Product Liability I

Liability in Negligence

A manufacturer of products, which reach the ultimate consumer in the same form in which they are sold by it, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or manufacture of the product will result in injury to the consumer’s life or property, owes a duty to the consumer to take reasonable care.

This duty of care and liability in negligence was famously declared in the modern case on the general principles of negligence; Donoghue v Stevenson.

The duty supplements the implied obligations in the Sale of Goods and Supply of Services Act. It is owed not only to the person with whom there is a contract but also to a range of persons who foreseeably use goods or products or may be injured by them, regardless of use.


Negligence Liability not limited to Manufacturers

The principle is not limited to manufacturers. It covers repairers, installers, and in some cases suppliers and retailers. Where a product is repaired negligently, and a person thereafter suffers personal injury, the repairer will usually have a sufficient relationship of proximity so to be liable for injuries thereby caused on principles of negligence.

Similarly, where goods or plant has been installed and assembled negligently, persons who suffer damage in consequence of the negligent installation or assembly, will have sufficient proximity in most circumstances so as to recover in negligence, on general principles.

On first principles, a supplier or retailer of goods may be under a duty of care for the safety of those to whom they were supplied or persons who are likely to use them. They may be liable to a range of foreseeable users in negligence. Their duty may co-exist with their obligations and liabilities under the sale contract to the buyer.


Particular Risks to Consumers

Food and drink products pose particular risks of personal injury because they are ingested. Food and drinks are subject to very detailed regulation and control which define the required controls and in some cases the standards and composition. The regulation and controls will either assist in defining or actually define the standard of care required.

A number of cases have involved clothes which proved flammable in the vicinity of fire, particularly when worn by children. Where the manufacturer or retailer fails to ensure warnings, they were found to be in breach of their duty of care and liable for injury caused. Specific statutory standards now apply in respect of this risk.


Concurrent Liability of Manufacturer and Retailer

The manufacturer and the retailer may be concurrently liable to a consumer who is injured by a product. The onus in negligence on the manufacturer may be higher.  It will usually be expected to thoroughly design, manufacture, test and examine the product.  The retailer may be entitled to assume in many cases that the manufacturer has dealt with the risks and has provided the requisite warnings where necessary.

The retailer’s liability to the buyer under the contract remains unconditional. However, liability under the contract does not usually extend to third parties. It does not cover the same extent of loss as a claim in negligence. The retailer may be able to join the manufacturer and others above him in the distribution chain in proceeding taken against him by a customer who has suffered injury or other loss.


Negligence in Choosing Components

The question arises as to whether a manufacturer, who puts a product into circulation, containing components manufactured by another, is responsible for the defects in the product which causes loss or damage, which is wholly attributable to the component. In some cases, the manufacturer may be acting with due care in relying on components and ingredients.

However, the manufacturer will commonly be liable for negligent selection or negligence in incorporating the particular component. The manufacturer is bound to have regard to contingencies, no matter how remote. The nature of the precautions it is obliged to take relates to the probability of the particular risk to which it relates causing injury, damage or other loss and the probable extent of such loss.


To Whom Duty Owed

Persons who use a product will almost invariably be owed a duty to take care. In most instances, the users of the product are obvious and foreseeable persons who will be affected by a breach of duty.

In the case of some products, it may be foreseeable that third parties may suffer loss and damage by reason of a defect in them. Such persons, such as passengers in a dangerous car or even members of the public may be owed a duty of care on first principles.


Contributory Negligence

In the original formulation of the duty of care of manufacturers in the famous Donoghue v Stevenson, there was no opportunity for intermediate examination on the part of the user.

If the claimant was actually aware of the danger and proceeded nonetheless to use the product, then the manufacturer or supplier is unlikely to be liable. The claimant who uses the product with such knowledge of the danger assumes the risk and the chain of causation may also be broken.

In other cases, the claimant may be contributorily liable where he is negligent in his use of the product. where he had the possibility of examination or of discovering the dangerous defect.


Dangerous Substances

Product liability may arise in the case of supply of dangerous substances or dangerous products. There is substantial legislation controlling dangerous substances. However, liability for damage that they cause may arise on first principles as well as by reason of breach of statutory duty.

If a person has a control of a dangerous substance, then he may be liable for injury for failure to take reasonable care in respect of injury caused if it escapes. Where the risk of harm or danger to the public is high, the duty to prevent escape or emission would be correspondingly high.


Duty to Warn I

There is a duty to warn and to make the public aware of dangers in the product and its particular use or misuse. This duty may be informed by the state of current knowledge. The nature of the duty will depend on the nature of the product and the class of persons who are likely to acquire it.

In the case of the supply of products to businesses, the duty to warn is generally less than that in the case of supplies to consumers and the public generally.

A warning will negate liability only if it is such that on a balance of probability, it would have prevented the incident or accident concerned.

The Irish courts have (effectively) required large retailers to attach warning labels, even where they were not required by statute. Cases in negligence have held that there to be such a duty, where there were known dangers associated with the particular product, which would not be readily apparent to consumers and users, such that there were foreseeable risks of serious consequences.


Duty to Warn II

Manufacturers may have a duty to inform the public of defects discovered after sale. The scope of the duty is unclear. Where a serious defect is discovered, the duty of care would appear to encompass a duty to alert the public, including, in particular, persons who have already purchased the product.

The scope of the duty will depend on the circumstances. Where goods are distributed through intermediaries, the duty may be satisfied in some case by alerting those intermediaries and in some cases, other dealers. In many cases, a wider notification to the public is required; the circumstances will determine what is reasonable.

The duty of manufacturers and other in negligence is not dependent on the sale of a product. A manufacturer or other who supplies a product gratuitously nonetheless has a duty of care in relation to its safety. That duty may be sometimes less than in the case where the product is sold. However, the general principles of negligence will determine the position and will usually require a high duty of care, regardless of a sale or gratuitous distribution.


Causation and Proof of Negligence

In order for there to be liability in negligence, the failure of duty on the part of the manufacturer, producer or supplier of the products must have caused the injury or damage. Causation must be proved as a matter of fact. Expert scientific evidence may be offered as in seeking to prove causation or the absence of causation.

There have been a number of high-profile instances, particularly in relation to medicines, where damaging consequences were alleged to follow from the use or the particular use, but where no causation or connection could be proved.

The principle of res ipsa loquitur may apply in product liability negligence. Where the claimant shows that in the ordinary course of things, the damage would not have resulted but for negligence, the onus may be shifted to the defendant to rebut negligence in the production, manufacture process, production or supply of the product.


Damage to the Product itself

The English and Irish courts have struggled with the issue of liability for defective products which are not dangerous in the sense of causing personal injury but where the defect devalues them. The principle having been permitted in principle in a number of cases in the 1980s was quickly disowned subsequently on the basis that matters of defects and failures of conformity should be dealt with by the contract.

Difficult questions remain where what is defective is part of the whole product so that it might be said that the defective part has caused damage to the remainder.


References and Sources

Irish Texts

Irish Tort Legislation    Fahey  Irish Tort Legislation    2015

Tort Law in Ireland      Tully    Tort Law in Ireland      2013

Torts in Ireland            Quill     Torts in Ireland            2014

McMahon & Binchy    Law of Torts    4th       2013

McMahon & Binchy        Casebook on the Law of Torts 3rd 2005

Connolly, U     Tort Nutshell                2009

Connolly, U & Quinlivan         Tort Cases & Materials

UK Texts

Lunney, M. and K. Oliphant Tort law: text and materials. (OUP) 2013 5th Ed

Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law. (OUP) 2012 7th Ed

Giliker, P. Tort. (Sweet & Maxwell) 2014 5th Ed

Horsey, K. and E. Rackley Tort law. (OUP) 2015 4th Ed

McBride, N.J. and R. Bagshaw Tort law. (Pearson) 2012

Steele, J. Tort law: text, cases and materials. (OUP) 3rd Ed

Casebooks

O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases

and materials. (Oxford: Hart Publishing) 2015 7th Ed

Weir, T. A Casebook on tort. (Sweet & Maxwell, 2004) 10th Ed