Tort Law
Tort and negligence
Negligence is the most important tort in terms of cases and money involved. There are a lot of
rules in tort that have nothing to do with negligence (N):
nuisance: tort which requires an interest in land
trespass: to the person (battering…); to goods (stealing a car)
try to persuade someone to break a contract
false imprisonment: when held against your will (and if people knew: kidnapping)
malicious prosecution
harassment…
Therefore N is the most important. But they have in common the remedy: financial
compensation for the loss that has been caused or order for restitution (equitable remedies:
common law and equity are used but have significant implications.
Equity is discretionary. Therefore no equity if other remedy is possible).
Quite often the remedy is not only tortuous: when a crime is committed, then tort which will
bring the guy to prison but also can ask for compensation (criminal and civil action:
difference in burden of proof: the crime must be proved beyond reasonable doubt, and the tort
by balance of probabilities. Ex: case in rape where the crime wasn't recognized but the tort
was…
Damages payable in contract: contractual damage for loss of bargain: put in the position you'd
have been in had the contract been completed
Damages payable in tort: calculated in order to put the plaintiff in the position he had been in,
had the tort not have been committed. It is very difficult to put a money value.
Tort concerns the relationship between strangers.
Negligence
Individuals should in general bear their own misfortune unless there is some good reason on
shifting the loss on another.
Definition from Winfeld: breach of a legal duty to take care, resulting in damage undesired by
defendant to the plaintiff.
Tortuous liability arises from the breach of the duty primarily fixed by law. Such duty is to
care. People are guilty and redressable by an action for unliquidated damages.
Criticisms:
it depends on the defendant having money! This means that no point in suing anyone except if
they are insured.
Victim suffering the same tort will not get the same compensation
The focus is on who caused the incident and not upon who needs what
It is an individualist response
It is not a very efficient system: very expensive
Problem of obtaining the proof of what caused the accident
Vicarious liability: if injury caused y an employee in the course of work, the employer will be
liable
Joint and several liability: when more people led to the accident, all of them ar liable for the
whole (then they can sue each others for recovery).
In tort there is full compensation, there is money alone. In social security scheme, monthly
payments that can be reassessed
In tort system, insurance is private. In early 1990, 14000 people in UK killed
accidentally (100 on railways, 300 at work, 5000 accidents at home, 1000 surgery, 600
homicides, 4000 on road)
When we decide to go on with torts, there are tool mechanisms by which policies can be
affected by the government. Tort is affected by collective purposes.
Emphasis on limited law which moved to the importance in pursuing individual goals. Tort
law is itself concerned with public policy, with goals like equity, protection of the
environment, protection of disabled.
Disabled people: social definition focuses rather on the barriers and obstacles which a society
puts in a way to a physically or mentally impaired individual. Ex: wheel chair: guy is disabled
in many buildings that are not appropriate. Remedies for the disabled are not far from
negligence.
Physical impairment: US&UK have notions of individual liability. It has been in the center of
politics.
If someone is disabled by an accident and someone is at fault, then this someone is fortunate.
Since 1960, professor Atiya insisted that negligence should be understood as accident
compensation and therefore treated alongside social security and private nuisance. Disabilities
caused by a fault of a guy is negligence. If not it's bad luck (it's a disease unless it's man
made)
The Pearson Commission was asked to consider all negligence and accident affairs. 1970: 6
millions disabled in UK. 6.5% of them gets damages.
In order to have NEGLIGENCE:
must be a duty of care
breach of that duty
result in a damage.
It seems these conditions have equal weight. But they raise different questions. They are not
easy to separate.
The essence of it is reasonableness, a very subjective concept.
Common Law: every case going on appeal could be decided either way and yet be consistent
with public policy. Negligence is a fault-based tort.
Breach of a duty
In many cases, no duty of care have to be investigated because they are obvious. The question
is therefore: is there a breach of that duty.
It's a question of standards. The idea of reasonableness is linked with how people react.
Blyth v Birmingham Waterworks 1856: Negligence is the omission to do something which
the reasonable man would do or not do something which the reasonable man would not do.
In 1943: the standards of the reasonable man is a subjective test. It contrasts with criminal law
which focuses on the state of mind of the criminal. In a negligence action, the state of mind is
irrelevant. The courts do not take into account the experience: therefore a newly experienced
surgeon will be held as much liable as an ancient.
Exceptions:
children: the court will consider a reasonable child of the same age as the defendant
a specialist will be held to the standard of the specialization
à medical cases are very difficult because judges are not doctors and they only rely on
evidence:
Whitehouse v Jordan: baby delivered by forceps with brain damage. The obstetrician
supposedly was negligent. But the HoL said that although the defendants actions probably
constitute an error of judgement but it didn't amount to negligence. British courts have
allowed a margin of error which doesn't amount to negligence! It demonstrates a judicial
tendency to defer to standards which are set by the profession itself. If it could be shown that
what the doctor have done had a body of opinion in the profession to support the action, then
the case could be dismissed.
In a 1985 case, when there was a conflict of opinion between experts as to what constitute a
good practice, the judges decided it wasn't for them to decide which opinion was best.
1988: doctor did not warn that the sterilization operation might not be successful. But the
doctor showed that 50% fails to give such warnings and therefore it was good practice.
1995: Dr Freilas v O'Brien: a surgeon performed an operation without x-ray proof of what
was supposed to be wrong. Operation failed. Medical opinion would say that it was not
reasonable to operate without x-rays, but defendant could show that a minority surgeon
would have acted the same way. So there was no negligence. But the judge did not like
condemning without the Professional Association agreeing.
1994: Doctor liable having failed to tell patient of the risk of the treatment even though he
acted in accordance with medical practices.
Bolitho v Hackrey Council 97: evidence was shown that what was done to the patient was
accepted by a minority of doctors. But negligence is still possible.
In the US it is very different, judges regards themselves as having a role of policing the
professionals. In most states, obligation to disclose all the risks involved in the medical
treatment which the prudent patient would find useful before giving its consent.
In UK, HoL 1985 explicitly considered the US consent: a question had an operation to relieve
pain of shoulder (with 1% risk to be paralyzed) and got paralyzed. Sued and HoL dismissed
the risk: the doctor was under no obligation to disclose the risk. The legal standard of
disclosure was that of the reasonable doctor rather than the prudent patient. It is not an
objective test. Australian courts have adopted the US view.
Against that: the policies concerns:
danger that too much liabilities will increase Public Health care
patients should be protected against doctors intrusion
Other factors in accessing that reasonable care:
probability of the thing occurring
seriousness of the event at risk if it did happen
practicality and precautions
consideration of the social value of the defendant's activities.
probability
Bollor v Store: a batsman stroke a cricketball which shot it on Mrs. Store who suffers
concussion and sued; HoL said that no negligence because although the risk of injury was
foreseeable, it is very unlikely.
Hailey v LEB: the plaintiff was blind and fell because of paving excavation. HoL said that
defendant was negligent. Reasonable foreseeability: very ambiguous so it requires the
intuition of the Judge
seriousness of injury
Paris v Stepney BC: the plaintiff lost the sight at work (he was already blind of 1 eye):
employers were negligent with not giving him goggles.
Walker V Northonbland County Council, 1995: a plaintiff employee sued the employer
because 2 nervous breakdown because of the social work. The court said that not liable with
regard to the 1st breakdown but they were for the second because they are interrelated. The
Wagonmound case was tied up and defendant was carried out.
practicability and precaution
Latimer v AEC: Latimer slipped on the floor and injured. HoL said that they were precautious
enough to avoid the accident.
social value
The more useful the defendant's act is, the more justifiable the risk taken is.
Weighing nature of risk and cost of taking precaution against the objectives of the defendant's
activity.
Only private nuisance is a tort: interfering with the enjoyment of someone in land. But public
nuisance (dig up a road) : if it is a crime and not a tort, the only person who can sue are the
people who can prove that their loss is exceptional (as opposed to the others).
Donaghue v Stevenson: the law does not take cognizance of carelessness in the abstractà only
when there is a duty of care (we do not give duty of care to everyone even if we can foresee
that damage can occur).
Question: when do we know we have a duty?
Sometimes situation where no duty of care until Donaghue: manufacturer/consumer;
occupier/ trespasser.
Now: Donaghue, HoL: the manufacturer owed a duty of care to the ultimate consumer even
when there was no contract between them or with the retailer.
“ you must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbors. Who by law is my neighbor? The answer seems to
be persons that are so closely and directly affected by my act that I might reasonably to have
them in contemplation as being so affected, when I am directing my mind to the acts or
omissions which are called in question.”
à closeness or proximity
= reasonable foreseeability. But the category of negligence is never closed so this category
expanded.
Home Office v Dorset Yacht 1970: We can and should say that the principle ought to apply
unless there is some explanation of its exclusion à reasonable foreseeability ought to be the
governing criteria in determining whether there is a duty of care.
Anns v LB of Merton, 1977: suit by occupier of premises found that those premises were
defective. They were not the original purchaser so no action in contract against the builders.
And the guarantee was expired.
But you can sue for any tort feaser therefore sued LB of Merton because it exercised its power
under legislation to supervise the construction of building in Merton and the foundation had
not been inspected by the council inspectors (plus the LB has the deepest pocket): the local
authority had accepted its duty that their newly constructed building are safe.
Question: did a sufficient degree of proximity of neighborhood exist?
Were there any other consideration concerned relevant to determine whether or not a duty of
care was owed?
If the risk is reasonably foreseeable then there is a duty of care unless it is exceptionally said
otherwise. Here the LB could foresee the risk, so there was negligence. It's a broader situation
that negligence was seen in… “The use of the word policy indicates no more than that the
court must decide simply whether there is or not a duty but also whether there should be one.
Rondel v Worsley: barristers don't have any duty of care to persons they represent.
But there are some situations outside of the duty:
absence of duty to rescue to strangers.
But after, great outbreak of liability and crisis because everyone looked for local authorities to
sue them (under Thatcher government).
Yuen Kun Yen v AG of Hong Kong: One of the duty of commissioner in HK was to compile
a register of deposits of licenses for companies. Mr Y had deposit large sum of money on the
register. Then company went into liquidation and Y lost his money and said that affaires were
conducted fraudulently. No reasonable care of commissioner in licensing and registering the
company.
Hill v Chief Constable of West Yorkshire: Mrs Hill was the mother of a student who was
murdered by a mentally ill person. Court said that she needs to bring proof that he was insane.
She said that the police was very incompetent and she sued. Was there circumstances that
police owed a duty of care in relation to the activities of the criminal? Necessity of a
foreseeable risk in order to have a duty of care: but it is insufficient to establish the duty. In
1990, Caparo v Dickman: restriction to liability found under Anns.
Osmar v Farguson: Court of appeal looked at Hill: no liability of policemen in a field that they
were not competent. Then the European court of Human rights: the decision was not
consistent with art 6 of the Declaration about fair trial.
But here it was clear that police said that was going to do something and the Farguson were in
real danger.
Swinney : someone gave information to identify a guy who killed a policeman. But she said
that she didn't want to be traced. But police recorded her warning. The tape was stolen and the
suspect could trace her : threat of violence and she got a nervous breakdown. So she sued.
Police said that no duty of care because of Hill. But Court of appeal said that immunity of
police concerning activities in relation to investigations is not absolute but has to be weight
with other considerations of public policy. She was distinguished because she was particularly
at risk therefore it may give rose to a duty of care and ? of confidentiality had been assured.
Therefore police had to do what they suggested they would do. à In the balancing exercise, we
must give weight to competing interests of the plaintiff as opposed to the community.
Osman v UK: Public policy could not dictate that police should be immune. Barret v Enfield
London BC: on basis of Osman v UK, people will have to go to the European Court. In the
Osman decision, the child had been injured: damages could therefore help to improve his life.
Economic Loss
Principle: damages for pure economic loss are not recoverable through negligence but
economic loss arising directly from physical harm does.
Spartan Steel v Martin: Because of the defendant negligence, the cable carrying electricity
was cut through: interrupted the supply for 14h. To avoid the metal to solidify, the plaintiff
had to use another process: the value of metal was reduced and plaintiff lost a lot of money.
The could said that he could only recover the loss in value of the metal that was in the process
of being made: the rest was purely economic loss (speculation on what would have been
produced).
Question of insurance
Murphy v Brentwood: the property he occupied had been defectively built. So he sued the
local authority for the price they could have obtained as opposed to the price they got because
of defective building à pure economic loss à not recoverable.
Exception: negligent misstatement.
Hedley Byrne v Heller: The plaintiffs made contract with clients of HB: they asked bankers to
obtain a report on financial stability they had business with. The company bankers gave a
careless reference which suggest that company was stable. As a result they suffered losses on
relying on this reference. Plaintiff sued the bank because of “negligent misstatement”. But
there was an express disclaimer. House of Lords said that they would have been liable but the
disclaimer prevented liability in that case.
No precise rule but liability would not lie to a large indeterminate class of plaintiff. There
must be some special relationship with defendant which resulted in defendant's taking
responsibility for the statement made (solicitors, stockbrokers…)
Caparo v Dickman: 4 conditions had to be fulfilled:
defendant must be fully aware of nature of transaction which the plaintiff had in
contemplation as a
result of receiving the information
the information must either have been communicated directly or defendant must have known
that the information would be given to claimant.
The defendant must be able to anticipate that plaintiff will rely on the information
The purpose for which the plaintiff does rely on the information must be a purpose connected
with the interest which it is reasonable to demand that the defendant protect.
When information was given in context in which the assumption the pliantiff should look at
his own interest, can be displaced.
Smith v Bush: about a mortgage application. House surveyed to ensure its value. Duty of care
is owed by the surveyors to the ultimate purchaser. When it come to the disclaimer, il is
possible to refer to unfair contract term Act even if no contract was formed between them. à
idea that there may be an acceptance of liability in the provision of services (a voluntary
assumption of liability).
Spring v Guardian assurance: M. Spring was dismissed from a company. He looked for
another job but needed a reference from old company about aptitude, competence… The
reference was horrible! The judge said that this reference lead to his unemployment. If they
had been accurate, he might have been employed. Spring sued for negligent misstatement
about the reference.
The preparation and writing of reference is one of qualified privilege: as long as the writer of
the reference is not malicious then he will be privileged.
But there was no possibility of reliance by the person who was harmed. Therefore they had to
expand the principle. But court said that it should be sufficient to cover a situation like this
even though he shouldn't have found out about the reference.
White v Jones, 1995: A testator fill out in the beneficiaires and wrote a will desheritating the 2
daughters. 2 months later, sollicitor was contacted in order to change the will and give
something to the daughters. Then 2 months later the guy died before the sollicitor did the new
will… The daughter sued the sollicitor saying that he had not carried out his obligation.
Difficulties:
- the duty was owed to the guy who died
no third party can sue for contract that they are not party to (privity of contract). They said
that
plaintiff had a pure economic loss. Therefore they had to show special relationship between
beneficiary and sollicitor
if liability was to be found, it would be hard to set boundaries.
HoL: all those objections were overcome:
privity of contract did not exclude a duty of care in tort to the plaintiff
such a duty could arise if apart from the contract, the particular facts of the case give rise to a
special relationship
on facts of Heldley Byrne case, proof that there was reliance is not in every case a necessary
condition
a special relationship would arise when the defendant assured liability for providing services
and knowing that “the future economic welfare” ot the intended beneficiary is dependant on
the careful execution of the task
no policy reason on this case why a remedy should not be provided
Therefore the daughters won and got the money from the sollicitor!
3 crucial principles:
a duty to avoid causing such loss is confined to special relationship within which the
defendant
had assured liability for protecting the plaintiff's economic welfare
the relationship will only arise when the plaintiff is immediately identifiable as a individual
for whom the defendant undertakes responsibility in the performance of the task
Byrne relationships are not limited to negligent misstatement and careless advise. Provision of
services may create a special relationship in appropriate circumstances. Reliance is not an
ingredient of special relationship
Henderson v Merett , HoL 1994: Byrne should be extended beyon negligent missytatement:
the neccessary ingredients for appication of the principle is an ssumtion of liability for the
plaintiff economic welfare followed by the plaintiff's reliance on the undertaking. à Much
extended principle about the recovery for economic loss
NEGLIGENT INFLICTION OF PSYCHIATRIC HARM
The loss sustained is mental or psychological. The question of recovery is problematicv
because of the reluctanbce to recognize a duty of care to psychiatric harm not accompanied by
physical injury.
à physical injury worse than moral injury and difficulty to compensate mental injury.
Mc Laughlin v O'Brien:
Product liability
Story :
Developed from a drug named “thalidomide”.
In the late 50's, the scientific community made discoveries of two major classes of drugs
which revolutionized the treatment of patients (30-40's).
Penicillin was also discovered and used in the treatment of patients who would otherwise
have been overcome by infections.
There was an immense faith in drugs & no one thought of licensing them. No one
considered a tablet could do you damage.
Ex : pills taken for morning sickness but children were born without arms & legs (UK,
Germany, Australia).
Could people get compensation for the damages?
Lawyers discovered that law of negligence did not promise an effective remedy.
The danger should have been foreseen & tested against. But drug companies did not routinely
check their drugs for other effects Õ in the 50's had to show what other manufacturers were
not doing.
Ù law of negligence offered pessimistic future for them.
Therefore relied on contract law (strict liability) = merchantable quality. There could have
been a remedy under contract law.
Difficult remedy & no contract.
Cq : for 20 years no compensation was offered for the children Õ not liable!
The area of drugs became more sensitive.
Finally there were settlements out of court : £20, 000, 000 into a trust (1968) but the trust is
now running out of money.
A product liability directive was passed in 1985.
Principle : an individual damaged by defective products ought to be able to obtain
compensation without having to prove a fault.
Uses the principle saying that have to prove the product was defective & caused you
damage :
product
causation
damage
Consumer Protection Act 1987
Before 1988 : in negligence, had to show the defendant was at fault.
Daniels and Daniels v. R. White & Sons Ltd. (1934)
A hot summer day Mrs. Daniels went to a pub & bought lemonade.
Simultaneously, they drank & almost immediately they had a sensation of burning. They were
being burnt by a presence of carbolic acid. Mrs. Daniels brought her action in contract & the
judge, applying the Sales of Goods Act 1979, found for Mrs. Daniels that there was a fault.
Then looked at Mrs. Daniels' claim. She had no contract & the judge found nothing for her.
Limited to law of negligence. The manufacturers of lemonade were not negligent Õ her case
was dismissed.
On how many occasions will the damaged party have a contract with the seller? Majority of
occasions.
Product liability tries to introduce a ¯ remedy.
What is a defective product?
Section 3 CPA
“… there is a defect in a product for the purposes of this Part if the safety of the
product is not such as persons generally are entitled to expect …”.
Article 6 directive
“a product is defective when it does not provide the safety which a person is
entitled to expect …”.
Manufacturing risks
Grant v. Australian Knitting Mills (1936)
Manufacturer of underwear out of wool. One of the products to clean wool is
sulfate. Through an error, the garment bought by plaintiff was not washed off from sulfate. He
was sensitive & washed them but not sufficient Õ huge dermatological reaction which almost
killed him.
Brought proceedings against the seller & the manufacturer. The manufacturer's defense was
that the 1st difficulty they ever had. Do not blame us but on the contrary we were really
careful. The Privy Council said : one explanation is that an employee was negligent Õ
vicarious liability. If an employee has not been negligent then there is a fault in your system.
Then liable for having a faulty system of manufacturing Õ defendant liable because of a
manufacturing defect.
Courts : a manufacturing defect will attract liability. On this reasoning Daniels seems to be
wrongly decided.
After these cases very few manufacturing cases because admit liability Õ settlement out of
court.
Are there any products were this manufacturing defect does not appear? Is there a real safety?
Ex : heart valve = life saving device so need them as inexpensive as possible. Very little
components very fragile.
In negligence, have they taken reasonable care in manufacturing? Does product liability
improve things?
In product liability, how much are we entitled to expect? Question for lawyers.
Idio-synchratic = unique.
Ø drug damage :
in negligence, reasonable care by the manufacturer & if not
foreseen then not negligent. No one is entitled to say that all medicines will never do any
harm.
in general, not caused a problem because manufacturers settle. But problems with some
medical devices. If product liability is too aggressive, prices will go up.
Unintended Design Defects
Different to the extent that the product does comply with its specifications.
Lambert v. Lewis (1978)
Manufacturer of cars of the three-wheel cars made out of fiber-glass. Not as safe as
other cars but going up a steep hill following a caravan. The trailer-hook designed by
defendant. The design was modified for easier use & made it looser. Snapped up the hill & the
caravan went loose.
Action against the manufacturers : unintended design defect.
In negligence, courts said the manufacturer was liable because he had an inadequate design
team Õ response very generous.
In product liability, did the towing hook provide the safety expected? No!
Walton v. British Leyland (1978)
Famous for the most unreliable cars. Manufactured the Austin Allegro off the
production line that caused the breaks to heat. Defendants knew of the fault & tried to not let
it known. Walton always purchased British cars.
Negligent as soon as discovered the defect & failed to have a “reasonable care” in calling
back the defective cars.
Ex : thalidomide
Hill v. James Crowe Ltd. (1978)
If the product designed for a purpose & commonly used for another. But not fit for
the other purpose, is it defective?
Ex : a screwdriver (to open a can of paint), a microwave oven …
Is the product defective? Article 6 directive : (b) “the use to which it could reasonably be
expected that the product would be put …”.
Case facts : stepped on a box to load boxes on a lorry, damages his ankles & sued the
manufacturer. But the boxes of that dimension are common to use as a step. Then the
manufacturer should take precautions (negligence). Identical for product liability.
Griffiths v. Liverpool CC (1967)
Use of glass as partitioning. Problem of glass doors is people tend to walk into
them. Concerns the use of glass in Council housing. Plaintiff tripped & fell through the glass.
The response of the local authority is that it is not designed for that. Not respected for its use.
In negligence, foreseeable that the product could be used for an other purpose? Yes!
Same result in product liability.
Ex : crash worthiness = are the cars defective? No cases in UK, but thousands in the US.
Courts said that we all know that cars are involved in accidents Õ crash worthiness is
necessary.
Conscious Design Compromises
The only law product liability can apply is negligence law. Products are unavoidably
dangerous
Ex : kitchen knife
Õ responsibility on a person to use it safely.
Ex : motor cars
Dreisonstock v. Volkswagonwerk
Handy design but nothing to absorb the shock & runs into a telegraph pole. Took
his complaint on product liability ground saying it was more dangerous than other cars. The
reason you bought the product was for the carriage & knew the risk = risk benefit analysis.
Õ compromises with safety are necessary.
Griffiths v. Peter Conway Ltd. (1939)
Idio-synchratic damage caused by a coat made of wool & the purchaser put the
coat on & irritated her skin. Took the coat back to the manufacturer on grounds that it was not
fit for its purpose.
The coat was fit for its purpose because you are the idio-synchratic person for which it does
not suit.
Court : not unfit for its purpose because generally fit for most of the people.
What would have happened if the product had killed the person? Product liability would
have said it does not give the safety expected unless informed.
Õ relative safety is required.
Warnings and Instructions for Use
No way of guaranteeing complete safety. Many products come with warnings &
precautions. But how much should the manufacturer say? Not too much & not too less =
proportionality. What needs to be said to keep the consumer reasonably safe.
Õ all this is determined by the law of negligence.
Heils v. Hedges (1951)
Sale of pork by a butcher? She cuts her pork & not cooked. Sues the butcher. You only
have to told of things that are not so obvious. She loses.
Devilez v. Boots Pure Drug Co. (1962)
Devilez bought a corn remover from Boots. Devilez was taking a bath & corn
remover spilled on his genital parts when coming out. Went to bed & was dissolved in the
morning;
Lawyer said you should have been told about it. Action in front of the High Court.
Court : was not obvious that this might have happened = average Englishman was less
intelligent than an other Englishman Õ should have been warned Õ won!
The rule in product liability = say as much to be “reasonably safe” Õ take reasonable care.
Holmes v. Ashford (1950)
Hair dye. Manufacturers had advised to use a patch test to the hairdresser but forgot
the test & applied the hair dye & all her hair dropped.
Action taken against both :
manufacturer : did not take reasonable care in warning her. Court : many
aspects where necessary to warn the intermediary.
hairdresser : did not read the warning or did but took no notice of it.
By suing manufacturers more & more, risk to cost is more for the products we would want to
acquire Õ a balance is necessary.
Supplier is liable vis-à-vis the buyer (as long as there is a contract).
What are the remedies against the supplier in negligence ? requires showing that they were at
fault. Very hard to show.
Although the action in contract is great the negligence action against the supplier is poor.
Article 2 of the directive : you can sue the supplier as if he is the manufacturer. The supplier
can pass the responsibility down the chain & back to the manufacturer but needs to keep
perfect records.
The supplier will prima facie be called the manufacturer unless he can show who the suppliers
are.
This article makes a considerable difference comparing to the Consumer Protection Act.
Defenses to liability
Article 7
There may be circumstances where there will be a defense :
Õ did not put the product into circulation: any injury that occurred did in the factory
Õ it is probable that the defect did not exist when put into circulation : the defect arose
because product modified by someone, another person should be responsible
Õ all domestic transactions are outside the product liability directive
Õ mandatory regulations
Õ development of risk defense
Õ for manufacturers of component parts
Section 4 CPA
“the defect is attributable to compliance with any requirement imposed by or under any
enactment
or with any Community obligation”.
Compliance with Mandatory standards
Law of negligence : mandatory standards have to be distinguished from minimum
standards. Have to comply with in particular.
Minimum standards impose a baseline below which the manufacturer must not go but does
not insist on higher standards. A manufacturer would be expected to comply with higher
standards.
When government passes regulations on safety, those are periodically reviewed but a
regulation can fall out of date. As a result a good standard 5 years ago is now outdated.
Manufacturer should know they are not suitable standards = negligent because ought to have
done more.
Thompson v. Smith Shiprepairers Ltd. (1984)
Ship building industry & workmen working inside ships. Colossal amount of
noise when ship constructed. Class action of workers of the industry: all suffered varying
degrees of deafness. Brought proceedings against the employer. He said that never knew that
there was a link between excessive noise & deafness. Shipyards have not seen the danger.
Also in medicine did not strike the doctors.
Have to show no reasonable care: but we did take it by reference to the standards adopted
elsewhere in the same industry.
Court :standards not high enough. In the industry the standards are far too low. As a matter of
common sense, since all employees complained, should have made more inquiries. The
standard in the entire industry was deficient.
The courts should set the standards in negligence.
Bux v. Slough Metal Ltd. (1974)
Statutory regulation set by parliament. Introduced minimum standards of safety on
building sites. For example caging of dangerous activities. Very old regulations, the defendant
had complied with the regulations. Plaintiff was injured by the activities on the building site.
Defense : we have done what we have to do, complied with the statutory regulations = not
liable in negligence.
Court : minimum standard & if get out of date for the court to set a standard in negligence.
Higher standard was imposed & plaintiff won.
Few mandatory standards
Ex : the most common = warnings & information for example for drugs. The licensing system
approves specifically the warnings & information. These words accompanying the drugs are
mandatory.
Upholstered furniture regulations (1988)
Artificial fiber releases fumes dangerous when burns. But cheap & more
dangerous. The regulations say that those materials need a specific warning for a new
furnishings. Flame test : the artificial fiber must withstand a long burn before taking fire =
minimum standard. The warning is a mandatory standard.
If the matter is of minimum standards then this defense does not apply.
Development risks
“it shall be a defense to show … (e) that the state of scientific & technical knowledge … was
not such
that a producer of products of the same description as the product in question might be
expected to have discovered the defect …”
The claimants have established that has been defective.
The producer can escape liability if he proves that no fault. Burden of proof : the defendant
must escape liability by proving that has committed no fault.
CPA, Section 4 §e
What is the difference in wording between the Act & the directive & is it significant?
The Thalidomide case : contradiction in term to have a strict liability directive but the
development risk defense introduced for the producer (not liable if not negligent).
If thalidomide happened wouldn't they have a development risk defense?
How close is it to negligence : several differences?
“Scientific & technical” : this could have said state of knowledge but refers to the state of this
type of knowledge. Does the addition of those words restrict the type of words with which we
are dealing? If words are in a statute they must be given a meaning, never redundant words.
Woods v. Duncan (1946)
Maiden voyage of a submarine (Thetis). Sets out under water & have to test the
torpedo hatches. Thought they had a full proof mechanism. Electrical gate to show if water in
it. When testing done the outer door was signaled closed but was open. Inquiry of what had
happened. Discovered that when the outer door was sprayed with paint it was so thick that the
door could not close. Action in negligence : case to House of Lords : although it was easy to
understand the combination of circumstances was so improbable that the result could not have
been foreseen.
The defendants were excused.
Was this a failure of scientific or technical knowledge? The reason was that all the
consequences of the risk were not added up.
Difference between absence of knowledge then between scientific & technical knowledge.
Because of the war time, if it were to arise today under the product liability it would not
qualify under article 7 because case of not adding together facts.
Ex : Bunk Beds (Entrapment Hazards)(Safety)
Habitat sold beds (bunk beds). Popular beds with children but danger for child
on the upper bunk. The designers put a railing on the side of the upper bunk. Soon after the
design introduced a child of about 4 years wriggled in between the railing & the mattress &
his head got stuck.
Analysis on scientific & technical knowledge : would be on product liability. Nothing
scientific about that accident. Was just not foreseen = absence of knowledge. $
You might argue that they thought to defend the design on article 7 §e, they do not come
under scientific or technical knowledge.
But if the words are there they there to restrain the knowledge which is in some scientific or
technical expertise.
The government passed regulations after these accidents : the distance between the railing &
mattress can only be of such length.
“Knowledge” : what do we know as lawyers apart from suspicion, theory, hypothesis?
Ex : Researcher in China : discovers, if known by us in drug manufacturing firm, a drug that
would not be allowed. Works as a lone hermit & knows something that only he knows. Is
there knowledge?
We never get to complete knowledge.
IBA v. EMI & BICC Ltd. (1980)
Concerns the designers of a new aerial mast. When the testing was undertaken it
was tested so that they had taken a lot of precautions = big margin of safety.
Built it on a Yorkshire moor. But the irony was that this mast collapsed in winds blowing at 4
miles per hour. It was raining & on one side ice was forming on a rope. The additional weight
bent the mast = vortex shedding : started to vibrate & fell down.
Action in negligence against the designer. Ought they to have had knowledge of that risk. The
designers said it was a brand new design : we can not know everything. You cannot expect we
could have foreseen this risk.
House of Lords : if you are the 1st in the field the duty of care is higher on you to look on all
the dangers & risks = ought to have had knowledge of this.
Ù have to show you have been diligent in your research. High risk research lays high &
onerous duty of care baring on you. You must have a good system otherwise you can be sued.
Stockes v. GKN (Bolts & Nuts) Ltd. (1968)
Men working on manufacturing machines (lathe) on metal. When you use it you
deal with the problem of friction : need lubricating oil. Oil sprayed on the metal & splashing
over their overalls & soaked through their garments. Men started to have testicular cancer.
Men did not go seek medical advice, but was too late. Action against manufacturer because
was cancerigenic.
Court : no sufficiently developed system of inquiry = should have looked at a plausible cause;
did not have knowledge but ought to have had Õ defendants failed.
Need a systematic response to risk.
Vacwell v. BDH Chemicals Ltd. (1971)
The sale by defendants of chemicals. They did not put warnings on it for its
dangerous side. A large packing case delivered & plaintiff, while unpacking, tried to wash off
the labels & dropped one of the test tubes. Explosive reaction with water & chemist
disappeared & factory exploded.
Should have been warned of the degree of danger. No one knew. The plaintiffs went through
all the recent textbooks but found one published in 1901 which indicated the danger. For
some reasons that knowledge was forgotten. That is reasonable not to go back that far.
Court : when you are a high risk industry you have a duty to be extra careful = system of
searching through all the literature in order for people to be safe.
The same works in industries of huge danger.
“Not such to enable the defect to be discovered” : the sole research in a cave argument cannot
apply. Knowledge is not abstract but relative & subjective.
Have to distinguish between individual theory & real knowledge. The theory does not make it
true. Knowledge needs the approval of a learned community (appraised, tested & approved).
Commission v. United Kingdom (1997)
Lost the case & ordered to pay costs.
If manufacturers are made liable to early, they may be discouraged in their researches Õ
development risk policy very important.
Extensive research is necessary because the development theory will only be applied with a
thorough response on the matter.
Reversal of burden of proof
Burden of proof on the producer : not liable if covered by the defense.
Roe v. Minister of Health (1954)
Reverse the burden of proof = plaintiff went to hospital & required an anesthetic in his
spine. Was given it through a seringue taken from a glass container containing the anesthetic.
Preserved in a small container of antiseptic but some of the glass ampoules had invisible
cracks & antiseptic leaked through the anesthetic Õ paralyzed him.
Action : duty to take reasonable care for damage you can reasonably foresee.
Lord Denning : could not have foreseen invisible cracks, therefore no duty of care to avoid it.
Action dismissed & plaintiff received nothing.
Product liability law
The ampoule was defective. So far as the plaintiff is concerned easy to prove that
harmed by a defective product.
Can the defendant show the state of the art defense? On one view, they would be able to
establish the defense but the facts of the case were linked to an American hospital were a
purple solution was put in the bath to see if leaks Õ someone had knowledge.
Should the producer of the ampoule had discovered the defect. An American producer had
found the defect.
Should not have been expected to know what another person had known. Not decisive.
If other people know about why are you expected to not know about it.
Thalidomide case : when research conducted, rare for effects to be experienced. The placental
barrier was said to keep out the noxious substances. Many companies therefore did not do
researches.
The point was that a number of drug companies were doing that kind of researches.
Õ claim that the product was defective under the product liability test would be possible
today.
More as a theoretical possibility but not an effective defense.
Persistent problems of causation
Article 4 : “the injured person shall be required to prove the damage, the defect & the causal
relationship between defect & damage”.
Californian case : drug (DES) was used for the purpose of preventing miscarriage (“useless
in that purpose”). Did not do any damage to the mother but damaged the baby = visible when
the baby became an adolescent girl ; aggressive form of vaginal cancer needing radical
surgery.
The problem was who do you sue? When the drug was made originally it was made by about
200 hundred different producers (60's). Damage visible in mid 70's but evolution of the
producers. The 200 had gone down back to 10. Their defense was that it might not have been
us who made that drug. The reality was that the mother did not really remember.
Action taken against Abbott laboratories : court took the view that the fair way to take care of
this was that liability should be imposed on them according to the market share they had at the
time = market share liability.
The problem of not being able to find the right producer is a technical problem that should not
bar the possibility to recover under liability.
In California & New York they got market share liability but the other states said that they did
not understand what this judgment really meant. This is attractive at 1st site but the courts
adopted the idea that you have to identify the defendant. Market share liability has not been
adopted by the majority of the states.
Õ if you know who the supplier is, you have an action.
Multiple causes
Wilsher v. Essex AHA (1988)
Very premature baby (special care baby unit = SCBU). Discovered (70's) that when
put in this must be careful about the amount of oxygen (suffer RLF). For this baby the level
was much too high.
The defendants said they were negligent but do not admit causation because blindness could
have arisen from 4 other natural things. No proof they did it.
Õ multiple causes (caused here by doctors) : by doctors or natural.
Still for the plaintiff to identify the defendant & must prove the defendant made a material
contribution to the damage.
House of Lords : no identifying of the defendant therefore action dismissed.
Fitzgerald v. Lane (1987)
Multiple cause case : the defendant was crossing the road & hit by two cars. One
caused an impact that paralyzed him but since close impacts did not know which car did it.
Sued them both since did not know which one hit him.
Court : since both driving carelessly they should both be held equally liable even though only
one of them caused the damage (court of appeal case).
If Wilsher strictly applied to Fitzgerald, no action since did not identify the defendant.
Fitzgerald must have been overruled by Wilsher. In Fitzgerald all the causes are guilty, then
possible to hold them all liable. But contradicts Wilsher.
Remoteness
Reasonable foresight rule. Breach of duty of care can run on &on ; need system to limit. Can
recover your damage so much as is foreseeable.
Does this apply to product liability?
Barnett v. Dickens (1964) : Plaintiff delivered a washing machine but defective. What
damage a machine can do to someone. Women of pre-sensitive disposition & believed the
machine was coming towards her. Brought her action in product liability. Not reasonably
foreseeable therefore dismissed.
Even though the directive does not talk about it, it should be introduced in the directive.
Crankshaw v. Piedmont Driving Club: Mrs. went to the driving club & ordered starters
amongst shrimps. But were awful. She goes to the bathroom but does not come back. Slips on
vomit of her friend breaking her ankle. She sues the club for the accident. Not a direct link but
a causal relationship.
Does the law in remoteness apply? Too remote!
Harmonization in the law of defect but not in the law of causation.
Product liability
Is this strict liability?
Story :
Developed from a drug named “thalidomide”.
In the late 50's, the scientific community made discoveries of two major classes of drugs
which revolutionized the treatment of patients (30-40's).
Penicillin was also discovered and used in the treatment of patients who would otherwise
have been overcome by infections.
There was an immense faith in drugs & no one thought of licensing them. No one
considered a tablet could do you damage.
Ex : pills taken for morning sickness but children were born without arms & legs (UK,
Germany, Australia).
Could people get compensation for the damages?
Lawyers discovered that law of negligence did not promise an effective remedy.
The danger should have been foreseen & tested against. But drug companies did not routinely
check their drugs for other effects Õ in the 50's had to show what other manufacturers were
not doing.
Ù law of negligence offered pessimistic future for them.
Therefore relied on contract law (strict liability) = merchantable quality. There could have
been a remedy under contract law.
Difficult remedy & no contract.
Cq : for 20 years no compensation was offered for the children Õ not liable!
The area of drugs became more sensitive.
Finally there were settlements out of court : £20, 000, 000 into a trust (1968) but the trust is
now running out of money.
A product liability directive was passed in 1985.
Principle : an individual damaged by defective products ought to be able to obtain
compensation without having to prove a fault.
Uses the principle saying that have to prove the product was defective & caused you
damage :
product
causation
damage
Consumer Protection Act 1987
Before 1988 : in negligence, had to show the defendant was at fault.
Daniels and Daniels v. R. White & Sons Ltd. (1934)
A hot summer day Mrs. Daniels went to a pub & bought lemonade.
Simultaneously, they drank & almost immediately they had a sensation of burning. They were
being burnt by a presence of carbolic acid. Mrs. Daniels brought her action in contract & the
judge, applying the Sales of Goods Act 1979, found for Mrs. Daniels that there was a fault.
Then looked at Mrs. Daniels' claim. She had no contract & the judge found nothing for her.
Limited to law of negligence. The manufacturers of lemonade were not negligent Õ her case
was dismissed.
On how many occasions will the damaged party have a contract with the seller? Majority of
occasions.
Product liability tries to introduce a ¯ remedy.
What is a defective product?
Section 3 CPA
“… there is a defect in a product for the purposes of this Part if the safety of the
product is not such as persons generally are entitled to expect …”.
Article 6 directive
“a product is defective when it does not provide the safety which a person is
entitled to expect …”.
Manufacturing risks
Grant v. Australian Knitting Mills (1936)
Manufacturer of underwear out of wool. One of the products to clean wool is
sulfate. Through an error, the garment bought by plaintiff was not washed off from sulfate. He
was sensitive & washed them but not sufficient Õ huge dermatological reaction which almost
killed him.
Brought proceedings against the seller & the manufacturer. The manufacturer's defense was
that the 1st difficulty they ever had. Do not blame us but on the contrary we were really
careful. The Privy Council said : one explanation is that an employee was negligent Õ
vicarious liability. If an employee has not been negligent then there is a fault in your system.
Then liable for having a faulty system of manufacturing Õ defendant liable because of a
manufacturing defect.
Courts : a manufacturing defect will attract liability. On this reasoning Daniels seems to be
wrongly decided.
After these cases very few manufacturing cases because admit liability Õ settlement out of
court.
Are there any products were this manufacturing defect does not appear? Is there a real safety?
Ex : heart valve = life saving device so need them as inexpensive as possible. Very little
components very fragile.
In negligence, have they taken reasonable care in manufacturing? Does product liability
improve things?
In product liability, how much are we entitled to expect? Question for lawyers.
Idio-synchratic = unique.
Ø drug damage :
in negligence, reasonable care by the manufacturer & if not
foreseen then not negligent. No one is entitled to say that all medicines will never do any
harm.
in general, not caused a problem because manufacturers settle. But problems with some
medical devices. If product liability is too aggressive, prices will go up.
Unintended Design Defects
Different to the extent that the product does comply with its specifications.
Lambert v. Lewis (1978)
Manufacturer of cars of the three-wheel cars made out of fiber-glass. Not as safe as
other cars but going up a steep hill following a caravan. The trailer-hook designed by
defendant. The design was modified for easier use & made it looser. Snapped up the hill & the
caravan went loose.
Action against the manufacturers : unintended design defect.
In negligence, courts said the manufacturer was liable because he had an inadequate design
team Õ response very generous.
In product liability, did the towing hook provide the safety expected? No!
Walton v. British Leyland (1978)
Famous for the most unreliable cars. Manufactured the Austin Allegro off the
production line that caused the breaks to heat. Defendants knew of the fault & tried to not let
it known. Walton always purchased British cars.
Negligent as soon as discovered the defect & failed to have a “reasonable care” in calling
back the defective cars.
Ex : thalidomide
Hill v. James Crowe Ltd. (1978)
If the product designed for a purpose & commonly used for another. But not fit for
the other purpose, is it defective?
Ex : a screwdriver (to open a can of paint), a microwave oven …
Is the product defective? Article 6 directive : (b) “the use to which it could reasonably be
expected that the product would be put …”.
Case facts : stepped on a box to load boxes on a lorry, damages his ankles & sued the
manufacturer. But the boxes of that dimension are common to use as a step. Then the
manufacturer should take precautions (negligence). Identical for product liability.
Griffiths v. Liverpool CC (1967)
Use of glass as partitioning. Problem of glass doors is people tend to walk into
them. Concerns the use of glass in Council housing. Plaintiff tripped & fell through the glass.
The response of the local authority is that it is not designed for that. Not respected for its use.
In negligence, foreseeable that the product could be used for an other purpose? Yes!
Same result in product liability.
Ex : crash worthiness = are the cars defective? No cases in UK, but thousands in the US.
Courts said that we all know that cars are involved in accidents Õ crash worthiness is
necessary.
Conscious Design Compromises
The only law product liability can apply is negligence law. Products are unavoidably
dangerous
Ex : kitchen knife
Õ responsibility on a person to use it safely.
Ex : motor cars
Dreisonstock v. Volkswagonwerk
Handy design but nothing to absorb the shock & runs into a telegraph pole. Took
his complaint on product liability ground saying it was more dangerous than other cars. The
reason you bought the product was for the carriage & knew the risk = risk benefit analysis.
Õ compromises with safety are necessary.
Griffiths v. Peter Conway Ltd. (1939)
Idio-synchratic damage caused by a coat made of wool & the purchaser put the
coat on & irritated her skin. Took the coat back to the manufacturer on grounds that it was not
fit for its purpose.
The coat was fit for its purpose because you are the idio-synchratic person for which it does
not suit.
Court : not unfit for its purpose because generally fit for most of the people.
What would have happened if the product had killed the person? Product liability would
have said it does not give the safety expected unless informed.
Õ relative safety is required.
Warnings and Instructions for Use
No way of guaranteeing complete safety. Many products come with warnings &
precautions. But how much should the manufacturer say? Not too much & not too less =
proportionality. What needs to be said to keep the consumer reasonably safe.
Õ all this is determined by the law of negligence.
Heils v. Hedges (1951)
Sale of pork by a butcher? She cuts her pork & not cooked. Sues the butcher. You only
have to told of things that are not so obvious. She loses.
Devilez v. Boots Pure Drug Co. (1962)
Devilez bought a corn remover from Boots. Devilez was taking a bath & corn
remover spilled on his genital parts when coming out. Went to bed & was dissolved in the
morning;
Lawyer said you should have been told about it. Action in front of the High Court.
Court : was not obvious that this might have happened = average Englishman was less
intelligent than an other Englishman Õ should have been warned Õ won!
The rule in product liability = say as much to be “reasonably safe” Õ take reasonable care.
Holmes v. Ashford (1950)
Hair dye. Manufacturers had advised to use a patch test to the hairdresser but forgot
the test & applied the hair dye & all her hair dropped.
Action taken against both :
manufacturer : did not take reasonable care in warning her. Court :
many aspects where necessary to warn the intermediary.
hairdresser : did not read the warning or did but took no notice of it.
By suing manufacturers more & more, risk to cost is more for the products we would want to
acquire Õ a balance is necessary.
Supplier is liable vis-à-vis the buyer (as long as there is a contract).
What are the remedies against the supplier in negligence ? requires showing that they were at
fault. Very hard to show.
Although the action in contract is great the negligence action against the supplier is poor.
Article 2 of the directive : you can sue the supplier as if he is the manufacturer. The supplier
can pass the responsibility down the chain & back to the manufacturer but needs to keep
perfect records.
The supplier will prima facie be called the manufacturer unless he can show who the suppliers
are.
This article makes a considerable difference comparing to the Consumer Protection Act.
Defenses to liability
Article 7
There may be circumstances where there will be a defense :
Õ did not put the product into circulation: any injury that occurred did in the factory
Õ it is probable that the defect did not exist when put into circulation : the defect arose
because product modified by someone, another person should be responsible
Õ all domestic transactions are outside the product liability directive
Õ mandatory regulations
Õ development of risk defense
Õ for manufacturers of component parts
Section 4 CPA
“the defect is attributable to compliance with any requirement imposed by or under any
enactment
or with any Community obligation”.
Compliance with Mandatory standards
Law of negligence : mandatory standards have to be distinguished from minimum
standards. Have to comply with in particular.
Minimum standards impose a baseline below which the manufacturer must not go but does
not insist on higher standards. A manufacturer would be expected to comply with higher
standards.
When government passes regulations on safety, those are periodically reviewed but a
regulation can fall out of date. As a result a good standard 5 years ago is now outdated.
Manufacturer should know they are not suitable standards = negligent because ought to have
done more.
Thompson v. Smith Shiprepairers Ltd. (1984)
Ship building industry & workmen working inside ships. Colossal amount of
noise when ship constructed. Class action of workers of the industry: all suffered varying
degrees of deafness. Brought proceedings against the employer. He said that never knew that
there was a link between excessive noise & deafness. Shipyards have not seen the danger.
Also in medicine did not strike the doctors.
Have to show no reasonable care: but we did take it by reference to the standards adopted
elsewhere in the same industry.
Court :standards not high enough. In the industry the standards are far too low. As a matter of
common sense, since all employees complained, should have made more inquiries. The
standard in the entire industry was deficient.
The courts should set the standards in negligence.
Bux v. Slough Metal Ltd. (1974)
Statutory regulation set by parliament. Introduced minimum standards of safety on
building sites. For example caging of dangerous activities. Very old regulations, the defendant
had complied with the regulations. Plaintiff was injured by the activities on the building site.
Defense : we have done what we have to do, complied with the statutory regulations = not
liable in negligence.
Court : minimum standard & if get out of date for the court to set a standard in negligence.
Higher standard was imposed & plaintiff won.
Few mandatory standards
Ex : the most common = warnings & information for example for drugs. The licensing system
approves specifically the warnings & information. These words accompanying the drugs are
mandatory.
Upholstered furniture regulations (1988)
Artificial fiber releases fumes dangerous when burns. But cheap & more
dangerous. The regulations say that those materials need a specific warning for a new
furnishings. Flame test : the artificial fiber must withstand a long burn before taking fire =
minimum standard. The warning is a mandatory standard.
If the matter is of minimum standards then this defense does not apply.
Development risks
“it shall be a defense to show … (e) that the state of scientific & technical knowledge … was
not such
that a producer of products of the same description as the product in question might be
expected to have discovered the defect …”
The claimants have established that has been defective.
The producer can escape liability if he proves that no fault. Burden of proof : the defendant
must escape liability by proving that has committed no fault.
CPA, Section 4 §e
What is the difference in wording between the Act & the directive & is it significant?
The Thalidomide case : contradiction in term to have a strict liability directive but the
development risk defense introduced for the producer (not liable if not negligent).
If thalidomide happened wouldn't they have a development risk defense?
How close is it to negligence : several differences?
“Scientific & technical” : this could have said state of knowledge but refers to the state of this
type of knowledge. Does the addition of those words restrict the type of words with which we
are dealing? If words are in a statute they must be given a meaning, never redundant words.
Woods v. Duncan (1946)
Maiden voyage of a submarine (Thetis). Sets out under water & have to test the
torpedo hatches. Thought they had a full proof mechanism. Electrical gate to show if water in
it. When testing done the outer door was signaled closed but was open. Inquiry of what had
happened. Discovered that when the outer door was sprayed with paint it was so thick that the
door could not close. Action in negligence : case to House of Lords : although it was easy to
understand the combination of circumstances was so improbable that the result could not have
been foreseen.
The defendants were excused.
Was this a failure of scientific or technical knowledge? The reason was that all the
consequences of the risk were not added up.
Difference between absence of knowledge then between scientific & technical knowledge.
Because of the war time, if it were to arise today under the product liability it would not
qualify under article 7 because case of not adding together facts.
Ex : Bunk Beds (Entrapment Hazards)(Safety)
Habitat sold beds (bunk beds). Popular beds with children but danger for child
on the upper bunk. The designers put a railing on the side of the upper bunk. Soon after the
design introduced a child of about 4 years wriggled in between the railing & the mattress &
his head got stuck.
Analysis on scientific & technical knowledge : would be on product liability. Nothing
scientific about that accident. Was just not foreseen = absence of knowledge. $
You might argue that they thought to defend the design on article 7 §e, they do not come
under scientific or technical knowledge.
But if the words are there they there to restrain the knowledge which is in some scientific or
technical expertise.
The government passed regulations after these accidents : the distance between the railing &
mattress can only be of such length.
“Knowledge” : what do we know as lawyers apart from suspicion, theory, hypothesis?
Ex : Researcher in China : discovers, if known by us in drug manufacturing firm, a drug that
would not be allowed. Works as a lone hermit & knows something that only he knows. Is
there knowledge?
We never get to complete knowledge.
IBA v. EMI & BICC Ltd. (1980)
Concerns the designers of a new aerial mast. When the testing was undertaken it
was tested so that they had taken a lot of precautions = big margin of safety.
Built it on a Yorkshire moor. But the irony was that this mast collapsed in winds blowing at 4
miles per hour. It was raining & on one side ice was forming on a rope. The additional weight
bent the mast = vortex shedding : started to vibrate & fell down.
Action in negligence against the designer. Ought they to have had knowledge of that risk. The
designers said it was a brand new design : we can not know everything. You cannot expect we
could have foreseen this risk.
House of Lords : if you are the 1st in the field the duty of care is higher on you to look on all
the dangers & risks = ought to have had knowledge of this.
Ù have to show you have been diligent in your research. High risk research lays high &
onerous duty of care baring on you. You must have a good system otherwise you can be sued.
Stockes v. GKN (Bolts & Nuts) Ltd. (1968)
Men working on manufacturing machines (lathe) on metal. When you use it you
deal with the problem of friction : need lubricating oil. Oil sprayed on the metal & splashing
over their overalls & soaked through their garments. Men started to have testicular cancer.
Men did not go seek medical advice, but was too late. Action against manufacturer because
was cancerigenic.
Court : no sufficiently developed system of inquiry = should have looked at a plausible cause;
did not have knowledge but ought to have had Õ defendants failed.
Need a systematic response to risk.
Vacwell v. BDH Chemicals Ltd. (1971)
The sale by defendants of chemicals. They did not put warnings on it for its
dangerous side. A large packing case delivered & plaintiff, while unpacking, tried to wash off
the labels & dropped one of the test tubes. Explosive reaction with water & chemist
disappeared & factory exploded.
Should have been warned of the degree of danger. No one knew. The plaintiffs went through
all the recent textbooks but found one published in 1901 which indicated the danger. For
some reasons that knowledge was forgotten. That is reasonable not to go back that far.
Court : when you are a high risk industry you have a duty to be extra careful = system of
searching through all the literature in order for people to be safe.
The same works in industries of huge danger.
“Not such to enable the defect to be discovered” : the sole research in a cave argument cannot
apply. Knowledge is not abstract but relative & subjective.
Have to distinguish between individual theory & real knowledge. The theory does not make it
true. Knowledge needs the approval of a learned community (appraised, tested & approved).
Commission v. United Kingdom (1997)
Lost the case & ordered to pay costs.
If manufacturers are made liable to early, they may be discouraged in their researches Õ
development risk policy very important.
Extensive research is necessary because the development theory will only be applied with a
thorough response on the matter.
Reversal of burden of proof
Burden of proof on the producer : not liable if covered by the defense.
Roe v. Minister of Health (1954)
Reverse the burden of proof = plaintiff went to hospital & required an anesthetic in his
spine. Was given it through a seringue taken from a glass container containing the anesthetic.
Preserved in a small container of antiseptic but some of the glass ampoules had invisible
cracks & antiseptic leaked through the anesthetic Õ paralyzed him.
Action : duty to take reasonable care for damage you can reasonably foresee.
Lord Denning : could not have foreseen invisible cracks, therefore no duty of care to avoid it.
Action dismissed & plaintiff received nothing.
Product liability law
The ampoule was defective. So far as the plaintiff is concerned easy to prove that
harmed by a defective product.
Can the defendant show the state of the art defense? On one view, they would be able to
establish the defense but the facts of the case were linked to an American hospital were a
purple solution was put in the bath to see if leaks Õ someone had knowledge.
Should the producer of the ampoule had discovered the defect. An American producer had
found the defect.
Should not have been expected to know what another person had known. Not decisive.
If other people know about why are you expected to not know about it.
Thalidomide case : when research conducted, rare for effects to be experienced. The placental
barrier was said to keep out the noxious substances. Many companies therefore did not do
researches.
The point was that a number of drug companies were doing that kind of researches.
Õ claim that the product was defective under the product liability test would be possible
today.
More as a theoretical possibility but not an effective defense.
Persistent problems of causation
Article 4 : “the injured person shall be required to prove the damage, the defect & the causal
relationship between defect & damage”.
Californian case : drug (DES) was used for the purpose of preventing miscarriage (“useless
in that purpose”). Did not do any damage to the mother but damaged the baby = visible when
the baby became an adolescent girl ; aggressive form of vaginal cancer needing radical
surgery.
The problem was who do you sue? When the drug was made originally it was made by about
200 hundred different producers (60's). Damage visible in mid 70's but evolution of the
producers. The 200 had gone down back to 10. Their defense was that it might not have been
us who made that drug. The reality was that the mother did not really remember.
Action taken against Abbott laboratories : court took the view that the fair way to take care of
this was that liability should be imposed on them according to the market share they had at the
time = market share liability.
The problem of not being able to find the right producer is a technical problem that should not
bar the possibility to recover under liability.
In California & New York they got market share liability but the other states said that they did
not understand what this judgment really meant. This is attractive at 1st site but the courts
adopted the idea that you have to identify the defendant. Market share liability has not been
adopted by the majority of the states.
Õ if you know who the supplier is, you have an action.
Multiple causes
Wilsher v. Essex AHA (1988)
Very premature baby (special care baby unit = SCBU). Discovered (70's) that when
put in this must be careful about the amount of oxygen (suffer RLF). For this baby the level
was much too high.
The defendants said they were negligent but do not admit causation because blindness could
have arisen from 4 other natural things. No proof they did it.
Õ multiple causes (caused here by doctors) : by doctors or natural.
Still for the plaintiff to identify the defendant & must prove the defendant made a material
contribution to the damage.
House of Lords : no identifying of the defendant therefore action dismissed.
Fitzgerald v. Lane (1987)
Multiple cause case : the defendant was crossing the road & hit by two cars. One
caused an impact that paralyzed him but since close impacts did not know which car did it.
Sued them both since did not know which one hit him.
Court : since both driving carelessly they should both be held equally liable even though only
one of them caused the damage (court of appeal case).
If Wilsher strictly applied to Fitzgerald, no action since did not identify the defendant.
Fitzgerald must have been overruled by Wilsher. In Fitzgerald all the causes are guilty, then
possible to hold them all liable. But contradicts Wilsher.
Remoteness
Reasonable foresight rule. Breach of duty of care can run on &on ; need system to limit. Can
recover your damage so much as is foreseeable.
Does this apply to product liability?
Barnett v. Dickens (1964)
Plaintiff delivered a washing machine but defective. What damage a machine can do
to someone. Women of pre-sensitive disposition & believed the machine was coming towards
her. Brought her action in product liability. Not reasonably foreseeable therefore dismissed.
Even though the directive does not talk about it, it should be introduced in the directive.
Crankshaw v. Piedmont Driving Club
Mrs. went to the driving club & ordered starters amongst shrimps. But were
awful. She goes to the bathroom but does not come back. Slips on vomit of her friend
breaking her ankle. She sues the club for the accident. Not a direct link but a causal
relationship.
Does the law in remoteness apply? Too remote!
Harmonization in the law of defect but not in the law of causation.