Product liability specialist Antony Colman examines how product liability law has evolved and may continue to evolve in response to technological advances.
The Law of Negligence
On August 8, 1840, Mr Winterbottom was thrown from his seat and seriously injured while driving a horse-drawn mail coach which the defendant Wright had contracted with HM Postmaster General to supply and maintain. Winterbottom alleged that the trainer collapsed due to Wright’s failure to keep him in a safe condition.
The request was rejected. There was no contract between Winterbottom and Wright. The court described the claim that Mr Wright could be liable to anyone using the car as “absurd and outrageous”a “means of letting flow over us an infinity of actions”.
In 1909, Mr. MacPherson purchased a Buick motor vehicle from a New York dealership. He was thrown from his seat and seriously injured when the spokes of a wheel collapsed. The circumstances of the accident were almost the same as in Winterbottom vs. Wright, except that the defective product was now a horseless carriage. The issue was whether Buick owed a duty of care to anyone other than the immediate purchaser. The New York Court of Appeals refused to follow Winterbottom vs. Wright. “If the nature of a thing is such that it is reasonably certain to endanger life and physical integrity when done negligently, then it is a dangerous thing. Its nature warns of the consequences to be expected. If to the element of danger is added the knowledge that the thing will be used by persons other than the purchaser, and used without further testing, then, whatever the contract, the manufacturer of this dangerous thing is in the obligation to manufacture it with care. .”
In 1911 Frederick Winslow Taylor published “The Principles of Scientific Management”, which the Ford Motor Company adopted. Factory processes have been broken down into their constituent parts. As Henry Ford said: “The man who places a piece does not fix it. The man who puts on a bolt does not put on the nut; the man who puts the nut does not tighten it. A second pioneering feature of industrial production was the assembly line. “Every piece of work in the shop moves. No worker has anything to do with moving or lifting anything. Save ten steps a day for each of the 12,000 employees and you will have saved fifty miles of movement wasted and wasted energy. A third was the interchangeability of parts. There was not anymore “to file, grind, saw or hammer pieces to fit them.” Costs have dropped dramatically. Dangerous things were no longer reserved for the privileged few.
It was into this world that, on August 26, 1928, Mrs. Donoghue and her friend walked into a cafe in Paisley, Scotland. The friend placed an order which included a Scotsman ice float for Mrs. Donoghue. To create the float, the café owner poured some of the contents of a bottle of ginger beer into a glass containing ice cream. The bottle was sealed with a metal cap and was made of opaque glass, making it impossible to examine the contents beforehand. Ms Donoghue alleged that when her friend poured the rest of the ginger beer into the cup, a rotting snail appeared and as a result, Ms Donoghue suffered shock and gastroenteritis. Her friend having placed the order, there was no contract between Mrs. Donoghue and the owner of the cafe. Mrs Donoghue’s negligence claim against the maker of the ginger beer bottle was appealed to the House of Lords where, by a simple majority of three to two, the Law Lords affirmed the duty of maker, which Lord Atkin formulated as follows:
“a manufacturer of goods which he sells in such a form that he shows that he intends them to reach the final consumer in the form in which they left him without reasonable possibility of intermediate examination, and knowing that lack of care in preparing or placing the products will result in injury to life or property of the consumer, has a duty to the consumer to take such reasonable care.
Subsequent case law has extended the duty of care from manufacturers to retailers, distributors, installers, assemblers, repairers and other actors in the supply chain.
The Consumer Protection Act 1987
Products and production methods have evolved. Council Directive 85/374/EEC recognizes that “producer liability without fault is the only means of adequately solving the problem, specific to our age of increasing technicality, of a fair distribution of the risks inherent in technological production modern. ”
The Directive was implemented in the UK by Part I of the Consumer Protection Act 1987. Section 1(1) states that Part I has been enacted for the purpose of making provisions necessary to comply with the directive and should be interpreted accordingly. The main points are as follows.
- Producers are responsible for damage caused by a defect in their product. The person who suffered the damage is obliged to prove only the defect, the damage and the causal link between them. It is not necessary to prove fault.
- A product is defective when it fails to provide the safety which persons are generally entitled to expect having regard to all the circumstances, including the manner in which the product was marketed, relevant instructions or warnings, what it can reasonably be expected to be made with the product and the time at which it was put into circulation.
- Damage means death, personal injury and damage to or destruction of any property other than the defective product itself, provided that the property is of a type customarily intended for private use or consumption and that it was so used by the person suffering the loss.
- The liability extends to:
- the producer of a finished product;
- the producer of a constituent part;
- any person who, by affixing his name, trademark or any other distinctive sign to the product, presents himself as its producer;
- a person who imports a product into the UK for distribution as part of their business;
- where the producer cannot be identified, a supplier who fails to inform the injured party within a reasonable time of the identity of the producer or of his own supplier.
- It is a defense for such a person to show:
- that he did not put the product into circulation; Where
- that the defect did not exist when he put the product into circulation; Where
- that he did not manufacture the product for an economic purpose or within the framework of a commercial activity; Where
- that the defect was due to compliance with mandatory regulations; Where
- that the state of scientific and technical knowledge at the time the product was put into circulation was not such as to enable the existence of the defect to be discovered; Where
- in the case of a component manufacturer, that the defect was attributable to the design of the product in which the component was mounted or to the instructions given by the manufacturer of this product.
Section 6(6) of the 1987 Act inserted a new section 11A into the Limitation Act 1980 whereby:
- claims are subject to a limitation period of three years from the date on which the plaintiff became aware or should reasonably have become aware of the damage, the defect and the identity of the defendant; and
- the remedies conferred by law expire on the expiry of a period of 10 years from the date on which the defendant put into circulation the product which caused the damage.
Breach of a legal obligation
Section 11 of Part II of the 1987 Act provides for the development of safety regulations with the aim of ensuring the safety of goods. Section 41(1) of Part V provides that an obligation imposed by safety regulations is a duty owed to any person likely to be affected by an infraction, who may be prosecuted accordingly. Section 45 defines safety regulations as those made under section 11.
The practical effect of these provisions is that, in certain circumstances, a claimant whose claim does not fall under Part I of the 1987 Act may bring an action for breach of statutory duty without having to prove fault and without the defendant necessarily has:
- be the producer or one of the other persons to whom Part I of the 1987 Act applies; Where
- benefiting from (a) the exceptions provided in Part I or (b) the three-year limitation period for property damage claims or (c) the extinction of rights of action after 10 years from the date of supply.
An example of “our increasingly technical age” is vehicle automation. Driving aids such as cruise control are not new, but manufacturers are now offering increasing automation of acceleration, braking and steering. In the event of an accident, what level of safety can people generally expect? You could say that the way these vehicles are marketed invites drivers to gradually disengage with their feet, hands and eyes. Will clear instructions and warnings to remain alert and ready to assume control be helpful to the manufacturer in such circumstances? If an accident is unavoidable, is there a fault in a vehicle that is programmed to avoid a child at the expense of an elderly person? Is a software update a product? Is off-road driving something one could reasonably expect to do with an autonomous vehicle?
Product liability law will continue to evolve.