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Summary Product Liability Notes
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Product liabilityCommon law negligence in relation to defective products:
In Donoghue v Stevenson, the basis of the claimant’s claim and tort was that the snail was present
through the negligence of the manufacturer, and that this negligence led to consequential harm in the
form of personal injury. The key significance of Donoghue was that it recognised a general legal
relationship that is separate from contract. This legal relationship was marked by proximity or
neighbourhood, between the defendant whose negligence created the risk of harm, and the claimant
too is the ultimate consumer of his products that was exposed to that risk. This relationship gave rise
to a duty to take reasonable steps to protect the consumer from harm, provided that consumer is
proximate within the terms of the neighbour principle. Lord Atkin was expressing himself in the
context of the infliction of direct physical injury resulting from a carelessly created latent defect and a
manufactured product. He clearly equated proximity with the reasonable foresight of damage.
A duty of care is owed to a consumer, without having to buy or use the product; they just need to be
injured by it (Stennett v Hancock [1939]).
Haseldine v Daw & Sons Ltd [1941], it is not just manufacturers or producers who can be liable for
the product, it is also people who repair the product. The repairer of an article owes a duty of care to
any person who uses the article to see that it is reasonably repaired, especially where there is no
reasonable opportunity for the examination of the article after the repair is completed and after it is
used.
The claimant needs to prove that he was owed a duty, it was breached, that the breach caused the
damage, and that the damage was not too remote a consequence of the breach.
Evans v Triplex Safety Glass [1936], in this case, the claimant was injured when the window of his
car shattered for no apparent reason and injured him and other people in the car as well. Was the
manufacturer negligent? The court held that the claimant did not prove on the balance of probability
that the screen broke because of the negligence of the defendant, it could have been broken for several
other reasons. There was a significant lapse of time between the purchase of the car and the time of
the accident (1 year and a few months), so the windows might have been time when they were
purchased and damaged while they were being used. Also, the windows might have been fine, but the
people who installed it into the car might have damaged them.
Grant v Australian Knitting Mills (Australia) [1936], res ipsa loquitor (the facts speak for
themselves). The court might infer a breach of duty from the facts of the case. The claimant developed
dermatitis after wearing an of clothing manufactured by the defendants. The Privy Council held that
the reason that the claimant was injured is because the manufacturers did not wash off a chemical, so
they were negligent.
Vacwell Engineering v BDH Chemicals [1969], the manufacturer’s duty extends to using appropriate
warnings where necessary. The defendants should have warned about the dangers about a chemical
they used, which exploded if it came into contact with water. They did put “harmful vapor” but they
did not specifically warn about the dangers of explosion. The claimants used the chemical in their
manufacturing process and there was an explosion. They only have to warn about significant risks not
every single risk. They could be in breach of duty if they put too many risks to the point of inhibiting
the consumer to read them all.
There is no liability in negligence for products that simply do not work or require repair or replacing
because that would be pure economic loss compensable under contract law.
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, Junior Books v Vietchi Ltd [1983], the House of Lords allowed compensation for repair costs. This
raised concerns that tort law of negligence was being used improperly to bypass privity of contract.
The claimant cannot be compensated for pure economic loss, but if the economic loss was
accompanied by personal injury, there can be a duty of care in relation to product liability.
Aswar Engineering v Lupdine [1987], the claimant bought waterproofing compound from the
defendants, and the defendants shipped the compound in plastic containers to Kuwait before it
reached the claimant. They were left in the heat and melted, so the entire consignment was lost. The
claimant claimed for breach of contract and negligence. Under negligence he argued that he suffered
property damage because the containers were negligently manufactured, as they could not stand heat.
Since the claimants bought both the compound and the plastic containers, could it be argued that the
plastic containers caused damage to another product? The court argued that there was nothing wrong
with the containers, they were fine for normal use, it was not reasonable to expect them to stand the
heat of the dessert, because they were not built for that use. They were, nonetheless, of satisfactory
quality. The court also held that this was a case where it was artificial to think that the claimant is
buying two products, they only bought one product. So even if the containers were defective, there
could not be a successful claim for property damage, because it was not possible to say that one
product damaged another product.
Statute in relation to defective products:
Under the Consumer Protection Act 1987, the claimant does not need to use or purchase the product,
and the type of loss compensable is personal injury and death and damage to other property other than
the product itself; not pure economic loss. For example, if a component of a tv stops functioning
causing damage to other components, then the manufacturer of the faulty component could be liable
for damage to other property. However, damages assessed by reference to the purchase price or value
of the product, or for damage done to the product itself are pure economic loss. Damage to
commercial property is also not covered by the act.
Liability for defective products under the Act is strict and without fault, so there is no need to show
lack of care or other wrongful conduct on the part of the manufacturer. A controversial defence (the
development risks defence) states that the consumer takes the risk of defects which could not have
been discovered at the time of manufacture because scientific knowledge at that time did not permit
the relevant risk to be known.
The elements of the liability in the 1987 Act are as follows:
1) The product was defective.
a. A defect is defined in terms of the legitimate expectations of persons in general.
b. The key distinction between liability based on fault at common law, and strict
liability under the Consumer Protection Act 1987 lies in the difference between
showing negligence. In the Act, negligence can only be shown by a defect in the
product.
2) The defect in the product caused injury or damage to private property.
From negligence to defectiveness: Allocation of risks
Apportionment of risks in product liability acknowledges that producers take the risks of defective
products whether produced by lack of care or not, while consumers take the risks associated with non-
defective products. The development risks defence introduces a major qualification to this basic
apportionment, because if the defect could not have been discovered at the time of manufacture due to
the lack of scientific knowledge, the consumer takes the risk of the defective product. The allocation
of risk is meant to stimulate innovation on one hand and meet consumers’ legitimate expectations for
safer products on the other. Companies in high tech/high risk sectors need to be protected because it is
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