Special Topics in Negligence

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 131-233

131

CHAPTER 3

SPECIAL TOPICS IN

NEGLIGENCE

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, i maginative and innovative law-

yers have pushed the envelope of negligence liability to secure greater

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

cial and topical issues are considered in more depth. Most illustrate the

moulding of negligence principles to new claims, new situations, new

losses, or new defendants. Some concern the interaction between leg-

islative regulation and negligence principles and the accountability of

governmental institutions. Another involves the legislative codif‌ication

of negligence principles that has taken place in the f‌ield of occupiers’

liability. Others relate to the manner in which negligence law has ad-

dressed the unique aspects of various professional activities. Collective-

ly they illustrate the inherent f‌lexibility of negligence law, the inf‌luence

of social policy, and the dynamism of the fault concept, and they point

to the future development of the law of negligence in this century.

THE LAW OF TORTS132

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

reasonable care to manufacture products that are free of dangerous de-

fects —recogn ized in Donoghue v. Stevenson1—ha s been complemented

by a duty to warn of the inherent dangers of products and a duty to de-

sign 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

manufacturi ng defect cases but, i n 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 re asonable care.2

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

take reasonable care that their products are manufactured in compli-

ance with their intended speci f‌ications and design and that they are not

dangerously defective.

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

2Ibid. at 599.

Special Topics in Neglige nce133

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

tious and guarded term s. 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 prod-

ucts, including buildings. The requirement in Donoghue that the prod-

uct must reach the consumer in the same form in which it left the

manufacturer initially gave rise to suggestions that the product must

be in a sealed package or bottle. Now it is taken to ref‌lect the normal

requirement of cause-in-fact and the need to show that the damage

was caused by the manufact urer’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 intermediate examination of the product by a third party or the

plaintiff ref‌lected 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.3 A 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, in-

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

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

diff‌icult to imagi ne 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

that if one step was taken f‌ifty would follow. That has proved to be a

conservative estimate.

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

was held that a defend ant supplier of a component part was not under a dut y

of care to the pla intiff purchaser of a pro duct manufactured by a th ird party.

An intermed iate examination of t he component part by the third p arty was

anticipated and it wou ld have revealed the defect. However, the defend ant did

not know the use to whic h the component would be put and it needed furt her

engineeri ng by the third part y before it could be used.