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Product Liability

Lecture L17 Two parallel routes Reading: Horsey & Rackley ch 12; Nolan & Oliphant ch 11

Snapshot

A claimant injured by a defective product has two parallel tort routes (alongside a contract claim against the retailer). First, common-law negligence after Donoghue v Stevenson [1932] AC 562: fault-based, but covers anyone in the production chain. Second, CPA 1987 Part I (implementing Directive 85/374/EEC), imposing strict liability on producers — easier for the claimant but tighter on damage (no PEL; consumer property only above £275; ten-year long-stop). Most claimants plead both in the alternative.

1. The common-law route — negligence after Donoghue

Pre-1932, Winterbottom v Wright (1842) erected a "privity fallacy" barring duty outside the contractual chain. Donoghue swept this aside.

Donoghue v Stevenson [1932] AC 562 (HL)

Facts: C drank ginger beer from an opaque bottle in a café and found a decomposed snail; no contract with the manufacturer.
Holding: 3:2, the manufacturer owed a duty of care. Lord Atkin's "narrow rule": a manufacturer who sells products intended to reach the ultimate consumer with no reasonable possibility of intermediate examination owes a duty to take reasonable care.
Significance: Foundational manufacturer's duty; the wider "neighbour principle" became the template for modern negligence.

The duty runs to the ultimate consumer or user and to bystanders (Stennett v Hancock [1939] 2 All ER 578). It binds everyone in the production chain — assemblers, distributors, repairers, retailers who fail to inspect (Andrews v Hopkinson [1957] 1 QB 229) — and extends to containers, labels and instructions. Some post-sale duties exist (warn: E Hobbs (Farms) v Baxenden Chemical Co [1992] 1 Lloyd's Rep 54).

Grant v Australian Knitting Mills Ltd [1936] AC 85 (PC)

Facts: C developed dermatitis from sulphite residue in new woollen underwear.
Holding: The PC extended Donoghue beyond food and drink to any product reaching the consumer without intermediate examination; defect inferred from manufacturing process (early res ipsa).
Significance: Confirms the general manufacturer's duty; breach inferable where defect would not arise without carelessness. Cf. Evans v Triplex Safety Glass [1936] 1 All ER 283 (inference failed: too many other possible actors).

The negligence route has two structural weaknesses. First, fault must still be proved — hard with automated production and elusive causation in design-defect cases. Second, Murphy v Brentwood DC [1991] 1 AC 398 bars recovery for the product itself: defects causing only repair/replacement cost are pure economic loss, unrecoverable in negligence. Personal injury and damage to other property remain recoverable.

2. The Consumer Protection Act 1987 Part I — overview

Part I CPA 1987 implements Directive 85/374/EEC, shifting product liability from negligence to strict liability — placing accident costs on producers who profit and can insure. Section 1(1) requires the Act to be "construed accordingly", so the Directive prevails on ambiguity (A v National Blood Authority [2001]); where irreconcilable, the Act governs (Wilkes [2016]). Brexit has not repealed Part I.

CPA 1987, s.2 — Liability for defective products

(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.

(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 a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.

(5) Where two or more persons are liable by virtue of this Part for the same damage, their liability shall be joint and several.

The claimant must establish (i) a product (s.1(2)), (ii) a defect (s.3), (iii) damage (s.5) and (iv) causation. No fault need be proved. Limitation: three years from injury/knowledge (s.7, Sch.1), with an absolute ten-year long-stop from when the producer put the product into circulation. Bystanders may sue.

3. Who can be sued under the CPA

Section 2(2) makes three primary defendants liable: producers (s.1(2): manufacturers, abstractors, industrial processors), own-branders (those holding themselves out as producer), and importers into the UK (pre-Brexit, the EU) in the course of business. Section 2(3) imposes secondary supplier liability: a retailer is liable if it fails within a reasonable time to identify a s.2(2) defendant on request — guaranteeing a defendant of last resort. Section 2(5) makes multiple defendants jointly and severally liable.

4. Defectiveness under s.3

CPA 1987, s.3 — Meaning of "defect"

(1) There is a defect if the safety of the product is not such as persons generally are entitled to expect; "safety" includes safety of comprised products and risks of property damage as well as death or personal injury.

(2) All the circumstances shall be taken into account, including — (a) the manner and purposes of marketing, get-up, marks, and any instructions or warnings; (b) what might reasonably be expected to be done with the product; and (c) the time it was supplied by its producer.

The s.3 test is objective and consumer-focused: what "persons generally" are entitled to expect — not what the producer thought safe or the individual claimant hoped. "Defect" means safety, not quality: a poorly-fitting jumper is not defective; a chemically-laced one is.

A v National Blood Authority [2001] 3 All ER 289 (QB)

Facts: Cs infected with Hepatitis C from blood transfusions before reliable screening was available; risk was known but unavoidable.
Holding: Burton J: the blood was defective. He distinguished "standard" from "non-standard" products (those diverging from intended specification); infected bags were non-standard. The public was entitled to expect uncontaminated blood regardless of testing limits.
Significance: High-water mark of CPA consumer protection; Directive applied directly; s.4(1)(e) defence rejected because the risk itself was known.

English courts have since pulled back from Burton J's binary. Wilkes [2016] held the s.3 inquiry to be a holistic, multi-factor risk-utility assessment, weighing all circumstances rather than the standard/non-standard taxonomy. Relevant factors: feasibility of safer design, benefits, warnings, regulatory compliance, market practice, and inherent unavoidable risks (especially in surgical implants).

Wilkes v DePuy International Ltd [2016] EWHC 3096 (QB)

Facts: C's metal-on-metal hip prosthesis fractured, requiring revision surgery.
Holding: No defect: alternative design more expensive and less effective; competitors made similar choices; MHRA-approved; risks small and warned of.
Significance: Re-orients defectiveness around risk-utility; consumer expectation assessed objectively.

Gee and others v DePuy International Ltd [2018] EWHC 1208 (QB)

Facts: 300+ claimants with DePuy "Pinnacle" metal-on-metal hips alleging soft-tissue damage from metal debris.
Holding: Andrews J, applying Wilkes, dismissed: debris release was a known property; the Pinnacle had no materially worse safety profile than competitors.
Significance: Confirms Wilkes; shows the high evidential bar in medical-device design-defect cases.

Hastings v Finsbury Orthopaedics Ltd [2022] UKSC 19

Facts: Scottish metal-on-metal hip claim relying on regulatory withdrawals and professional disquiet about such devices generally.
Holding: UKSC unanimously dismissed: generic concerns and regulatory action against other products did not, without product-specific evidence, prove the prosthesis fell below entitled expectations.
Significance: First UKSC decision on s.3; endorses the flexible all-the-circumstances approach; A v NBA survives only as one application of a flexible test.

Bogle v McDonald's Restaurants Ltd [2002] EWHC 490 (QB)

Facts: Cs scalded by hot drinks alleged the drinks were too hot.
Holding: Field J: not defective — hot drinks are known to be hot, the temperature is what customers want, the cup-and-lid system met reasonable expectations.
Significance: Obvious-risk case: a product is not defective merely because dangerous if used carelessly. Cf. Pollard v Tesco [2006] EWCA Civ 393; Richardson v LRC Products [2000] PIQR P164.

5. Damages recoverable — s.5

CPA 1987, s.5 — The damage for which there is liability

(1) … "damage" means death or personal injury or any loss of or damage to any property (including land).

(2) A person shall not be liable under section 2 above in respect of any defect in a product for the loss of or any damage to the product itself or for the loss of or any damage to the whole or any part of any product which has been supplied with the product in question comprised in it.

(3) A person shall not be liable … in respect of any loss of or damage to any property which, at the time it is lost or damaged, is not — (a) of a description of property ordinarily intended for private use, occupation or consumption; and (b) intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption.

(4) No damages shall be awarded … in respect of any loss of or damage to any property if the amount which would fall to be so awarded … does not exceed £275.

Three messages: personal injury and death always recoverable; property damage only if consumer (private-use) property and over £275 (business and small claims excluded); pure economic loss excluded — the product itself, its replacement, lost profits — mirroring Murphy and pushing such claims to contract (SGA 1979 / CRA 2015). Section 6(4) imports contributory negligence (LR(CN)A 1945).

6. Defences — s.4 and the development-risks defence

CPA 1987, s.4 — Defences

(1) In any civil proceedings by virtue of this Part against any person … in respect of a defect in a product it shall be a defence for him to show — (a) that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any retained EU obligation; (b) that the person proceeded against did not at any time supply the product to another; (c) that the supply by him was not in the course of a business and that he was not the producer, own-brander or importer; (d) that the defect did not exist in the product at the relevant time; (e) 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; and (f) that the defect — (i) constituted a defect in a product (the "subsequent product") in which the product in question had been comprised; and (ii) was wholly attributable to the design of the subsequent product or to compliance by the producer with instructions given by the producer of the subsequent product.

Five s.4(1) defences are mechanical: compliance with mandatory standards (a); never supplied (b); non-commercial supply (c); defect arose later (d); component-design conformity (f). The contested one is the development-risks defence in s.4(1)(e) ("state of the art"): excuses producers where scientific and technical knowledge at the time of supply could not be expected to reveal the defect. Optional under the Directive; the UK adopted it. Critics: imports fault into strict liability. Defenders: without it, pharma/high-tech innovation would freeze.

The defence is narrowly read. EC Commission v UK C-300/95 [1997]: "scientific knowledge" means the most advanced accessible research worldwide, not what the producer knew. In A v NBA the defence failed because, though no Hep C test existed, the risk itself was known — s.4(1)(e) cannot rescue a producer where the risk is known even if undetectable in the individual unit.

7. Application framework

Identify the loss — PI? Consumer property over £275? PEL? If only the product itself is broken, redirect to contract.
Plead both routes in the alternative — negligence (Donoghue; duty, breach inferable from defect, causation) and CPA Pt I; lead with the stronger.
CPA four ingredients — (i) product (s.1(2)); (ii) defendant (s.2(2) producer/own-brander/importer, or s.2(3) supplier); (iii) defect (s.3 — entitled expectations, all circumstances: Wilkes / Gee / Hastings); (iv) damage (s.5) and causation.
Section 4 defences — especially s.4(1)(e) development risks, narrowly construed (EC Commission v UK; defeated in A v NBA). Add s.6(4) contributory negligence.
Limitation — three years from injury/knowledge (s.7, Sch.1); ten-year long-stop from supply.

8. Common pitfalls

Treating the CPA as pure strict liability. It is defect-based: defect (s.3) and causation must still be proved. After Wilkes / Gee / Hastings defectiveness is a holistic risk-utility assessment, not automatic from injury.

Pleading the CPA for a "broken product" claim. Section 5(2) bars recovery of the product's own value; Murphy bars it at common law. Redirect to contract (SGA 1979 / CRA 2015).

Forgetting the £275 threshold and consumer-property requirement (s.5(3)–(4)). Business assets and small losses fall outside s.5 and must run on negligence or contract.

Citing A v NBA as the modern test. Burton J's standard/non-standard binary is displaced by the flexible approach in Wilkes, Gee and Hastings [2022] UKSC 19 — cite Hastings as the modern UKSC authority on s.3.

9. Exam checklist

Distinguished the two parallel tort routes (negligence and CPA Pt I) and identified which applies.
Applied Donoghue and Grant for the manufacturer's duty; addressed breach (inferable from defect) and causation.
Excluded the cost of the product itself as PEL (Murphy).
Identified the s.2(2) defendant (producer/own-brander/importer); considered s.2(3) supplier liability.
Applied s.3 entitled expectations using the flexible risk-utility approach (Wilkes; Gee; Hastings [2022] UKSC 19), with A v NBA as a non-standard application.
Confirmed s.5 damage: PI/death/consumer-property over £275; PEL excluded.
Considered s.4 defences, especially s.4(1)(e) development risks (EC Commission v UK).
Checked s.7 limitation (three years from knowledge; ten-year long-stop) and s.6(4) contributory negligence.