Products Liability Pt. 1 Liability for Defective Products Under Tort of Negligence

Question 1

Donoghue

v. Stevenson

Answer 1

held that a consumer could sue the manufacturer of a product using
the law of tort. It was held that a manufacturer owed a duty of care to the ultimate
consumer of goods, or the end-user

Question 2

What must the plaintiff prove in the tort of negligence to prove liability?

Answer 2

Liability under the tort of negligence is dependent on the plaintiff proving fault on
the defendant’s part. In other words the plaintiff must show the defendant did not
take reasonable care, or fell below the standard of reasonable care in all the
circumstances of the case.

Question 3

Power v. Bedford Motor Company [1959] IR 391

Answer 3

Extended liability for a duty to care to those carrying out repairs.

the duty to exercise care was not confined to manufacturers of goods but also
extended to persons undertaking repairs to or carrying out work on the product in
question. In that case the defendant was a garage company which had negligently
repaired a car. The defendant was found liable.

Question 4

Gallagher v. McDowell Limited [1961] NI 26

Answer 4

held that the defendant building contractors were liable to the plaintiff for injuries
caused by a defective floorboard installed in a house. In particular the court held
there was no distinction between a product and real property such as a house.

Question 5

Who may owe a duty to care to their clients?

Answer 5

1. Where a contract exists
2. Building contractors
3. Suppliers
4. Retailers,
5. Donor of a gift
6. Those undertaking repairs
7. Manufacturers of goods

Question 6

Fleming v. Henry Denny & Sons Limited (Supreme Court, 29th July, 1955)

Answer 6

held that a manufacturer who is supplied with component parts or ingredients by a
supplier owes a duty of care to make sure the finished product is not defective.
However, he can rely on the supplier of the component part to take care that what
is supplied is free from defect. In Fleming the ingredients supplied to make black
pudding contained a piece of steel. Kingsmill Moore J explained that “a
manufacturer … may … discharge his duty by obtaining the ingredients from firms
of high repute who have a like responsibility to see that the ingredients are free
from harmful substances”. However, the learned judge indicated that this may not
be so in every case and that “there may be special facts which require special
precautions”.

Question 7

To Whom is a duty of care owed?

Answer 7

To the ultimate consumer.

Question 8

How is the standard of care determined?

Answer 8

The duty is to take reasonable care. However, the standard of
care will depend on the circumstances of the case. The usual factors will be
considered in determining the appropriate standard of care in the circumstances
of a particular case. Namely,

(1) the probability of an accident occurring,
(2) the gravity of the threatened injury,
(3) the social utility of the defendant’s conduct and
(4) the cost of eliminating the risk

Question 9

What can a plaintiff claim for in tort for a defective product?

Answer 9

Where a product contains a dangerous defect the defendant will be
liable to the plaintiff for physical injury and property damage caused as a result of
the defect, but not for the damage caused to or the loss in value of the defective
product itself because the appropriate remedy in those circumstances is in contract
and under consumer protection legislation

Question 10

What are distinctions for a dangerous product?

Answer 10

(a) products which carry a high level of risk of danger and therefore a
higher duty of care on the part of the defendant;

(b) products which pose some risk of danger and which usually require a
defendant to warn a consumer or user of the product of a known
danger; and

(c) products which contain non-dangerous defects

It is also customary to distinguish between (a) manufacturing defects, (b) design
defects and (c) failure to warn or give instructions about defects

Question 11

Products can be dangerous for a variety of reasons, but the danger can be
grouped into three general categories, any one of which will be sufficient to
give rise to a duty of care –What are they and discuss them?

Answer 11

1. design defects, At the design stage there is a duty to consider safety
   aspects of the product such as the provision of suitable guard mechanisms
   for moving parts.
2. quality of workmanship; Safe designs may become dangerous products by
   deficient production, so the duty of care includes reasonable quality control
3. inherent dangers.
   … the third category deals with products that have been designed and
   made in as safe a manner as possible, but carry inevitable risks. In the
   case of such products there may be a duty to provide information to assist
   in the safe use of them and perhaps even a duty to consider the wisdom of
   allowing them into circulation at all
   .

Question 12

The Duty to Warn in Respect of Dangerous Products

Answer 12

In many instances it will be sufficient for the defendant to have warned the plaintiff of the danger. This is particularly so where a product is not inherently dangerous or the risk of danger is relatively low. Where a product is inherently dangerous or carries a high risk of danger a warning is the minimum level of reasonable care required and, in the particular circumstances, more care may be required.

Question 13

Kearney v. Paul & Vincent Limited

Answer 13

The extent of the duty of care owed in respect of products which are not inherently dangerous was considered.

Barron J said that “a manufacturer of a product which is not dangerous in itself is not absolved from all duty of care to the users of his product”. The court held that the extent of the duty of care is to be determined having regard to what the defendant knew or ought to have known when he released the product onto the market.

Question 14

O’Byrne v. Gloucester

Answer 14

upheld the finding of the High Court that the makers of a cotton shirt were liable to the plaintiff for failure to attach a warning to the shirt that it was highly flammable. Finlay CJ said:
Having regard to the nature of the risk involved . . . namely physical injury to the wearer, which was a danger foreseeable by the defendants, and having regard to the simplicity of the precaution which it is alleged the defendants should have taken, namely, the attaching to the garment of a simple warning . . . this was a precaution which a reasonably careful manufacturer and vendor of this type of clothing should have taken.

Question 15

Rivtow Marine Ltd v. Washington Iron Works (1973)

Answer 15

Canadian Case where if a manufacturer becomes aware of a danger in a product after it has been put on the market he must take reasonable steps to inform customers of the potential danger.

Question 16

Browne v. Primark t/a Penneys

Answer 16

Pajamas- retailer warned of risk of fire. Child played with matches and caught fire. They sued the retailer saying that they should have used more flame resistant clothing. Primark was found not liable as a careful trader should not have to as a matter of legal duty at common law observe the higher statndard of safety claimed on behalf of the plaintiff.

Question 17

Cassells v. Marks & Spencer plc,

Answer 17

Children’s night dresses need to be flame retardant in Ireland because you are more likely to be near a fire at night to keep warm. Day dresses do not require this. Her day dress caught fire. It was found Marks & Spencer did not have to compromise the market for cotton dresses to abide by the risks to children catching fire.

Question 18

Duffy v. Rooney and Dunnes Stores (

Answer 18

Laffoy J held that a reasonably prudent manufacturer or retailer, if it had properly addressed the issue, would have affixed a label on the coat warning the user that it should be kept away from fire. Again the court was influenced by (

a) the gravity of the consequences of fire accidents for young children,
(b) the likelihood of the accident occurring: gas heaters and open fires were a common feature of domestic life in Ireland and
(c) the relatively low cost of labelling garments.

Plaintiff still didn’t win because her undergarments did have the warning label and it is unlikely that she would have taken her coat off near the fire. She was unable to prove the defendant caused the injuries.

Question 19

Products Which Carry a High Risk of Danger

Answer 19

Where a product carries a high risk of causing injury something more than a warning is required.

Question 20

Bolands Limited v. Trouw Ireland Limited

Answer 20

a person in control of a dangerous substance, whether as a supplier, manufacturer or vendor, has a duty to take reasonable care that any person acquiring it from him, whether by sale or otherwise, does not suffer injury or loss”. The dangerous substance in that case was a chemical drug, namely poultry foodmix. However, the substance was not inherently dangerous and would only be dangerous if administered in high doses.

Question 21

Best v. Wellcome Foundation Limited

Answer 21

The defendant created vaccines and did not meet the acceptable standards for the DTP vaccine and it could cause brain damage if administered. The plaintiff was injured by this.

The Supreme Court upheld the findings of the High Court that the defendant manufacturer had acted negligently. It was held that at the time of the manufacture of the vaccine there was a considerable body of scientific opinion of a possibility that the vaccine might cause brain damage in a small number of children to whom it was administered. Accordingly, the defendant was under a duty to exercise a high degree of care in relation to testing the vaccine before it was released on the market. Finlay CJ and Egan J held that merely complying with mandatory or minimum requirements imposed by national health authorities in the area in which the vaccine was manufactured, or to rely on the point of view of one side only of the scientific debate, would not necessarily have discharged the duty to take reasonable care.

Question 22

Ward v. McMaster

Answer 22

defendant was liable for the cost of repairing latent, or hidden, dangerous defects in a bungalow which he built. Costello J said that “that duty was not confined to avoiding foreseeable harm to persons or property other than the bungalow itself … but extended to a duty to avoid causing the purchaser consequential financial loss arising from hidden defects in the bungalow itself”.

Question 23

Contributory Negligence

Answer 23

The general principles of contributory negligence apply. In addition, s 34(2)(f) of the Civil Liability Act 1961 (which concerns contributory negligence) provides:

[W]here an action is brought for negligence in respect of a thing that has caused damage, the fact that there was a reasonable possibility or probability of examination after the thing had left the hands of the defendant shall not, by itself, exclude the defendant’s duty, but may be taken as evidence that he was not in the circumstances negligent in parting with the thing in its dangerous state.

Question 24

Donoghue v. Stevenson and contributory negligence

Answer 24

In Donoghue v. Stevenson Lord Atkin said that the duty was owed, inter alia, because there was no “reasonable possibility of intermediate examination” by the purchaser or consumer of the product, the product in question being presented in an opaque glass bottle. In that case it would appear a defendant could not rely on the provisions of s 34(2)(f) as there was no “reasonable possibility or probability of examinations after the thing had left the hands of the defendant”.

Question 25

Non-dangerous Defects

Answer 25

In most cases non-dangerous defects will give rise to pure economic loss only. In respect of a house, for example, a non-dangerous defect may reduce the value of the house or the owner may have to spend money to repair the defect for his comfort and convenience, rather than out of necessity to protect his health and safety. The argument has been made that such loss should be remedied in contract rather than tort. McMahon J in Colgan v. Connolly Construction Company (Ireland) Limited [1980] ILRM 33 pointed out that where a defect in the product does not cause – or have the potential to cause - physical injury or property damage - other than damage to the defective product itself - then the rules of negligence and of product liability do not apply. The law of contract and the Sale of Goods and Supply of Services Acts 1893-1980 may provide a remedy, however, in respect of defects relating to the quality of the product.

Question 26

Colgan v. Connolly Construction Company

Answer 26

Where defects are not dangerous but cause economic loss, there can be recovery under contract law only

Question 27

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

Answer 27

UK case:

the House of Lords allowed recovery for non-dangerous defects in tort. In Junior Books, the plaintiffs sued the defendants, who were specialist flooring contractors, who had been engaged as subcontractors to lay a floor in the plaintiff’s factory. The flooring turned out to be defective. The floor had to be re-laid and the premises closed for a time at considerable expense and loss of profits for the plaintiffs, although no one had been physically injured as a result of the defect and the defect did not cause any damage to the plaintiff’s property. It was found the defendants were specialists and the plaintiffs had relied on their special skill and expertise, and that this created a sufficient degree of proximity to fall within the ambit of the duty of care.

Question 28

Ward v. McMaster [1985] IR 29 (HC); [1988] IR 337 (SC)

Answer 28

Junior Books, the UK case about recovering for economic loss where there was a floor that needed to be redone for a factory that lost the company down time.

Was endorsed by the Irish High Court.

In this case McMaster built a bungalow with both dangerous and non-dangerous defects. The plaintiffs had difficulties with dampness and a smoking chimney. The plaintiffs had the bungalow surveyed by an engineer who reported that it was structurally unsound, a source of danger and a risk to health. The plaintiffs were advised to abandon the bungalow which they did. The High Court found that all items of floor construction were sub-standard; that the foundation was structurally unsound and unsafe; that there were noticeable slopes in floors and ceilings and poor timberwork; all being “hidden” defects, in the sense that they were not discoverable by the sort of examination which a lay person with no professional qualifications would be expected to carry out. Costello J (as he then was) held that the defendant builder owed a duty of care to the plaintiffs not only to avoid dangerous defects but also to avoid defects in the quality of the work and to avoid hidden defects which would cause the plaintiffs inconvenience and discomfort.