Special Topics in Negligence
| Author | Philip H. Osborne |
| Profession | Faculty of Law. The University of Manitoba |
| Pages | 139-248 |
139
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 i n societal attit udes, unusual
losses, and the public’s increa sing demands for protection from risk-
laden conduct. In the past few decades, imaginative and innovative law-
yers have pushed the envelope of negl igence liability to secure greater
and greater protection of their clients. In this chapter, a number of spe-
cial and topical issues a re considered in more depth. Most il lustrate
the mouldi ng of negligence principles to new claims, new situations,
new losses, or new defendants. Some concern t he interaction bet ween
legislative regulation and negligence principles and the accountability
of governmental institutions. Another involves the legi slative codifica-
tion of negligence principles that has taken place in the field of occupi-
ers’ liabilit y. Others relate to the manner in which negligence law has
addressed the unique aspects of various profes sional activities. Col-
lectively they illustrate the inherent flexibil ity of negligence law, the
influence of social policy, and the dynamism of the fault concept, and
they point to the future development of t he law of negligence in this
ce nt u r y.
THE LAW OF TORTS140
B. proDUCts lIaBIlIty
The ma ss production and consumption of consumer products in the
twentieth centur y presented a considerable challenge to tort law. Neg-
ligence l aw responded to this challenge, and the initial duty to take
reasonable care to manufacture products that are free of dangerous de-
fects — recognized in Donoghue v. Stevenson1 — has 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 re sult of a mista ke or malfunct ion in
the defendant’s manufacturing or quality control system s. In practice,
therefore, the extent of liability will not normally be unm anageable
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. Thi s di fferentiation
among the obligations of manufacturers is also reflected, in a different
way, in Amer ican product liabilit y law. St rict 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] manufact urer of products, which he sells in such a form a s to
show t hat he intends t hem to r each the ultim ate consumer in the
form in which they left him with no reasonable possibi lity of inter-
mediate examination, a nd with t he knowledge th at absence of rea-
sonable care in the prep aration or putting up of the product s will
result in a n injury to the consu mer ’s life or propert y, owes a duty to
the consumer to ta ke reasonable care.2
This passage outlines the pr imary obligation of manufacturer s. It is to
take reasonable care that their products are manufactured in compliance
1 M’Alister (or Donoghue) v. Stevenson, [1932] A.C. 562 (H.L.) [Donoghue].
2 Ibid. at 599.
Special Topics in Negligen ce 141
with their intended specifications and design and that they are not dan-
gerously 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 t he state of negligence law at t hat time. Hi s expression of t he
scope of t he m anufacturer’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 t he consumer in the same form in which it left t he manu-
facturer initia lly gave rise to suggestions that t he product must be in a
sealed package or bott le. 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 deter ioration 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 inter-
mediate examination of the product by a third party or the plaintiff
reflected the prevailing judicial attitude to intervening acts and to con-
tributory negligence. Today, the failure of a third party, such as a retail-
er, 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 ins pect the product suggests contributory negligence, which was a
complete defence when Donoghue was decided. Now damages may be
reduced on account of the plaintiff’s fault but the defendant 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 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 di ssenting judgment in Donoghue, Lord Buck master feared
3 But see Viridian Inc. v. Dresser Cana da Inc., [2002] A.J. No. 937 (C.A.), where it
was held that a defe ndant supplier of a component part was not u nder a duty
of care to the pla intiff purchaser of a prod uct manufactured by a thi rd party.
An intermed iate examination of the c omponent part by the third pa rty was
anticipated and it wou ld have revealed the defect. However, the defend ant did
not know the use to wh ich the component would be put and it needed furt her
engineer ing by the third part y before it could be used.
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