Product Liability — SQE1 FLK1 Tort Law

A jar of skin cream, given to you for your birthday. You did not buy it. Nobody can open the tub without breaking the seal, and one batch has been contaminated with an industrial solvent that was never flushed from the mixing tanks. A week later you have severe chemical burns to your face. You have never dealt with the manufacturer, or with the shop. Can you sue the manufacturer? Yes.

This is Product Liability, and it runs on two tracks. Negligence at common law, and the Consumer Protection Act 1987. They ask different questions, they cover different losses, and a good answer checks both. Keep that jar of cream in mind. It walks both tracks with us.

Here is the route. Negligence first: where the duty comes from, who owes it, and what you can recover. Then the wall you hit, pure economic loss. Then the Act. What counts as a product, who counts as a producer, when a product is defective, and what damage the Act will pay for. Then the six defences. And last, how the two routes sit alongside each other, including the clock.

Start with the shape. A defective product injures someone. Two routes lead to compensation. Negligence, at common law, where you prove duty, breach and causation. And the Consumer Protection Act 1987, which is strict: no fault to prove at all. They are not alternatives. They run side by side, and most solicitors plead both.

Negligence first, and it starts with a snail. In Donoghue v Stevenson, from 1932, Mrs Donoghue drank ginger beer that contained a decomposed snail and became seriously ill. She had not bought the drink herself, so she had no contract with the manufacturer. The House of Lords held that the manufacturer owed her a duty of care anyway.

Lord Atkin put it as the neighbour principle. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. And your neighbour is anyone so closely and directly affected by your act that you ought reasonably to have them in contemplation. For a manufacturer, the ultimate consumer is the neighbour. Even if you have never met them.

So there is your jar of cream. Sealed, no reasonable possibility of intermediate examination, and a defect likely to cause injury. That she was given the jar rather than buying it makes no difference. Before 1932 you could sue only the person you had a contract with, usually the retailer. After it, the absence of a contract is no barrier.

Who owes that duty? Manufacturers of finished products. Manufacturers of component parts. Assemblers. Anyone in the supply chain whose negligence contributes to the defect. Make brakes later fitted into a car, and you owe a duty to whoever drives it.

And it is not confined to food and drink. In Grant v Australian Knitting Mills, from 1936, woollen underwear still held a chemical residue left in during manufacture. The wearer got dermatitis, and he succeeded against a remote manufacturer he had never dealt with. Sealed goods, a latent defect, no realistic chance of checking. That is the pattern.

Now what negligence pays for. Physical injury to you, and physical damage to your other property. Not the product itself. A faulty kettle catches fire, burns your hand and destroys your kitchen table. The injury and the table are recoverable. The kettle is not.

Why not? Because the loss of the defective thing itself is pure economic loss, and pure economic loss is generally not recoverable in negligence. In Murphy v Brentwood DC, from 1990, the House of Lords confirmed it for defective buildings. A house built on defective foundations becomes dangerous, and the owner still cannot claim the cost of repairs. The same logic runs through products.

But do not over-read that. Consequential economic loss is recoverable. Loss of the product itself, no. Loss caused by the product to other things, yes. Try one. A laptop costs £1,200. Its battery catches fire, burning the owner's hands, destroying a desk that cost £400, and costing him £1,500 of freelance fees while his hands heal. Which of those four does negligence pay?

Everything but the laptop. The burns are personal injury. The desk is other property. The lost fees flow from the injury, so they are consequential. The £1,200 is the value of the defective thing itself, and for that he sues the seller in contract, under the Consumer Rights Act 2015.

Second track. The Consumer Protection Act 1987 creates strict liability for defective products. Strict means you do not prove fault. You show the product was defective, that you suffered damage the Act covers, and that the defect caused it. That is the whole claim.

Why does that matter so much? Because proving a manufacturer was negligent is hard. You do not know what went wrong inside the factory, and you have no access to the designs or the quality control records. The manufacturer holds all the evidence. Strict liability moves that weight off you. Show the defect and the damage, and the producer is liable unless it establishes a statutory defence.

So what is a product? Under s 1 of the Act, any goods, including goods incorporated into another product. It specifically includes electricity, and it reaches component parts and raw materials. A faulty wire inside a washing machine is a product in its own right. So is the washing machine.

What is not? Land. Buildings. Services. If a builder makes a mess of installing a kitchen, that is a service, not a product defect. And note the change: since 4 December 2000 the old exclusion for unprocessed agricultural produce is gone, so fruit, vegetables and meat are products too.

Who is a producer? Section 2 gives you three. The manufacturer of the finished product. The producer of any raw material or component part. And anyone who puts their name, trade mark or other distinguishing mark on the product and so holds themselves out as the producer.

That third one earns its keep. A supermarket sells cereal in boxes carrying its own brand and logo, made for it under contract by a manufacturer whose name appears nowhere on the box. The cereal contains undeclared nuts and a customer has a severe allergic reaction. The supermarket says it only sells the stuff. Wrong. Its brand on the box holds it out as the producer, and it can be sued directly.

Importers count too. Import a product into the United Kingdom and you can be treated as the producer where the manufacturer cannot be identified. If no producer can be identified, s 2(3) reaches the supplier. Each supplier is treated as the producer. Unless, within a reasonable time of being asked, the supplier names the producer, or names whoever supplied the product to them.

That is the retailer's escape hatch. Market-stall lights with no maker's name, no trade mark, nothing. They overheat and destroy a woman's curtains. She asks the stallholder who supplied them. He has the wholesaler's invoice. Hand over that name in time and he is outside the section altogether. He never has to name the actual manufacturer.

Now the heart of it. When is a product defective? Under s 3(1), when its safety is not such as persons generally are entitled to expect. Read that again. It says nothing about the manufacturer. It is objective, it looks at the product, and it does not care how much care went into making it.

Section 3(2) tells you what to weigh. How the product was marketed and presented. Any instructions or warnings given with it. What the product might reasonably be expected to be used for. And the time when it was supplied. A drain cleaner that burns through ordinary household gloves in seconds, used exactly as the label directs, fails that test. The label warned, but not adequately.

Defects come in three shapes. Manufacturing defects, where one item or one batch departs from the intended design. Design defects, where every product made to that design is affected. And warning defects, where the product is fine but the instructions are not. Try one. Toy cars whose wheels snap on, pass the initial safety tests, and with ordinary repeated play work loose on every car of that design. The line worked exactly as intended. Which kind?

Design. Every car behaves the same way and the line was working as intended, so the flaw is in the design, not the making. And one more timing point. The defect test is applied at the time the product was supplied. Safe when it left the factory in 2010, and a danger revealed by science in 2025? You still ask whether it was defective in 2010.

What damage will the Act pay for? Section 5(1): death, personal injury, and loss of or damage to property. Then three limits, and they are worth learning cold. First, the product itself is excluded by s 5(2). A faulty toaster burns down your kitchen. You claim the kitchen, never the toaster.

Second, s 5(3). The property must be ordinarily intended for private use, and intended by the claimant mainly for private use. Try one. A factory air compressor explodes. It wrecks the production line, £50,000 of damage, and destroys the factory manager's own mobile phone, £800, which he bought himself and uses for personal calls. Which of the two does the Act cover?

The phone. The production line is not property of a kind ordinarily intended for private use, so the company recovers nothing under the Act. The phone is an ordinary consumer article, bought and used privately, and it does not stop being private because it sat in a factory.

Third, the money floor. Section 5(4) bars any award for damage to property where the amount would not exceed £275. Below that, nothing for the property. Death and personal injury have no threshold at all, whatever their severity. Hold that one. It comes back.

Who can sue? Under s 1(1), any person who suffers damage caused by a defective product. Not just the buyer. A gas barbecue bought as a present catches fire. The man using it, his sister sitting nearby, and a neighbour who falls and breaks a wrist can all claim. None of them bought it. That is why your jar of cream has two routes, not one.

Now the defences. Section 4(1) gives six, and if the defendant proves any one of them, it is not liable. Start with the two that do the work. Section 4(1)(d): the defect did not exist at the relevant time, which for a producer means when it supplied the product.

A gas heater passes every check and leaves the factory in good order. A retailer then keeps it for over a year in a damp warehouse, corrosion forms inside the burner, and the buyer is hospitalised by carbon monoxide. The maker is not liable. The defect was not there when it supplied the heater. The retailer may well be liable in its place.

Then s 4(1)(e), development risks, and this is the one the exam loves. The defendant argues that the state of scientific and technical knowledge at the time of supply was not such as to enable the defect to be discovered. Nobody could have known. It is read narrowly. It covers risks that were genuinely undiscoverable, not risks the manufacturer simply failed to look for.

And the knowledge is the world's, not yours. A painkiller launched in 2018 after trials the regulator accepted as thorough. A study in a leading pharmacology journal, widely read across the industry, had reported a possible link to liver toxicity in 2017. Nobody at the company read it. The defence fails. The knowledge was accessible, and that is enough.

The other four, quickly. Section 4(1)(a): the defect was due to compliance with a mandatory legal requirement. Section 4(1)(b): the defendant did not supply the product. Section 4(1)(c): the supply was not in the course of a business. So the retired teacher who builds bird tables in his shed and gives them away is outside the Act.

And s 4(1)(f), the component defence. A component maker is not liable where the defect was wholly attributable to the design of the finished product, or to instructions given by the producer of that finished product. Make a resistor exactly to the television maker's specification, and if that design causes the fire, you are out.

One more, not in s 4 at all. Contributory negligence still applies, under the Law Reform (Contributory Negligence) Act 1945. Ignore a clear safety warning and your damages come down by the proportion the court thinks just and equitable. Partial, not complete.

Last, how the two routes live together. The Act was added to the common law, not substituted for it, so you can plead negligence and the statutory claim in the same proceedings. What you cannot do is be paid twice for the same damage. If both succeed, one set of compensation.

And watch the clock, because it differs. A claim under the Act runs on s 11A of the Limitation Act 1980. Three years from the damage or from knowledge, and an absolute long-stop of ten years from when the product was supplied. After ten years the right of action is gone, however late the damage was found. Negligence is generally six years from the damage, or three years from knowledge.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the rules. The names here are memory pegs, nothing more.

If you keep only three. Donoghue v Stevenson, for the snail, and the duty a manufacturer owes a consumer it has never met. Grant v Australian Knitting Mills, for the underwear, and the proof that the duty is not confined to food and drink. And Murphy v Brentwood DC, for the line that stops you claiming the defective thing itself.

Five traps. One: strict does not mean automatic. You must still prove, on the balance of probabilities, that the product was defective and that the defect caused the damage. Where the evidence leaves it just as likely that an earlier crash broke the handlebars, the claim fails.

Two: development risks is about undiscoverable risks, not unavoidable ones. If the scientific knowledge existed somewhere in the world and was accessible, the defence fails, even though this manufacturer had never heard of it.

Three: the cost of the defective product itself is excluded on both routes. Pure economic loss in negligence, s 5(2) under the Act. Send that client to the seller, under the Consumer Rights Act 2015.

Four: the £275 floor bites on property only. It never touches death or personal injury. And five: leaving the European Union changed nothing here. The Act remains in force, the importation wording now refers to the United Kingdom. Treat it as fully operative.

Quick check. A man buys an electric kettle for his own kitchen at home. The kettle carries the maker's name. After three months it overheats, throws out a spark and scorches the worktop. The scorch is cosmetic, the worktop still works, and repairing it would cost about £200. The spark also melted a plastic chopping board worth £15. He grabbed the kettle and burned his hand.

What may he recover under the Consumer Protection Act 1987? Three candidate answers. One: the burn and the cost of the worktop, because the Act sets no financial limits. Two: the burn only, because the damage to the worktop is below the statutory threshold. Three: nothing, because his total loss does not exceed the threshold the Act lays down. Pause here if you want a moment.

The answer is two. Section 5(4) bars any award for damage to property where the amount would not exceed £275. The worktop and the chopping board come to about £215, so nothing is recoverable for either. There is no threshold for personal injury, so the burn is recoverable however minor it was.

Why the others fail. Option one forgets the threshold. It does not touch the injury, but it certainly reaches the property. Option three adds the two claims together, and they do not add together. The threshold governs the property claim alone.

Five things to take away. One: no contract is needed on either route, which is why your birthday jar of cream can be pursued against a manufacturer she has never dealt with. Two: negligence pays for injury, for damage to other property, and for loss consequential on either, but never for the defective product itself.

Three: under the Act you prove defect, damage and causation, and nothing at all about fault. Four: the property limits are the trap. Private use property only, and more than £275. Five: run both routes, but watch the ten-year long-stop, which negligence does not have.

That is Product Liability. Next time, the last topic in Tort. Nuisance, and the rule in Rylands.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.