Product liability deals with what happens when a defective product causes harm. You have two main routes to pursue a claim: negligence (common law) and the Consumer Protection Act 1987 (statutory strict liability). Each has its own advantages and limitations, and understanding both is essential for advising clients who have been injured by faulty products.
Product liability questions often ask you to identify the best route for a claimant. Always consider both negligence and the CPA 1987. The strict liability regime under the CPA is usually the easier option for a claimant because they don't need to prove fault. But watch out for the defences and the property damage threshold.
Product liability in negligence begins with Donoghue v Stevenson [1932]. Mrs Donoghue drank ginger beer that contained a decomposed snail. She became seriously ill. Because she hadn't bought the drink herself, she had no contract with the manufacturer. The House of Lords held that the manufacturer owed her a duty of care — you don't need a contract to sue for negligence when a defective product causes you harm.
Lord Atkin set out the famous neighbour principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Your neighbour is anyone who is so closely and directly affected by your act that you ought reasonably to have them in contemplation. For manufacturers, this means the ultimate consumer is your neighbour — even if you've never met them.
Donoghue v Stevenson is the starting point for both general negligence law and product liability specifically. In an exam, always mention it as the foundational case. The key takeaway: no privity of contract is needed for a negligence claim against a manufacturer for a defective product.
The duty in negligence extends to manufacturers of finished products, manufacturers of component parts, assemblers, and anyone in the supply chain whose negligence contributes to the defect. If you manufacture brakes that are later fitted into a car, and those brakes are faulty, you owe a duty to the person who ultimately drives that car.
One of the most important aspects of Donoghue v Stevenson is that it abolished the need for privity of contract in product liability claims. Before this case, you could only sue the person you had a contract with — usually the retailer. After Donoghue, you can sue the manufacturer directly even though you never had any contractual relationship with them.
Under negligence, you can recover for physical injury to yourself and for physical damage to your other property. If a faulty kettle catches fire and burns your hand and destroys your kitchen table, both the personal injury and the property damage are recoverable. However, the cost of the kettle itself is not recoverable — that is pure economic loss.
Pure economic loss — financial loss that doesn't flow from physical injury — is generally not recoverable in negligence. If you buy a defective product and the product itself is worthless, that loss is pure economic loss. You can't recover the cost of the product under negligence. Your remedy lies in contract law against the seller, not in tort against the manufacturer.
In Murphy v Brentwood DC [1990], the House of Lords confirmed that pure economic loss from defective buildings is not recoverable in negligence. If a house is built with defective foundations and becomes dangerous, the owner cannot claim the cost of repairs in negligence. This principle applies equally to defective products — the diminished value of the product itself is pure economic loss.
Consequential economic loss IS recoverable. If a defective product causes physical damage to your other property, the resulting financial loss flows from that physical damage and is claimable. The distinction matters: loss of the product itself = not recoverable in negligence. Loss caused by the product to other things = recoverable.
| Case | Principle | Significance |
|---|---|---|
| Donoghue v Stevenson [1932] | Manufacturer owes duty of care to ultimate consumer | Established negligence liability for defective products without privity of contract |
| Grant v Australian Knitting Mills [1936] | Manufacturer liable for defective underwear causing dermatitis | Applied Donoghue; claimant succeeded against remote manufacturer |
| Murphy v Brentwood DC [1990] | Pure economic loss from defective buildings not recoverable | Confirmed no negligence claim for cost of repairs to defective product itself |
If your client's only loss is the cost of the defective product, direct them to their contractual claim against the seller under the Consumer Rights Act 2015. Negligence won't help them recover the purchase price. Negligence comes into play when the defective product causes physical harm to the person or damage to other property.
The Consumer Protection Act 1987 (CPA 1987) implements the EU Product Liability Directive and creates a strict liability regime for defective products. "Strict" means the claimant doesn't need to prove the defendant was at fault or negligent. They just need to show that the product was defective and that the defect caused their damage. This makes it much easier for claimants than pursuing a negligence claim.
In practice, proving a manufacturer was negligent can be very difficult. You might not know exactly what went wrong in the factory, and the manufacturer holds all the evidence. Strict liability shifts the burden: once you prove the product was defective and caused your harm, the manufacturer is liable unless they can establish one of the statutory defences. This is a much fairer system for consumers.
Under s.1 of the CPA 1987, "product" means any goods, including goods which are incorporated into another product. It specifically includes electricity and extends to component parts and raw materials. So if a faulty wire inside a washing machine causes a fire, the wire is a "product" in its own right, as is the washing machine as a whole.
The CPA does not cover unprocessed natural products like fresh fruit or vegetables in their natural state. It also doesn't cover land, buildings, or services. If a builder does a bad job installing a kitchen, that's a service issue, not a product defect. The distinction between products and services can be important — was the problem with the goods supplied, or with the work done?
Section 2 defines "producer" as the manufacturer of the finished product, the producer of any raw material or component part, and any person who, by putting their name, trademark, or other distinguishing mark on the product, holds themselves out as the producer. This last category is important — if a supermarket puts its own brand on a product, it's treated as the producer even if it didn't manufacture it.
If the product was imported into the European Union (or the UK post-Brexit, into the United Kingdom) and cannot be identified as to who manufactured it, the person who imported it is treated as the producer. This ensures that there is always someone within the jurisdiction who can be held liable. If you import goods from China and they turn out to be defective, you may be treated as the producer under the CPA.
Under s.2(3), where a producer cannot be identified, each supplier of the product is treated as the producer — unless the supplier informs the claimant, within a reasonable time, of the producer's identity or of the person who supplied them with the product. If you're a retailer and you get a claim, you can escape liability by identifying who made the product or who supplied it to you. But you must act quickly — within a "reasonable time".
In practice, claimants often sue the retailer first because they're the easiest to identify. The retailer can then either defend the claim or pass it up the chain. The s.2(3) identification defence gives retailers a route out — they just need to identify the real producer. But if they can't, or don't do so in time, they're stuck with liability.
| Party | Role | Basis of Liability |
|---|---|---|
| Manufacturer | Made the finished product | Producer under s.2(1) |
| Component maker | Made a part of the product | Producer under s.2(1) |
| Own-brander | Put their brand on someone else's product | Treated as producer under s.2(1) |
| Importer | Imported product into EU/UK | Treated as producer under s.2(1) |
| Supplier/Retailer | Sold the product to consumer | Treated as producer under s.2(3) if actual producer not identified |
Under s.3(1), a product is defective when its safety is not such as persons generally are entitled to expect. This is an objective test — it doesn't matter what the manufacturer intended or whether they took reasonable care. The question is whether the product is safe enough by the standards that ordinary people would expect. It's a consumer expectation test.
Section 3(2) sets out the factors you must consider when deciding whether a product is defective. These include: how the product was marketed and presented, any instructions or warnings given with it, what the product might reasonably be expected to do, and the time when the product was supplied. A product that was safe when manufactured might become defective later if new risks are discovered — but the test is applied at the time of supply.
Defects can take several forms. Manufacturing defects occur when an individual product is flawed during production — a batch of medicines contaminated during bottling, for example. Design defects affect every product made to that design — a car model with brakes that fail under normal conditions. Finally, warning defects arise when the product is fine but the instructions or safety warnings are inadequate, making it unsafe in practice.
The test for defect is applied at the time the product was supplied to the claimant. If a product was perfectly safe when it left the factory in 2010 but scientific advances in 2025 reveal a previously unknown danger, you need to ask whether the product was defective at the time it was supplied in 2010. This links closely with the development risks defence under s.4(1)(e).
The key difference from negligence: under the CPA, it doesn't matter whether the manufacturer took all reasonable care. Even a manufacturer who did everything right can be liable if the product fails the consumer expectation test. This is why it's called "strict" liability. The focus is on the product's safety, not the manufacturer's conduct.
Under the CPA 1987, damage includes death and personal injury (s.5(a)), and damage to any property (s.5(b)). However, there are important limitations on property damage claims that you need to know. The product itself is excluded — you can't claim for the cost of the defective product. And property damage is limited to private use property belonging to the claimant.
Section 5(4) sets a minimum threshold for property damage claims: the damage must exceed £275. If a defective product causes damage to your property worth less than £275, you can't claim under the CPA 1987 for that property damage. You might still have a claim for personal injury, but the property damage element falls below the threshold. This threshold exists to prevent trivial claims from flooding the courts.
The CPA only covers damage to property that is ordinarily intended for private use or consumption. If a defective product damages commercial or industrial property, the claimant can't recover for that property damage under the CPA. For example, if a faulty machine in a factory damages other factory equipment, the CPA won't cover the damage to the other equipment because it's not for private use.
You cannot claim for the cost of the defective product itself under the CPA 1987. If a faulty toaster burns your kitchen down, you can claim for the kitchen damage but not for the cost of replacing the toaster. This is consistent with the pure economic loss exclusion in negligence. The cost of the product is a matter for your contractual claim against the seller.
| Type of Damage | Covered? | Notes |
|---|---|---|
| Death | Yes | No threshold applies |
| Personal injury | Yes | No threshold applies |
| Damage to private use property over £275 | Yes | Property of the claimant, for private use |
| Damage to private use property under £275 | No | Below the statutory threshold |
| Damage to commercial/industrial property | No | Must be for private use |
| Cost of the defective product itself | No | Excluded — pursue contractual claim |
| Pure economic loss | No | Not covered by CPA 1987 |
Under s.1(1), any person who suffers damage caused by a defective product can bring a claim. You don't need to be the person who bought the product — a bystander, a family member, or anyone else injured by the defective product can sue. This is wider than contract law, which generally only allows the buyer to claim.
Under s.2(1), you can sue the producer of the product. As we've seen, "producer" includes manufacturers, own-branders, and importers. If you can't identify the producer, s.2(3) lets you sue the supplier instead. The supplier then has the identification defence — they can avoid liability by pointing you to the real producer. In practice, claimants often start with the retailer and work up the chain.
Section 4(1) sets out six defences available to a defendant under the CPA 1987. If the defendant proves any one of these defences, they are not liable. The defences are narrower than in negligence — you can't argue that the claimant was simply careless, for example (though contributory negligence under the Law Reform (Contributory Negligence) Act 1945 can still reduce damages).
The defendant can argue that the defect did not exist at the "relevant time" — when the product was supplied by them. If a product was safe when it left the factory but became defective later due to the claimant's misuse, improper storage, or a modification, this defence may succeed. The key question is always: was the product already defective when it left the defendant's control?
Under s.4(1)(e), the defendant can argue that the state of scientific and technical knowledge at the time the product was supplied was not such as to enable the defect to be discovered. In other words, nobody could have known about the risk given what was known at the time. This is the most controversial defence — it allows a manufacturer to escape liability even for a dangerous product, provided the risk was genuinely undiscoverable.
The development risks defence is interpreted narrowly. It only applies where the defect was genuinely undiscoverable — not where the manufacturer simply failed to carry out adequate research or testing. If the scientific knowledge existed somewhere in the world but the manufacturer didn't know about it, that's not enough. The test looks at the state of scientific and technical knowledge generally, not just the manufacturer's own knowledge.
The defendant can show that they did not supply the product. If someone is wrongly identified as the supplier, they can use this defence. This might arise where products are mislabeled or where there is confusion in the supply chain.
Under s.4(1)(c), the defence applies where the producer did not supply the product in the course of a business. If someone makes a product as a hobby and gives it to a friend, they are not liable under the CPA. The defence only applies to products not supplied "in the course of a business" — a one-off sale by a private individual is not covered.
Under s.4(1)(d), the defence applies where the product was not manufactured or distributed in the course of the defendant's business. This is similar to s.4(1)(c) but focuses on the product rather than the supply. If a business manufactures furniture but also makes items for internal use, a defect in an item made purely for internal use might attract this defence.
Under s.4(1)(f), the defendant can argue that the defect was caused by compliance with a mandatory legal requirement. If the government passed a regulation requiring products to be made in a certain way, and that requirement itself created the defect, the manufacturer is not liable. They had no choice — they were following the law.
Although contributory negligence is not listed as a defence in s.4, it still applies under the Law Reform (Contributory Negligence) Act 1945. If the claimant's own carelessness contributed to their injury, the court can reduce the damages by the proportion it considers just and equitable. For example, if a claimant ignored clear safety warnings on a product, their damages might be reduced.
| Defence | Section | Key Point |
|---|---|---|
| Defect didn't exist at relevant time | s.4(1)(a) | Product was safe when it left the defendant's control |
| Not supplied by defendant | s.4(1)(b) | Defendant wasn't the supplier — wrong identification |
| Not supplied in course of business | s.4(1)(c) | Private individual, not a business supply |
| Not manufactured for business purposes | s.4(1)(d) | Product not made in the course of the defendant's business |
| Development risks | s.4(1)(e) | Scientific knowledge insufficient to discover the defect |
| Statutory compliance | s.4(1)(f) | Defect caused by complying with mandatory legal requirement |
| Contributory negligence | Law Reform (Contributory Negligence) Act 1945 | Reduces damages — not a complete defence |
In an exam question, always run through each defence systematically. The development risks defence is the most commonly tested because it's the most nuanced. Ask yourself: was the risk genuinely undiscoverable? Would better testing have revealed it? If yes, the defence fails. The statutory compliance defence is also worth flagging — it's a complete defence but rarely applicable.
A claimant who suffers injury from a defective product has two possible routes: a negligence claim or a claim under the CPA 1987. They are not mutually exclusive — the claimant can pursue both routes either in the same proceedings or separately. In practice, most solicitors will include both causes of action in their particulars of claim to maximise the chances of success.
The CPA 1987 offers strict liability — easier to establish, but with limited heads of damage and a narrower set of defences. Negligence requires proof of duty, breach, and causation — harder to establish, but potentially allows broader recovery of damages. The CPA doesn't replace negligence; it runs alongside it as an alternative or complementary route.
A claimant cannot recover twice for the same damage. If they succeed under both negligence and the CPA 1987, they receive one set of compensation. The court will ensure there is no double counting. In practice, the claimant will typically recover the higher of the two awards where they differ. The dual route is about ensuring access to justice, not about multiplying recovery.
| Feature | Negligence | CPA 1987 |
|---|---|---|
| Basis of liability | Fault-based — must prove duty, breach, causation | Strict — no need to prove fault |
| Defect requirement | Must prove breach of duty of care | Product must fail the consumer expectation test |
| Pure economic loss | Generally not recoverable | Not recoverable |
| Property damage | Recoverable (consequential) | Recoverable but only private use, £275+ threshold |
| Defences | Full range (volenti, contributory negligence, illegality) | Limited statutory defences under s.4 |
| Contributory negligence | Available as partial defence | Available under Law Reform Act 1945 |
| Who can be sued? | Anyone who owed a duty of care | Producer, own-brander, importer, or supplier under s.2 |
| Limitation | 6 years from damage (or 3 from knowledge) | 10 years from when product was supplied (s.7) |
The CPA 1987 has a long-stop limitation period of 10 years from when the product was supplied under s.7. After 10 years, no claim can be brought under the CPA regardless of when the damage was discovered. Negligence claims generally have a 6-year limitation from the date of damage (or 3 years from date of knowledge under the Limitation Act 1980). This can make a real difference — always check the dates.
The CPA 1987 originally implemented the EU Product Liability Directive. Post-Brexit, the Act remains in force in UK law. However, the reference to "EC" or EU importation has been updated to refer to the UK. The core principles remain unchanged. For the SQE, treat the CPA 1987 as fully operative UK legislation — the exam tests you on the law as it stands.