did not
produce. If a retailer wants to avoid being liable for defects in the products which it sells
under the provisions of the Consumer Protection Act 1987 then it needs to be able to tell
someone suffering damage who produced / imported the goods, so the person suffering
damage can pursue them instead (note, however, that someone purchasing a defective
item from a retailer may still have a contractual claim against the retailer).
The result of all these provisions is that more than one person could be liable for the
same damage under the Act. If so, they will be jointly and severally liable (s 2(5)).
Who can bring 2(1) Subject to the following provisions of this Part,
where any damage is caused wholly or partly by a defect
a claim? in a product, every person to whom subsection (2) below
applies shall be liable for the damage.
You might notice that neither in s 2(1) nor anywhere else in the Act is there a description
of who can bring a claim, and despite the name of the Act referring to 'consumer', there is
no reference / definition to consumer in the relevant provisions. However, if you recall /
revisit the explanation of the types of recoverable 'damage' above, you will see that,
broadly, business losses cannot be recovered under the Act. In this sense, the protection
afforded by the Act is limited to 'consumers'.
Note however that the effect of this approach is that the protection is not limited to people
who purchased the product (as would usually be the case in a contractual claim), nor
even limited to people who used the product. Anyone suffering damage as a result of the
defect can sue (this is the natural interpretation of s 2(1)), and the Act does not state
anything different anywhere else.
This approach has some consequences that might not be obvious. For example, assume
that a product is intended solely for business use, it is marketed in that way, it is
purchased by a business and it is used by that business. If, in the course of such use, the
product damages a consumer's property due to a defect in that product, then that
consumer can bring a claim under the Act – despite the whole manufacture, supply and
use of the product being business-orientated.
Defences

If the application of the provisions already addressed points to a party being liable, that
party can avoid that liability if one of the defences set out in s 4 of the Act applies. You
should read this section to understand all of the defences, but perhaps the most
important are that it is a defence if:
1. 'the defect did not exist in the product at the relevant time' (s 4(1)(d)); or
2. 'that the state of scientific and technical knowledge at the relevant time was not such
that a producer of products of the same description as the product in question might
be expected to have discovered the defect if it had existed in his products while they
were under his control' (s 4(1)(e).
There is some argument as to whether s 4(1)(e) introduces a fault aspect 'via the back
door'. Note, however, that if a manufacturer is aware of a defect but the state of scientific
/ technical knowledge is such that the defect cannot be fixed, this will not be a defence to
a claim. S 4(1)(e) talks only about inability to discover, not about inability to fix.

Under s 6(4) contributory negligence is available as a defence.

Challenge yourself
Access and read A & others v National Blood Authority & another [2001] 3
All ER 289 (mentioned briefly above in relation to the difference between s
3(1) and the standard of care in negligence).

This judgment will aid your understanding of several aspects of the Act.
Exemption clauses

S 7 prohibits any exclusion or limitation of liability under the provisions of the Act set out
in this element.
Limitation

The claim must be brought within three years from the later of:
1. the date the injury and/or damage occurred; OR
2. when the claimant became aware or should reasonably have become aware of the
damage (s 11A(4) Limitation Act 1980).
There is a long stop of ten years after the product was put into circulation by the
defendant (s 11A(3) Limitation Act 1980). This represents an absolute defence to such
actions after this time. This means that sometimes the only option a claimant will have is
a claim in negligence whose limitation rules are more generous.
For example - suppose a product damages a claimant's property but that damage is not
immediately obvious. Under the Act, the claimant has three years from the time at which
he ought to have known of the damage. However, where the loss is anything other than
personal injury (here we have property damage), the tort of negligence allows six years.
What does this add to other areas of law?

It is important to note the breadth of this Act.

Firstly, the protection is not limited to people who purchased the product (as would
usually be the case in a contractual claim), nor even limited to people who used the
product. Anyone suffering damage as a result of the defect can sue.
Secondly, in negligence, foreseeability of harm is a necessary part of establishing a duty
of care and therefore of establishing liability. This is not the case in relation to the Act.
Thirdly, the 'causation' requirement under the Act is that the damage was caused 'wholly
or partly' by the defect (s 2(1)). This is somewhat simpler than the causation aspect of a
negligence claim.
Note also the point made above in relation the difference between s 3(1) and the
standard of care in negligence.
Summary in relation to product liability under
the Consumer Protection Act 1987
• A claim can potentially be brought in relation to product liability under the provisions of
the Consumer Protection Act 1987. This is independent of any potential claim in
negligence or for breach of contract.
• Under the Act, anyone suffering damage from a defective product can bring a claim,
whether or not they purchased or used the product.
• Claims can be brought against the person that produced the product.
• A claimant must show that the product was defective – that it was not such as persons
are generally entitled to expect, taking into account warnings, packaging and
expected use.
• There is no need to show 'fault' on the part of the defendant, but the defendant may
have a defence if the 'state' of scientific / technical knowledge meant it could not be
expected to discover the defect.
• Claims can be brought in relation to death, personal injury and loss / damage to
domestic property.