Special Topics in Negligence

AuthorPhilip H. Osborne
Negligence law is not static. It is constantly in f‌lu x, adjusting to new activ-
ities, unusual fact situations, shifts in societal attitudes, unusual losses,
and the public’s increasing demands for protection from risk-laden con-
duct. In the past few decades, imagi native and innovative lawyers have
pushed the envelope of negligence liability to secure gre ater and greater
protection of their clients. In this ch apter, a number of special and top-
ical issues are considered in more depth. Most illustrate the moulding
of negligence principles to new claims, new situat ions, new losses, or
new defendants. Some concern the interaction between legislative regu-
lation and negligence principles and the accountability of governmental
institutions. Another involves the legislative codif‌ication of negligence
principles that has t aken place in the f‌ield of occupiers’ liability. Others
relate to the manner in which negligence law has addressed the un ique
aspects of various professional activities. Collectively they illust rate the
inherent f‌lexibility of negligence law, the inf‌luence of social policy, and
the dynami sm of the fault concept, and they point to the future develop-
ment of the law of negligence in this centur 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 ch allenge, and the initial duty to take
reasonable care to manufacture products that are free of dangerous
defects — recognized in Donoghue v Stevenson1 — has been comple-
mented by a duty to warn of the inherent dangers of products and a
duty to design products with re asonable care. Courts have, however,
proceeded more cautiously in respect of the duty to warn a nd to design
with care. The reason is that manufacturing defect s normally arise
in isolated rogue products. The defect is the result of a mist ake or
malfunction in the defenda nt’s manufacturing or quality control sys-
tems. In practice, therefore, the extent of liabilit y will not normally be
unmanageable or overly burdensome. In contrast, li abil ity 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 defend-
ant’s products and may place undue burdens on manufacturers.2 Th is
differentiation among the obligations of ma nufact urers is also ref‌lected,
in a different way, in American product liability l aw. Strict liability is
the norm for manufacturing defect ca ses but, in cases of desig n 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 sel ls in such a form as to
show that he intends them t o reach the ultimate cons umer in the
form in which they left h im with no reasonable po ssibility of inter-
mediate exam ination, and with t he knowledge that absence of rea-
sonable care in the prep aration or putting up of the products w ill
result in an injur y to the consumer’s life or propert y, owes a duty to
the consumer to ta ke reasonable care.3
1 M’Alister (or Donoghue) v Stevenson, [1932] AC 562 (HL) [Donoghue].
2 Class act ions are increasingly com mon where many consumers have bee n put
at risk by a fai lure to warn of dangers or a failu re of design. See, for example,
Andersen v St Jud e Medical Inc, 2012 ONSC 3660, dealing with Sil zone-coated
prosthetic heart valves.
3 Donoghue, above note 1 at 599.
Special Topics in Negligenc e 147
This passage outlines t he primary obligation of manufact urers. It is to
take reasonable care t hat their products are manufactured in compli-
ance with their intended sp ecif‌ications and design and that they are not
dangerously defective.
Lord Atkin’s formulation of this duty of care was e xpressed in cau-
tious and guarded ter ms. His language ref‌lected both the novelty of the
case and the state of negligence law at th at 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 t he prod-
uct must reach the consumer in the same form in which it left the
manufacturer initi ally gave rise to suggestions that the product must
be in a sealed package or bottle. Now it is ta ken to ref‌lect the normal
requirement of cause-in-fact and the need to show that the d amage
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 ca se, 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 inter vening 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 ma nufacturer and
the third party will be held jointly and several ly liable.4 A failure by
the plaintiff to inspect the product suggests contributory negl igence,
which was a complete defence when Donoghue was decided. Now dam-
ages may be reduced on account of the plaintiff ’s fault but the defend-
ant will not be exonerated from all li ability.
The duty of care currently extends beyond the manufacturers
of products. It rests on the makers of component parts, a ssemblers,
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
4 But see Viridian Inc v Dresse r Canada Inc, [2002] AJ No 937 (CA), where it was
held that a defenda nt supplier of a component part was not under a duty of c are
to the plaint iff purchaser of a product manu factured by a third par ty. An inter-
mediate exa mination of the component part by t he third party wa s anticipated
and it would have reveale d the defect. The defendant did not, however, know
the use to which t he component would be put, and it needed furt her engineer-
ing by the thi rd party before it could be used .

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