NATIONAL LAW INSTITIUTE UNIVERSITY BHOPAL

FIRST TRIMESTER
PROJECT
TOPIC – FIXATION OF LIABILITY FOR
DEFECTIVE PRODUCTS

SUBMITTED BY: SUBMITTED TO:

AJIT JAISWAL RAJESH KHARE
2019BALLB83

CERTIFICATE
This is to certify that the analysis of the topic “Fixation of liability for defective
products” has been prepared and submitted by Ajit jaiswal, who is currently pursuing
B.A LL.B(Hons.) at National Law Institute University, Bhopal in fulfilment of Law of
torts .It is also certified that this is his original analysis of the case and this case
analysis has not been submitted to any other University, nor published in any journal .

Date:

Signature of the Student :……………………………

Signature of the Supervisor :……………………………

 ACKNOWLEDGEMENT

I would like to acknowledge and extent my heartfelt gratitude to Asst. Prof. Dr. Rajesh
kumar Khare for guiding me throughout the development of this analysis of this case into
a coherent whole by providing helpful insights and sharing his brilliant expertise. I would
also like to thank the officials of The Gyan Mandir, NLIU for helping me to find the
appropriate research material for this case analysis. I am deeply indebted to my parents
and friends for all the moral support and encouragement.

Ajit jaiswal

TABLE OF CASES
 Donoghue v Stevenson [1932] UKHL 100
Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)
Liebeck v. McDonald’s Restaurants (Bernalillo County, N.M. Dist. Ct. 1994)
Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948)
Devlin v. Smith, 89 N. Y. 470 (1882)
Grant v The Australian Knitting Mills ([1936] A.C. 562)
Loop v. Litchfield 42 N. Y. 351 (1870)
Devlin v. Smith, 89 N. Y. 470 (1882)
MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916)
Mexicali Rose v. Superior Court, 1 Cal. 4th 67 (1992)
Abouzaid v. Mothercare (UK) Ltd. [2000] EWCA Civ 348
Vigneault v. Dr. Hewson Dental Co., 15 N.E.2d 185 (Mass. 1938)
Smt. Uma Deepak vs Maruti Udyog Limited And Ors. I (2003) CPJ 90 MRTP
Syngenta India Limited v P. Chowdaiah S/o P. Naganna and others,(2013)Indlaw
NCDRC 309
Wipro Limited, (Formerly known as Wipro Infotech Limited), Bangalore v Toppers
Multimedia (P)
Limited and others ,2010 Indlaw NCDRC 13; 2010 (4) AWC 4.104; 2010 (2) CPJ(NC)
39 .
Coca-Cola India (P) Limited v Dr. Amarjit Singh and another,2010 Indlaw NCDRC 288 .
Sahib Exports India, through Partner Manjit Singh, New Delhi v New India Assurance
Company
Limited, Through Divisional Manager, New Delhi, 2011 Indlaw NCDRC 1; (2011) (87)
ALR 102;
2011 (3) CPJ(NC) 297.
Punjab Tractors Limited v P. Sanghasena and another,2011 Indlaw NCDRC 83; (2011)
(1) CPJ(NC)
293.
Great Eastern Appliances Private Limited v Santosh Kumar Kanodia @ S.K. Kanodia and
another,
(2011) Indlaw CAL 425 .

CAVEAT VENDITOR
When a sale is subject to this warning, the buyer assumes the danger that the product may be
either faulty or inappropriate to his or her needs. This rule is not intended to shield vendors
engaging in fraud or bad faith by creating fake or misleading depictions about the quality or
condition of a specific item. It simply summarizes the concept that a purchaser is required to
examine, judge, and test a product that is regarded for purchase on its own.

Nevertheless, the contemporary trend in consumer protection laws has minimized the
significance of this rule. Although the buyer is still needed to create a decent inspection of the
products upon purchase, the vendor has been given enhanced duties, and the doctrine of
caveat vendor (Latin for "let the seller be beware") has become more common. Generally
speaking, there is a legal presumption that a vendor makes certain warranties unless the
customer and the vendor agree otherwise one such warranty is the merchantability implied
warranty. If a person buys soap,for example,there is an implied warranty that it will clean; if a
person buys skis, there is an implied warranty that they will be safe to use on the slopes.

In dealing with an average client, a vendor who is in the company of frequently selling a
specific sort of products has even higher responsibility. A individual buying antiques from an
antique dealer or a jeweler's jewelry is justified in relying on the seller's knowledge.If both
the buyer and the seller are negotiating from equal bargaining positions, however, the
doctrine of caveat emptor would apply. To give rise to product liability, the product must
have been marketed on the market at some stage.

Historically, in order for the injured individual to recover, a contractual partnership, known as
"contract privacy," had to exist between the individual wounded by a product and the product
provider. However, in most countries today, this requirement no longer occurs, and in order
to recover, the wounded individual does not have to be the product's buyer. 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 the manufacturer, wholesalers, a retail
seller of the product, and a party who assembles or installs the product. 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.

Defectively Manufactured Products

The most evident sort of claim for product liability is when the product that caused injury was
produced defectively. Due to some mistake in creating it, a defectively manufactured product
is faulty, such as a factory issue where it was produced. As a consequence, the item that
causes injury differs somehow from all the others on the shelf. The manufacturing defect
must have caused the injury.

Defectively Designed Products

In this type of product liability category, a product's design is inherently dangerous or

defective. Defective design claims do not arise from some error or mishap in the
manufacturing process, but rather involve the claim that an entire line of products is
inherently dangerous, regardless of the fact that the injury-causing product was perfectly
made according to the manufacturer's specifications. The injury must have been caused by the
defective design.

Failure to Provide Adequate Warnings or Instructions

The third sort of claim for product responsibility includes failure to provide appropriate
warnings or guidelines on the correct use of the item. Failure-to-warn claims typically require
a product that is hazardous in a manner that is not evident to the consumer or requires the
customer to take unique precautions or diligence when using it. The injury must lead from the
inability to warn or instruct correctly.

Comparing the Three Types of Product Liability Claims

Claims involving pharmaceutical drugs provide a useful way of comparing the three types of
product liability claims. If you are injured because the particular bottle of cough syrup you
bought happens to contain several drops of arsenic that fell into it by accident at the factory
where it was made, your claim would be based on a manufacturing defect. By contrast, if
taking the same untampered-with cough syrup product led you to experience a heart attack
due to its ordinary components, your claim would be based on a design defect.

Finally, if the cough syrup was produced properly and is usually secure for use, but you were
wounded because you mixed it with aspirin and the label did not warn that such a mixture is
hazardous, your claim would be based on a failure to warn. By knowing these distinctions,
you can better recognize your claim for product liability and present your case in court
properly.

TORT THEORIES ON PRODUCT LIABILITY

An injured individual trying to recover damage caused by a product that is inevitably and
unreasonably hazardous may choose from several possible causes of action on the torts menu.
In its traditional form, the most likely are negligence and the theory of strict liability
employed against the manufacturers of faulty, unreasonably hazardous products. Other
possibilities include strict liability for abnormally dangerous activities, and absolute liability
for abnormally hazardous operations.

NEGLIGENCE

The contemporary law of negligence starts with the general concept that whenever a
individual understands or ought to understand that what they are about to do may generate an
unreasonable danger of damage to another individual, they have a obligation to use
reasonable care to prevent creating that danger. By limiting the legal commitments owed by
certain groups of defendants, the courts have tempered this principle. The choice to do an
unreasonably hazardous act may represent actionable negligence, although under the
conditions the actor conducted it with decent care. The defendant had an alternative course of
conduct that would not carry with it an unavoidable, undue risk, the failure to exercise that
option might constitute negligence. If a defendant's choice was between performing the
unduly risky activity or abstaining, the decision to act might constitute negligence. The
recognition of the duty, or the refusal to recognize the duty, should apply to all product
manufacturers.

STRICT PRODUCT LIABILITY

Section 402A of the Restatement (Second) of Torts, which promulgated the black-letter law
holding vendors accountable for damage caused by their faulty, unreasonably hazardous
goods, originated from the doctrine of strict-tort product liability. Originally applicable to
meat, and then to "intimate body use" goods, this rule was further extended by drafters to
cover all products, rather late in its growth . Strict tort liability once helped plaintiffs by
restricting affirmative defenses that defendants might assert because the Restatement
recognized only a limited form of assumption of risk that amounted to a form of contributory
fault. The adoption of comparative negligence by courts as an affirmative defense in strict-
tort products cases.

TORTIOUS MISREPRESENTATION
A claim in a product responsibility suit may be based on incorrect or inaccurate data
transmitted by a product's maker. An individual relying on the seller's data and damaged by
such dependence may recover for misrepresentation. This retrieval basis does not rely on a
product defect, but rather on incorrect communication.

In one of three fundamental types, tortious misrepresentation may occur.

•First, a individual may undertake fraudulent misrepresentation or misrepresentation in which

the individual understands that the claim is incorrect and attempts to mislead the complainant
by creating the assertion.

•Second, an individual may commit negligent misrepresentation in cases where the

individual was negligent in determining whether the declaration was true.

•Third, some jurisdictions enable strict responsibility in cases where a manufacturer's

declaration was true.