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 i n 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 issue s 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 interact ion between leg-

islative regulation and negligence principles and the accountability of

government al inst itutions. A nother involves the legislative codif‌ication

of negligence pr inciples t hat has t aken place in the f‌ield of o ccupiers’

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 t he fault concept, and they point

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

THE LAW OF TORTS132

B. PRODUCTS LIABILIT Y

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 t ake

reasonable care to manufacture products that are free of da ngerous 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 aris e in isolated

rogue products. The defect is the result of a mist ake or malfunction in

the defendant’s manufacturing or quality control systems. In pract ice,

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 a lso 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 liabilit y began with a defective bott le of

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

[A] manufacturer of products, which he sel ls 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 t he preparation or putting up of the pro ducts 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 primar y 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 nce 133

Lord Atki n’s formulation of t his 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 sa me form in which it left the

manufacturer initially gave rise to sug gestions 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 c ase, 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 insp ection is unlikely

to exonerate the defendant. It is more likely that the ma nufacturer and

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

the plaintiff to i nspect the product suggests contr ibutory negligence,

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

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

dant will not be exonerated from all l iability.

The duty of care currently extends b eyond the manufacturers of

products. It rests on the makers of component part s, assemblers, in-

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

those who may foreseeably be injured by t he 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.

3 But 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.