LAW OF DELICT

PRODUCT LIABILITY

BY SATHYA
 PRODUCT LIABILITY

DEFINITION

Product liability may be defines as the legal obligation or

responsibility of a manufacturer and certain other
transferors (distributor, fitter, supplier, repairer etc.) or
vendors of goods to compensate the indemnify person who
have suffered injuries caused by a defective product that
have been provided for a sale.
CHAPTER 1
 product Case Law
Hot coffee I.Liebeck V Mcdonald's
Bogle V Mcdonald’s restaurant ltd

Gas cane Blitz us producer of portable gas canes

Burger Bylsma V Burger King Corp Us 2013

Cream Cases against Johnson & Johnson

Cosmetic Number of claims against Hindustan

Unilever of India

Apple RECENTLY IN SRI LANKA

Blood A Vs. National blood authority

Asbestos Asbestos most expensive mass tort in Us

Dress Cassells (a minor) vs. marks and spencers

plc (Ireland)

Refrigerator Chinta Devi V Glacio ltd

 CASE LAWS

1  Claimant had order a hot coffee Lieback awarded a jury

Liebeck V from McDonald’s verdict at $ 2.7 million
in punitive damages
Mcdonald's  Accidently poured hot coffee and

Us 1994  Thereby, on claimant lower body

have suffered a third degree of $ 1, 60,000 for medical
burns on her expenses.
.

 Claimant argues normally

companies served only at 140
degrees but defendant company
served nearly 180-190 degree

 It governs under CPA Act of Court held who

Bogle V Mcdonald’s 1987. bought a tea could
restaurant Ltd know, drinks some
 Not warning their customer by time may be spilled.
McDonalds depends on the
objective assessment of all the There was no duty of
UK 2002 circumstances. care on the part of
the McDonald to
 Including the risk of injury and outline a separate
appreciation of customers that
warning.
gave rise to the risk
About the risk posed
by the temperatures
at which tea or
coffee were served.

Nonetheless,
warnings printed on
the cups in 1995.
3  Many customers from different But company was
Blitz us producer part of the country make claim unsuccessful.
against the company.
of portable gas  Claim was based on the Many claims are
particular designation of a
canes caused to close its
cane.
 Cane would be explode when use
operations.(2012
to pour gas start a fire. alone 30 cases)

 Company argues that, warning is

mentioned “

4.  Bylsma sued burger king Corp WPLA does not

Bylsma V Burger allow for recovery of
 Bylsma order a burger whopper emotional distress
King Corp Us
damages in absence
2013  Before consuming the burger, of physical injury.
fortunately he discovered the
spittle (a glob of spit)
However, remedy
 Later the DNA report reveals awarded, not this
that Saliva belongs to an rule strictly followed.
employee working at the time.

 Bylsma claims based on the

mental distress, vomiting, food
aversion and sleeplessness
5  State court jury in Missouri, Plaintiff awarded 195
Cases against  A case concerning, this product million by medical
increases the risk of overian evidence.
Johnson & cancer
Johnson  Claimant alleged she used this
More than 2500
powder for 36 years and was lawsuit are pending
diagnosed with the cancer in in state court in St.
2013 Louis.

Medical evidence by
medical experts
continues to
support the
 cosmetic talc.
6 Mercury contents,

Misleading advertising
Number of claims
(Fair and lovely changing name)
against Hindustan
Using models already fair
Unilever of India
7
RECENTLY IN SRI  Sticker. Found by consumer
 Injection authorities.
LANKA  Injuries to health
8
A Vs. National Blood  The claimant was patient who Court held that the
was infected with hepatitis C directive purpose was to
Authority during the blood transfusion. make liability strict.
 Claimant sought damages
Lack of avoidability not
against NBA under Consumer taken into account
protection Act.

 NBA argues blood was not

defective...
 Accepting the risk.
 But unavoidable harm
9 Thus was caused people with the Total costs of asbestos
Asbestos most
decease will increase cancer litigation in USA alone
expensive mass tort will eventually reach
$200 to $275 billion
in Us
10 Plaintiff’s mother purchased a cotton Number of warning,
Cassells (a minor) vs.
day dress for plaintiff who is a minor precautions taken.
marks and spencers No negligence
Plaintiff and mother came home ,
plc (Ireland)
entering into living room plantation lit
the fire, there was no fire safeguard
Child had suffered severe extreme
burns
11
Chinta devi Vs Glacio  Claimant fi6.led an action based Court held failure to
on tort and alternatively seeking take care
ltd to recover from the defendant In design and
company sum of Rs. 2, 50,000 manufacturing
 Explosion and suffering injuries
Unsafe manufacturing
Liable.
 I. Roman- Dutch Law- Delict
II. English Law- Tort
III. Sri Lankan statues
1. Sale of Goods Ordinance
2. Consumer Affairs Authority Act No.9 of 2003
3. Unfair Contract Terms Act No.26 of 1997
4. Food Act No 26 of 1980 as amended
5. Telecommunication regulatory Commissions Act No.26 of
1996
6. Cosmetic Devices and Drugs Act No.27 of 1980
7. Appropriate regulations
8. •Other
S

CHAPTER 2
 I. Contract law
II. Tort of negligence
III. Strict liability

CONTRACT LAW
1. Transfer of products is generally under a contract.
2. Implied terms, exemption clause and rules as to description,

quality and fitness apply.

3. If the quality, fitness or performance of the product fails, if
the product id purchase/supply by a contract, on the ground
of breach of contract, party to a contract can claim damages.
4. However the Privity of Contract plays a vital role here.

PRIVITY OF CONTRACT

Third party to a contract had no rights and obligation towards a

contract in question.

1. Claimant who lacks the Privity of contract

2. Based on the negligence, no claim is accepted
under a contact.

These shortcomings were addressed under the tortious liability

particularly under the negligence theory.
  Warranties are statements by a manufacturer or seller
concerning a product during a commercial transaction.
 Warranty claims commonly require Privity between the
injured party and the manufacturer or seller;
 In plain English, this means they must be dealing with each
other directly.

Breach of warranty-based product liability claims usually focus on

one of three types:
(1) breach of an express warranty,
(2) breach of an implied warranty of merchantability, and
(3) Breach of an implied warranty of fitness for a particular
purpose.

Additionally, claims involving real estate may also take the form of
an implied warranty of habitability.

Express warranty claims focus on express statements by the

manufacturer or the seller concerning the product (e.g., "This
chainsaw is useful to cut turkeys").
The various implied warranties cover those expectations common
to all products (e.g., that a tool is not unreasonably dangerous
when used for its proper purpose), unless specifically disclaimed by
the manufacturer or the seller.
CHAPTER 3
1. Defective products means, it may be a
 Faulty design
 Faulty manufacturing
 Fault instructions

2. it ought to be dangerous
 Product that merely makes the product perform less
cannot be a ground for a product liability claim.
 Particular product must be dangerous to the claimant or a
consumer.

A product is defective “if the safety of the

product is not such as persons entitled to
expect”

3. What makes a product is defective, the deciding

factor is negligence

o A v National Blood Authority

4. All chattels are covered under the product liability

o An item of property other than the freehold land,
including tangible goods (chattels personal) and
leasehold interests (chattels real).
 5. Consumer can sue both seller and manufacturer

Grant V Australian knitting Mills Ltd

1. underwear case
2. Retailers also liable under the contract of sale.

6 . Nothing will prevent claimant suing the seller in tort

Nitrigin Eireann Teoranta V Inco Alloys Ltd (1992)

1. This case concerned on explosion in a chemical plant.
2. Following the escape of methane gas from a pipe supplied
by the defendant.
3. The gas escaped from a crack in a section of pipework in
1984.
4. But the same section had in fat cracked (but was
repaired) in 1983.
5. Proceedings were not issued until 1990.
6. The defendants argued that limitation ran from the time
of the first incident of cracking (1983) with the result that
the proceedings were time-barred.
7. The court held that the first incidence of cracking, being damage to the
pipe itself, constituted “pure economic loss” (as opposed to damage to
„other‟ property) and thus no cause of action arose.
8. However, the later incidence of cracking was caused a physical damage to
other property, consequently proceeding were allowed.
 WHO IS LIABLE

It established the principle that Manufacturer owes

Donoghue V a duty of care to the consumer
Stevenson
It Known as “narrow rule”

General rule Exception

Intermediate examination.

If the claimant wants to sue the Kubach v. Holland

defendant
A manufacturer who had no
It has to be proved that, the reason to believe that an
product reaches the Intermediate examination
consumer subject to the will take place (either by the
same defect as it had when consumer or by a third party)
it left the manufacturer. will be potentially liable

3.Manufacturer liability extent up to dangers discovered after

circulation
Duty to warn
E. Hobbs V Baxenden
Chemical Co.(1992)

X manufactured dodgy
Hamble fisheries ltd vs. Gardner(1999) engines and their engines were
sold by retailers to P.
D bought an action against X’
business.
 The dodgy engines caused
economic loss to P who sued
D for not warning them that
engines were dodgy, as D had
discovered

4.Manufacturer liability extents up to

 packing,
 labeling
 any warning
 instruction

2
Winward VS TVR engineering
fitter
3 The defendants
erector had been
Brown Vs Cotterill negligent in
putting
tombstone, which
fell over and
injured a child.
  A repairer was liable to a pedestrian
Stennett V who was injured when the wheel came
off a vehicle repaired by the
Hancock and defendant.
Peters
 The court held that the accident was
due to the negligence of the defendant in
the repairer of the vehicle.
 In this case the legal issue was the
Haseldine V Daw landlord was for the injury of the
claimant as a result if using the lift in
and Sons Ltd the landlord property

 Landlord had hired the engineers to

repairer

repair the lift and the reason of the

accident was that one of the
engineers failed to repack the
machinery properly, which left it
weakened for the next use.

 Held: landlord was not liable; his only

obligation was to ensure that the lift
was reasonably safe which was
demonstrated by the fact that he had
employed competent engineers to
inspect the machinery.

D held liable when c was injured by steam

Assembler

Howard V furness- which escaped from the boiler

Houlder Argentine D has to assemble the boiler after it had
been fixed
lies ltd.
 There is no general duty imposed,

Supplier
Watson V Buckley liability arises if they carelessly
represent the goods to be
Osborne harmless, without adequate tests.

Warnings are not to be treated

Hurley V Dyke as excluding liability, but as
discharging duty of care.
The plaintiff saw a car in the
distributor

Andrews V Hopkins defendant’s garage.

Defendant described that “it’s a

good little bus. I would stake
my life on it.”

Plaintiff agreed to purchase on

hire-purchase

The defendant sold it to a

finance company that had made
h-p agreement with plaintiff.

Plaintiff sued the defendant.

It was held that there was a

collateral contract with the
defendant who promised the car
was good condition.

The plaintiff thereby promised

to make agreement.
CHAPTER 4
 Claims under the contract are subject to Privity of
contract,
 Consumers cannot sue the manufacturer under this type
of liability
 The shortcomings of contractual liability are addressed in
tortious liability.
 Negligence largely deals with the Privity issue
 I. In negligence, where a purchaser/user of a defective
product does not have a contractual relationship with
the proposed defendant and statutory warranties are
not implied, the purchaser will have to claim remedies
under the doctrine of negligence.

II. Donoghue v Stevenson (1932) did not only established

the neighbourhood test but it also established the
principle that a manufacturer owes a duty of care to

the consumer called the narrower view.

Donoghue v Stevenson
 Lord Atkin states

A of products, which he sells in such a form as to show

that he intents them to reach the ultimate consumer
In the form in which they left him with no reasonable possibility of
intermediate examination, with the knowledge that the absence of
reasonable care in the preparation or putting up of the product will
result an injury to the consumer life or property, owes a duty to the
consumer to take that reasonable care.

Manufacturer of the
product He sells in such a form

He intents them to reach the ultimate consumer

No reasonable possibility of intermediate

examination,

Absence of reasonable care

Injury to the consumer

Owes a duty of care

 1. Nowadays a wider view of the ratio of Donoghue v
Stevenson has been adopted, the neighbourhood
principle.

2. Consequently product liability at common-law has

merged into the general law of negligence.

Carroll V Fearon Evans Vs. Triplex safety Glass

Co.Ltd

Faulty tire Windscreen was cracked

It caused Accident Injured to claimant
Claimant had proved on a Claiming dangers
balance of probability.
proved Number of reasons,
manufacture, fitting or
other factor
Not proved.
GENERAL TEST
Intermediate Examination

Supply chain will be investigated for the purpose of

ascertaining indemnify

If the manufacturer a reasonably expect intermediate

inspection would have identified the defect before use,
they can argue that the is broken.

Griffiths V Arch Engineering Co 1968

Fact
 A workman was injured by a portable There was no
grinding tool intermediate
 which he borrowed from the first examination of
defendant before is use by the
injured workman.
decision
The first defendant were liable since they had an
opportunity to examine the tool and did not do so

The second defendants were also liable since they had no

reason to believe that an intermediate examination would be
carried out.
 1. However if the intermediate inspection reveals a
defect, the manufacturer will probably avoid
liability.

This will also be the case if the intermediary ignores a

clear warning to examine the product before the use.

Kubach v Hollands
Manufacturer The school where Mere opportunity
stated the the chemical or possibility of
product should explosion intermediate
be tested before happened. examination will
use. not be enough to
Supplier does exonerate a
Therefore there not liable they manufacturer
was reasonable did not know of
possibility of an need to test the Manufacturer
intermediate product. must believe
examination. there was a
likelihood of
They escaped such inception
liability. taking place
 .

Hamble Fisheries Ltd v Gardner

X manufactured and their engines were sold by

retailers to P.

D bought X’s business. The dodgy engines caused economic loss

to P who sued D for not warning them that the engines were
dodgy, as D had discovered.

CA held that neither a manufacturer nor a person who took over a

manufacturer.

The question is “whether there was a special relationship of

proximity imposing a duty on the defendant to safeguard the
plaintiffs from economic loss” (Tuckey LJ) and this was not the
case here (the purchaser and manufacturer had no dealings with
one another).

In general manufacturers owe no duty to remote purchasers to

avoid causing them economic loss.

Only exceptionally could a manufacturer assume such a duty.

Grant V Australian case
1. This was a case about under pants.
Claimant had brought the underpants and it gives him
itching and skin rash.
Defendant argues that claimant should have shed the
under pants before wearing them,
Court held that this is not a reasonable for a consumer not
to wash their underpants before they wore them.
Causal connection does not broken

Farr Vs. Butters Bros

1. This was case about a crane was supplied and had to be

assembled on site
2. Claimant has noticed the crane was defective, but still
assembled it and injured.
3. Manufacturer not liable, because claimant did have an
opportunity to inspect the defects
4. This was an intervening act.
Andrews V Hopkinson
The plaintiff saw a car in the defendant’s garage.

Defendant described that “it’s a good little bus. I would stake my

life on it.”

Plaintiff agreed to purchase on hire-purchase

The defendant sold it to a finance company that had made h-p

agreement with plaintiff.

 Plaintiff sued the defendant.

 It was held that there was a collateral contract with

the defendant who promised the car was good
condition.
 The plaintiff thereby promised to make agreement.
 The cars condition was not obvious to consumer. The
chain of causation was intact.
 1. Proof of negligence and that the defendant owed duty lie with
the claimant.

2. Applicability of res ipsa loquitur –

 whether the claimant has produced sufficient evidence
to justify the inference of negligence
Defendant may find himself in a res ipsa loquitur and thus having
to discharge an evidential burden.

The defendant must liable for failing to take reasonable care, not to
ensure that the products are perfect.

Grant case
The heavy evidential burden that may require on a manufacturer
once the situation speaks for itself.
•Possibility of accepting alternate cause
•Grant case
•Evans v. Triplex Safety Glass Co.Ltd[1936] 1 AER 283
•Mason v. Williams & Williams Ltd [1955] 1 WLR 549
•Carroll v. Fearon[1998] PIQR 416

Carroll V Fearon Evans Vs. Triplex safety Glass

Co.Ltd

Faulty tire Windscreen was cracked

It caused Accident Injured to claimant
Claimant had proved on a Claiming dangers
balance of probability.
proved Number of reasons,
manufacture, fitting or
other factor
Not proved.
CHAPTER 5
Escalator Heseltine Vs Daw
Motor Car Andrews Vs Hoplkins
Garments Grant Vs Australian
Knitting Mills
Container/package/label Donoughue case

Food and Drink Mcdonald’s cases

kiosk Paine V Colne Vally
Electricity Supply Co.
tombstone Brown Vs Collerill
Hair dye Watson V Buckley
Industrial chemical Vacwell Engineering Co.Ltd
V BDH chemicals Ltd(1971)
Asbestos sheeting
CHAPTER 7
 I. Product liability covers

II. It can sue the value of the property, but cannot sue
financial loss for the failure of the product to fulfil its
functions.
III. Manufacture will liable all the time unless chain of
intermediation is not broken.
IV. There is no a standard as to quality of the product.

Re economic Re economic loss would apply when

Junior Books V Veitchi Co
loss the required of special and unusual
Ltd relationship subsists between parties.
Damages to Where there is a defect in property
Murphy Vs Brentwood
other causing damage to another person of
property property, tort law can be used by the
person who suffered damages.
Failure of a
Tatterborn (2002) LM &
component
causes CLQ
damages
maybe
claimed
Sub- Sub-contractor installing elements
Murphy Vs Brentwood
contractor of building, which then collapses,
liable and causes damages to the whole
building may be liable.

Negligently
Andrew Weir Shipping
manufactured
component, Ltd v Wartsila Uk Ltd.
replacement or
added part,
Manufacturer
liable to the
damages to the
rest of the
article.
A proprietary liquid waterproofing
Aswan engineering compound called Lupguard was stacked in
Packaging
plastic pails in Kuwait in full sunshine. The
Establishment Co. v pails collapsed and the Lupguard was lost.

Lupdine Ltd Plaintiffs lost quantity of waterproofing

agent because containers collapsed in high
temp in Kuwait.
Action against manufacturer of containers
failed – damage not reasonably foreseeable.

Dangerous Knowledge will tend to take the

D&F Estate Ltd Vs Church
defect position as “author of his own loss”
discovered and commissioners
repaired before
harm