Special Topics in Negligence
Author | Philip H. Osborne |
Pages | 145-264 |
145
CHAPTER 3
SPECIAL TOPICS IN
NEGLIGENCE
A. INTRODUCTION
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, imaginative and innovative lawyers have
pushed the envelope of negligence liability to secure greater and greater
protection of their clients. In this chapter, a number of special and top-
ical 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 legislative regu-
lation 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 addressed the unique
aspects of various professional activities. Collectively 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 develop-
ment of the law of negligence in this century.
THE LAW OF TORTS146
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
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 reasonable 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 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 sys-
tems. In practice, therefore, the extent of liability 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 This
differentiation among the obligations of ma nufact urers 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.3
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 e147
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 sp ecifications 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 ter ms. 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 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 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.4 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 defend-
ant 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
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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