Negligence and

defective products

An introduction to claims in negligence in

relation to defective products.
Introduction

This element introduces you to the application of the principles of general negligence in
the context of product liability.
The Consumer Protection Act 1987 (the 'Act') provides a statutory basis for claiming in
relation to damage caused by defective products but this does not replace any claim in
negligence / breach of contract. So whenever faced with a problem involving a defective
product, a practitioner should consider negligence, breach of contract and the Consumer
Protection Act 1987.
This element presumes an understanding of the core principles of negligence.
Duty

When we are considering liability in negligence, a good starting point is:

Is there a precedent making clear whether or not a duty is owed?

When you studied negligence, you will almost certainly have come across the case of
Donoghue v Stevenson [1932] AC 562. That case is generally understood to mark the
beginning of the modern law of negligence, but it is also a precedent for the more specific
proposition that a manufacturer owes a duty of care to those people who use its products
(the manufacturer of the ginger beer owed a duty of care to the claimant that ultimately
consumed the beer). Note that the claimant in Donoghue v Stevenson did not purchase
the beer – it was purchased by the claimant's friend.
So the manufacturer owes a duty not only to the final purchaser at the end of the supply
chain, but also to other users of the product.
Stennett v Hancock [1939] 2 All ER 578 established that a manufacturer similarly owes a
duty to a party that neither bought nor used the product, but who comes into contact with
it.
Duty contd.

When considering product liability, the most likely 'target' is the manufacturer, but the
logic of Donoghue v Stevenson extends liability to other parties involved with the product.
These can be repairers, as in Haseldine v CA Daw [1941] 2 KB 343, and suppliers or
distributors, where they should have inspected the product and would then have
discovered the defect, eg a fitter in Malfroot v Noxal Ltd (1935) 51 TLR 551. Note that
there is not an absolute duty to inspect and test every product; what is reasonable will
depend on the circumstances.
Pure economic loss

When the loss being considered is the loss of the product itself (so cost of replacement is
sought), this is pure economic loss. This is not, generally, recoverable.
Breach

Breach must be analysed in the same way, for example, by considering the standard of
care to be expected of the manufacturer, and then whether the manufacturer has fallen
below that standard, including considering in particular the likelihood of harm, the
magnitude of harm and the practicality of precautions, assessing these based on the
knowledge / accepted practice at the time of alleged breach.
Whilst breach must be proved, in many cases the presence of a defect in a product will
be sufficient evidence to establish breach, unless the manufacturer can show another
reason for the defect. For example, the claimant in Donoghue v Stevenson would
presumably have argued that the presence of a snail would be evidence of a breach of
duty on the part of the manufacturer. But this does not change the fact that it is for the
claimant to prove breach, the presence of a defect does not necessarily prove that the
manufacturer fell below the required standard of care, and in some cases, moving from
proving a defect to proving breach can amount to a significant hurdle.
When the defect stems from a problem in the design of the product, rather than the
manufacturing process, then breach may be even more difficult to show.
Causation

Again, causation must be established following the usual principles.

A manufacturer might argue that where goods were going to be examined at some point
between the manufacture and use by the consumer, then any harm caused to the
consumer is not the manufacturers responsibility. The ‘immediate inspection’ point was
clarified in Haseldine v Daw [1941] 2 KB 343, where Lord Goddard referred to a
‘reasonable probability’ rather than a ‘reasonable possibility’ of intermediate examination
and the courts now work on this basis. So, the manufacturer will be held liable if they
have no reason to contemplate that an immediate inspection will occur. However, if there
is a warning to test the product or to use it in a particular way, and the claimant fails to
carry this out, this may be sufficient to constitute a break in the chain of causation. In
Holmes v Ashford [1950] 2 All ER 76, a hairdresser failed to test a hair dye in accordance
with instructions. This absolved the manufacturers from liability. See also Kubach v
Hollands [1937] 3 All ER 907.
Summary in relation to negligence and
defective products
• A manufacturer owes a duty of care to those who use its products or who come into
contact with them.
• Those repairing a product may also owe a duty, as may suppliers and distributors, if
they should have inspected the product.
• The loss of the product itself is rarely recoverable – this is pure economic loss.
• Breach must be established in the usual way – the existence of a 'defect' in a product
is likely to be evidence of breach, but may not be sufficient evidence in all cases.
• Proving a breach in relation to the design of a product, rather than the manufacturing
process, is particularly difficult.
• Causation must also be established. Difficulties can arise when trying to ascertain
whether goods should have been examined by manufacturer and consumer, and if so,
whether this has an impact on the manufacturer's liability.