ZAMBIA OPEN UNIVERSITY

LAW OF TORTS II

LL4 ASSIGNMENT 1

BANJI KALENGA
21811816

March 2019
INTRODUCTION

This essay is written in response to the assignment question: “A manufacturer of products,

which he sells in such a form that he intends them to reach the ultimate consumer in the form
in which they left him with no reasonable possibility of intermediate examination and with
the knowledge that the absence of reasonable 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 that reasonable care.”

We are requested to discuss this statement in relation to liability of a manufacturer of

defective products, such as selling an underweight loaf of bread or a negligently assembled
motor vehicle. In our discussion of the above statement, we are to make reference to case law
and to the Zambian statutes that deal with or regulate this kind of trade.

This question in the law of torts falls under the area of product liability. Products liability
refers to the liability of any or all parties along the chain of manufacture of any product for
damage caused by that product. This includes the manufacturer of component parts (at the top
of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the
bottom of the chain). Products containing inherent defects that cause harm to a consumer (or
someone to whom the product was loaned, given, etc.) of the product would be the subjects
of products liability suits. While products are generally thought of as tangible personal
property, products liability has stretched that definition to include intangibles (e.g. fuel),
naturals (e.g. pets), real estate (e.g. house), and writings (e.g. navigational charts).

PRINCIPLES OF PRODUCT LIABILITY

Product liability refers to a manufacturer or seller being held liable for placing a defective
product into the hands of a consumer. Responsibility for a product defect that causes injury
lies with all sellers of the product who are in the distribution chain. In general terms, the law
requires that a product meet the ordinary expectations of the consumer. When a product has
an unexpected defect or danger, the product cannot be said to meet the ordinary expectations
of the consumer.

For product liability to arise, at some point the product must have been sold in the
marketplace. Historically, a contractual relationship, known as "privity of contract," had to
exist between the person injured by a product and the supplier of the product in order for the
injured person to recover. In most states today, however, that requirement no longer exists,
and the injured person does not have to be the purchaser of the product in order to recover.
Any person who foreseeably could have been injured by a defective product can recover for
his or her injuries, as long as the product was sold to someone.

Liability for a product defect could rest with any party in the product's chain of distribution,
such as:

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 1. The product manufacturer;
2. A manufacturer of component parts;
3. A party that assembles or installs the product;
4. The wholesaler; and
5. The retail store that sold the product to the consumer.

The doctrine known as "res ipsa loquitur" shifts the burden of proof in some product liability
cases to the defendant(s). Translated, this Latin term means "the thing speaks for itself," and
indicates that the defect at issue would not exist unless someone was negligent. If the doctrine
is successfully invoked, the plaintiff is no longer required to prove how the defendant was
negligent; rather, the defendant is required to prove that it was not negligent.

The second rule that helps plaintiffs in product liability cases is that of strict liability. If strict
liability applies, the plaintiff does not need to prove that a manufacturer was negligent, but
only that the product was defective. By eliminating the issue of manufacturer fault, the
concept of no-fault, or "strict" liability allows plaintiffs to recover where they otherwise
might not. For strict liability to apply, the sale of a product must be made in the regular
course of the supplier's business. Thus, someone who sells a product at a garage sale would
probably not be liable in a product liability action.

For a Prima Facie Case to be established, the following should be satisfied:

1. The defendant sells a product that the plaintiff uses.

2. The defendant is the commercial seller of such a product.
3. The plaintiff suffers an injury.
4. When the defendant sold the item, the item was defective.
5. The defect was an actual and proximate cause of the plaintiff's injury.

Products liability claims can be based on negligence, strict liability, or breach of warranty of
fitness. There are three types of product defects that incur liability in manufacturers and
suppliers:

1. Design Defects

Design defects are inherent, as they exist before the product is manufactured. While the
item might serve its purpose well, it can be unreasonably dangerous to use due to a design
flaw.

2. Manufacturing Defects

Manufacturing defects occur during the construction or production of the item. Only a
few out of many products of the same type are flawed in this case.

3. Defects in marketing

Defects in marketing deal with improper instructions and failures to warn consumers of
latent dangers in the product.

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Products Liability is generally considered a strict liability offense. With regard to products
liability, a defendant is liable when the plaintiff proves that the product is defective,
regardless of the defendant's intent. It is irrelevant whether the manufacturer or supplier
exercised great care; if there is a defect in the product that causes harm, he or she will be
liable for it.

In Donoghue v Stevenson, Lord Atkin stated that a manufacturer of products owes a duty to
the ultimate consumer to take reasonable care in the preparation of the product. This
precedent allows for a plaintiff in a product liability to include even a defendant that wasn’t
the purchaser of the product in question.

CASE LAW

Priest v Last 1903

This case is demonstrates the principle that if the buyer told the seller the particular purpose
which he/she is purchasing the goods, then it is an implied condition that the goods are
reasonable to for the purpose. From this case, the buyer who bought a hot-water bottle from
the seller was a chemist. His wife used the hot-water bottle and then after 5 times, the bottle
burst and the wife was scalded. Evidence shows that, the bottle was not fit for use as a hot-
water bottle. The buyer claimed for breach of section 14(3) of the Sale of Goods Act
(discussed below). The seller stated that, the buyer had not made known the purpose for the
hot-water bottle would be used. However, this was rejected by the court. The court held that,
the plaintiff was entitled to recover the expenses in the treatment of the buyer’s wife injuries.
It is because the buyer relied on the seller’s judgment and he had in fact used the hot-water
bottle for the usual purpose.

MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916)

The plaintiff, Donald C. MacPherson, a stonecutter, was injured when one of the wooden
wheels of his 1909 "Buick Runabout" collapsed. The defendant, Buick Motor Company, had
manufactured the vehicle, but not the wheel, which had been manufactured by another party
but installed by defendant. It was conceded that the defective wheel could have been
discovered upon inspection. The defendant denied liability because the plaintiff had
purchased the automobile from a dealer, not directly from the defendant.

It was held that if the nature of a thing is such that it is reasonably certain to place life and
limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of
the consequence to be expected. If to the element of danger there is added knowledge that the
thing will be used by persons other than the purchaser, and used without new tests, then,
irrespective of contract, the manufacturer of this thing of danger is under a duty to make it
carefully. If he is negligent, where danger is to be foreseen, a liability will follow.

Thomas v. Winchester, 6 N.Y. 397 (1852)

In Thomas v. Winchester, the Court, departing from the old common law rule in
Winterbottom v. Wright, held that a commercial packager of a poison falsely labeled as

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harmless medicine, who sold it to a druggist who, in turn, sold it to the plaintiff who then
ingested it should be liable for her acute distress. The Court found a way around the lack of
privity between the consumer and the packager by adopting the rule that a party who puts
falsely labeled poison into the market and thus "puts human life in imminent danger" should
respond in damages to the ultimate consumer.

Kubach v Hollands

Manufacturers stated the product should be tested before use. Therefore there was reasonable
possibility of an intermediate examination and so they escaped liability.

The school where the chemical explosion happened was not liable as a supplier under
Dononghue v Stevenson rule, as they did not know of need to test the product.

It was held that mere opportunity or possibility of intermediate examination will not be
enough to exonerate a manufacturer. The manufacturer must believe there is a likelihood of
such an examination taking place.

Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520

The defendants were specialists in flooring and were sub-contractors to lay a floor in a
factory which was to be used by the plaintiffs. The plaintiffs claimed that due to the
negligence of the defendants, the floor was faulty and as they were specialists on the matter,
they were liable for the damage caused by the cracking in the floor. As a result of this, the
plaintiff brought an action claiming for the costs related to relaying the floor, for loss of
profits and the cost to the factory for getting the floor replaced. There was no claim for injury
to persons caused by the floor. The defendants appealed the claim of the plaintiffs.

The key issue for the court was whether the relationship between the parties was enough to
construct a duty of care with regards the faulty floor. It was important for the court to
consider the types of loss that the plaintiff could claim for on the basis that the loss to the
plaintiff was purely economic, rather than injury to an individual.

The court dismissed the appeal of the defendants. The court held that the parties were
sufficiently close and therefore there was a scope of duty between them. It was found that this
was not limited to a duty to avoid causing foreseeable harm to persons or property but also
created a duty to avoid pure economic loss, as a result of the work that had been defected. On
this basis, the plaintiff could recover the cost of repairing the floor.

Murphy v Brentwood District Council [1991] UKHL 2, [1991] 1 AC 398

A builder failed to build proper foundations to a house. The defendant local authority,
approving the building for its building regulations, failed to recognise the problem. When the
building became dangerously unstable, the claimant, being unable to raise any money for
repairs and choosing not to sue anyone at that stage therefore had to sell the house at a
considerable loss. He sought to recover his loss from Brentwood District Council, but this

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action failed as the loss, the deflated value he obtained for the house, was classed as a pure
economic loss.

The House of Lords overruled Anns and held that the council was not liable in the absence of
physical injury.

Farr v. Butters [1932] 2 KB 606

Crane manufacturers sold a crane, unassembled to builders where a crane erector would
assemble it for the builders. The erector when he was erecting the crane found that parts of it
were ill-fitting, and accordingly marked the areas with chalk. However, before the defects
were remedied, the erector began working on it, it fell on and killed him. It was held that as
the defects were discoverable on reasonable inspection, and having in fact been discovered by
the deceased, the manufacturers did not owe a duty of care.

Grant v Australian Knitting Mills [1932] AC 85

Dr Grant bought two pairs of underpants. He developed an acute rash, and spent three months
in hospital as a result, and his doctor feared for his life. This was caused by an excess of
sulphates. Applying Donoghue v Stevenson it was found that the manufacturer was liable.
The manufacturer argued that there was no duty of care, as there was an opportunity for
intermediate examination. However, the court held that as the defect was latent; Dr Grant
couldn’t reasonably be expected to know of the defect, and further, as the garments were
worn as expected to be worn and so there was a duty of care.

Roe v Minister for Health [1954] 2 QB 66

Two plaintiffs who went to hospital for a minor operation were given a spinal anesthetic
which had been stored in a container of phenoyl. They were paralyzed waist down due to
presence of phenoyl in the anesthetic which had seeped through invisible cracks in the glass
container in which the anesthetic was stored. It was held that the D hadn’t been negligent by
the standard of medical knowledge in 1940. The Court noted that the plaintiff’s situation was
terrible; it wasn’t possible to compensate under tort, and to do so would go against
community standards.

STATUTES

In Zambia, three statutes regulate the kind of trade that covers selling an underweight loaf of
bread or a negligently assembled motor vehicle. These statutes are:

1. Sale of Goods Act 1979

In a contract for the sale of goods, section 14 of the sale of goods Act 1979, which is
one of the most important provisions in the act, sets out the obligations of the seller in
relation to quality and fitness.

Before the act was reformed, the early law was based on the idea that it was up to the
parties to make their own bargain, and it stated it was up to the buyer to decide if the

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 goods were merchantable and fit for purpose before they agree to buy the product.
This meant that companies could exclude all implied terms. This was known as the
doctrine of ‘Caveat Emptor’ which means let the buyers beware. Although the ‘let the
buyer’ beware principle has been severely diminished, it is not entirely extinct by
S.14 (1).

The sale of goods Act 1979 protects consumers if the seller sells in the course of a
business as it restricts the use of the ‘caveat emptor’ rule, however this protection
varies if the seller is a private seller as the rule may still apply. Therefore, it could be
said that the amended Sale of Goods Act 1979 may not protect all consumers from
dangerous and shoddy goods, as private sellers are not included and the consumer
may not always be protected. Therefore, in order to ensure that the consumer is
adequately protected there must be a clear distinction between a ‘sale in the course of
a business’ and the sale not in the course of a business. Section 14(5) makes it clear
that if someone is selling in the course of a business as an agent for a private seller,
then the seller must make this clear to the buyer in order to avoid liability.

2. The Competition and Consumer Protection Act, 2010

Articles 47 to 54 of this act centre on protecting consumers from unfair practices and
defective goods from manufacturers and traders of goods and services. It also lists
sanctions to be imposed if these regulations aren’t followed. The Act covers false or
misleading representation, display of disclaimers prohibited, prohibition of supply of
defective and unsuitable goods and services, product labeling, price display, consumer
product safety, unfair contract term and Complaints on unfair contract term or trading
practices, defective goods, misrepresentations, e.t.c.

3. Weights and Measures Act, 2003

Sections 21 and 22 of this act regulate the sale of goods in measured units and lists the
applicable punishment to those contravening its regulations.

CONCLUSION

It is clear from the case law and available statutes above that both the seller of underweight
bread and the manufacturer of a negligently assembled motor vehicle would be found liable
under the tort of product liability and also under the Sale of Goods Act. The seller of the
underweight bread would also be guilty of contravening both the Competition and Consumer
Protection Act and the Weights and Measures Act. The negligently assembled vehicle would
also fall foul of the Competition and Customer Protection Act.

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BIBLIOGRAPHY

Besa, M. (2006). Law of torts II. Lusaka:ZAOU.

Brazier, M.(1993). Street on torts. London: Butterworths

Weir, T.(1996). A casebook on tort. London: Sweet and Maxwell.