Special Topics in Negligence

• Author: Philip H. Osborne
• Pages: 126-221

126

A. Introduction

Negligence law is not static. It is constantly in flux, adjusting to new

activities, unusual fact situations, shifts in societal attitudes, unusual

losses, and the public’s increasing demands for protection from risk-

laden conduct. In the past few decades, imaginative and innovative

lawyers have pushed the envelope of negligence liability to secure

greater and greater protection of their clients. In this chapter, a num-

ber of special and topical issues are considered in more depth. Most

illustrate the moulding of negligence principles to new claims, new sit-

uations, new losses, or new defendants. Some concern the interaction

between legislative regulation and negligence principles and the

accountability of governmental institutions. Another involves the leg-

islative codification of negligence principles that has taken place in the

field of occupiers’ liability. Others relate to the manner in which negli-

gence law has addressed the unique aspects of various professional

activities. Collectively they illustrate the inherent flexibility of negli-

gence law, the influence of social policy, and the dynamism of the fault

concept, and they point to the future development of the law of negli-

gence in this century.

Special Topics in

Negligence

chapter 3

B. Products Liability

The mass production and consumption of consumer products in the

twentieth century presented a considerable challenge to tort law. Neg-

ligence law responded to this challenge, and the initial duty to take rea-

sonable care to manufacture products that are free of dangerous defects

— recognized in Donoghue v. Stevenson1— has been complemented by

a duty to warn of the inherent dangers of products and a duty to design

products with reasonable care. Courts have, however, proceeded more

cautiously in respect of the duty to warn and to design with care. The

reason is that manufacturing defects normally arise in isolated rogue

products. The defect is the result of a mistake or malfunction in the

defendant’s manufacturing or quality control systems. In practice,

therefore, the extent of liability will not normally be unmanageable or

overly burdensome. In contrast, liability arising from a failure to warn

of inherent dangers or a failure to use reasonable care to design a safe

product may condemn a complete line of the defendant’s products and

may place undue burdens on manufacturers. This differentiation

among the obligations of manufacturers is also reflected, in a different

way, in American product liability law. Strict liability is the norm for

manufacturing defect cases but, in cases of design flaws and a failure to

warn, fault is often required.

1) Manufacturing Defects

The modern law of products liability began with a defective bottle of

ginger beer and the case of Donoghue v. Stevenson. Lord Atkin stated:

[A] manufacturer of products, which he sells in such a form as to

show that he intends them to reach the ultimate consumer in the

form in which they left him with no reasonable possibility of inter-

mediate examination, and with the knowledge that absence of rea-

sonable care in the preparation or putting up of the products will

result in an injury to the consumer’s life or property, owes a duty to

the consumer to take reasonable care.2

This passage outlines the primary obligation of manufacturers. It is to

take reasonable care that their products are manufactured in compli-

Special Topics in Negligence 127

1M’Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 (H.L.) [Donoghue].

2Ibid. at 599.

ance with their intended specifications and design and that they are not

dangerously defective.

Lord Atkin’s formulation of this duty of care was expressed in cau-

tious and guarded terms. His language reflected both the novelty of the

case and the state of negligence law at that time. His expression of the

scope of the manufacturer’s duty has now been loosened and broad-

ened in almost every conceivable way.

The duty of care extends to all consumer and commercial products,

including buildings. The requirement in Donoghue that the product

must reach the consumer in the same form in which it left the manu-

facturer initially gave rise to suggestions that the product must be in a

sealed package or bottle. Now it is taken to reflect the normal require-

ment of cause-in-fact and the need to show that the damage was caused

by the manufacturer’s negligence and not by the negligence of some

other person or by the normal deterioration of the product through

wear and tear. The suggestion, in the case, that the defendant would be

protected from liability if the defect could be discovered by an interme-

diate examination of the product by a third party or the plaintiff reflect-

ed the prevailing judicial attitude to intervening acts and to

contributory negligence. Today, the failure of a third party, such as a

retailer, to discover a defect by reasonable inspection is unlikely to

exonerate the defendant. It is more likely that the manufacturer and

the third party will be held jointly and severally liable.3A failure by the

plaintiff to inspect the product suggests contributory negligence,

which was a complete defence when Donoghue was decided. Now dam-

ages may be reduced on account of the plaintiff’s fault but the defen-

dant will not be exonerated from all liability.

The duty of care currently extends beyond the manufacturers of

products. It rests on the makers of component parts, assemblers,

installers, repairers, and building contractors. Liability is restricted to

those who may foreseeably be injured by the defective product but it is

difficult to imagine a situation where a consumer, a user, or even a non-

user of a defective product who is injured by it would not satisfy that

test. In his dissenting judgment in Donoghue, Lord Buckmaster feared

128 The Law of Torts

3 But see Viridian Inc. v. Dresser Canada Inc., [2002] A.J. No. 937 (C.A.) (QL),

where it was held that a defendant supplier of a component part was not under

a duty of care to the plaintiff purchaser of a product manufactured by a third

party. An intermediate examination of the component part by the third party

was anticipated and it would have revealed the defect. However, the defendant

did not know the use to which the component would be put and it needed fur-

ther engineering by the third party before it could be used.