Don't leave a snail in thy neighbour's drink!

• Author: Fenwick, Fred R.

"Yuk! There's a snail in my beer bottle. Just watch me sue that so and so bottling company!"

Many of us have actually found something unsavoury in a bottle now and then or had an unfortunate experience with a product that didn't work or maybe did something dangerous. The snail in the beer bottle story is a famous one in English common law. (Actually it was a bottle of ginger beer and no one but the plaintiff ever saw the offending mollusk). Much of our modern law of negligence is built on the way that the courts in that case made the bottler liable for damages to the consumer even though the bottler had no direct contract with the actual consumer.

In 1932, the English Court of Appeal stated that the biblical injunction to "love thy neighbour," in a modern world meant "thou shalt not hurt thy neighbour" and defined a neighbour as someone you reasonably should have in your consideration concerning your acts. That might be an actual customer; i.e., someone that you had a direct contact with, but it also might be someone who is the end user of your product after it has passed through several hands. For these neighbours, you had to exhibit a reasonable standard of care.

And if you don't think that the financial risks posed to a manufacturer by an injured consumer are significant just ask the Canadian Red Cross, or Dow Corning, giant corporate entities who were brought to their knees with HIV and Hepatitis-infected blood and rupturing breast implants. So if you are manufacturing a product, what to do? How can you protect yourself against product liability law suits? What are the standards you have to live up to, and who drinks ginger beer anymore anyhow?

Negligence and the Standard of Care

This is the usual modern lawsuit for any injured person. "You ought to have had me in your consideration and you behaved in a substandard or negligent fashion." This holds true for both automobile accidents (you were speeding and not paying enough attention to the crosswalk) and products liability (you were rushing the design process and not paying enough attention to product testing). Obviously, if someone is hurt by your product, you are not going to be able to stop them from pointing a finger at you. But the point is not just that they were hurt, but that they were hurt because your product was substandard. How then would you protect yourself against an allegation that their injury was caused not only by a failure of your product, but by that product failing...