NEGLIGENCE AND STRICT LIABILITY

In Donoghue vs. Stevenson (1932) AC 562 at 599, Lord Atkins stated the principle of law as follows:

“A manufacturer of a product which he sells in such a form as to show 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 consumers life or property, owes a duty to the consumer to take reasonable care.

With the aid of relevant authorities discuss the application of the above preposition in modern law of negligence

Negligence as a tort is a breach of a legal duty to take care which results in damages or injury to the claimant.

The case of Blyth Vs. Birmingham water works (1956) 11 EX 781 negligence was defined as the act or omission to do something which a reasonable man, guided upon certain considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man wouldn’t do.

For negligence to be established the following elements are essential:

1. Duty of care: this is the obligation often legally sanctioned in negligence cases, a recognized requirement to observe a specific standard of conduct.

It’s a core element in the tort of negligence and establishes reasonable care to our neighbours thus answers who is our neighbor under the neighbor principle,

2. Breach of duty of care: this creates the tests of proving whether such duty of care has been breached and how a potential defendant will be held liable when he falls below the standard of a reasonable person.

3. that the claimant has suffered damages or injury resulting from the defendants breach of duty of care being the third element in proving negligence, the plaintiff must show that as a result of the defendants actions he/she has suffered injury or damages directly from the defendants duty of care thus establishing the element of causation of fact and of law.

Duty of care as an element in negligence does not restrict itself on the manufacturers; it widens to cover those in business of common careers, persons using the highway and other places.

In order to discover the duty of care owed by the manufacturer to the consumer, Lord Atkins in Donoghue vs. Stevenson stated that manufacturer owes a duty of care to the consumer in case of breach of duty of care, the rationale is that the manufacturer must exercise a duty of care whenever he /she engages in the business of production and distribution of his product to the consumer.

It also entails reasonable care be exercised by the manufacturer and the assembler .unlike the maxim in caveat emptor the tide of law has shifted increasingly towards protection of the buyer or ultimate consumer, the manufacturer must be aware(caveat venditor).

The relationship between the manufacturer and the consumer is only determined under product liability where in Stapleton’s case(1994) it was defined as the   responsibility of any or all parties along the chain of manufacturing of any product for damages caused by such a product.

Therefore the manufacturer will be held liable under the following conditions:-

a) Where the product is found to be defective and causes injury/damage to the consumer

In Grant vs. Australian knitting mills ltd (1936) AC 86

The Privy Council held that the defendants were liable to the plaintiff

b) Where the manufacturer fails to take reasonable care and precaution at the time of packaging, in that the risk of contamination is obvious

In Donoghue vs. Stevenson (1932) AC 562

The manufacturer was held to be liable in negligence as he owed a duty of care to the plaintiff.

c) Failure to indicate warnings, specifications as to the use and content of the product.

d) Failure to recall the product upon realizing it’s defective and may cause injury to the consumers.

e) Failure to carry out effective tests about the product suitability before dispatch in the market for consumption.

Although the manufacturer carries on his shoulder that duty of care for a product manufactured by him, threefold tests are used by courts today as to tress the duty of care owed by the manufacturer to the consumer and this is laid down in the case of Caparo vs. Dickman (1990) 2 AC 605 to the effect that harm alleged must be:-

i) Reasonably foreseeable.

In Jolly vs. Sutton (2000) 1 WLR 1082, the House of Lords allowed the appeal; the risk was that children meddled with the boat at the risk of some physical injury and that the actual injury fell within that description.

ii) There must be a relationship of proximity between the plaintiff and the defendant

In Home Office vs. Dorset Yatch Co Ltd (1970) AC 1004, the House of Lords held that the home office owed a duty of care for their omission as they were in a position of control over the 3^rd party who caused the damage and it was foreseeable that harm would result from their actions.

iii) It must be fair, just and reasonable to impose liability.

In Hill vs. Chief Constable of West Yorkshire (1988) 2 WLR 1049, the House of Lords held that no duty of care was owed to the plaintiff, Liability on the manufacturer towards duty owed will not succeed if the manufacturer proves the following circumstances.

a) That the product in issue was tempered with by the distributor or the vendor in the process of reaching its ultimate consumer and he was not the one, this normally will need him to prove the seal and measures did by him to ensure safety.

b) Where upon the manufacturer detects the defect on the product and recalls such a product, if one decides to retain the same and in the long run gets injured the manufacturer will not be held liable. Fore- instance Samsung recalled galaxy note 7 phones for their exploding habits in case the user retains it, the manufacturer won’t be held liable.

c) Where the manufacturer inscribes warnings and prescription as to use and cautions fore- instance British American tobacco inscribes on sticks and packets of cigarettes that “cigarette smoking can be harmful to your health” now in case the consumer continues and is diagnosed with lung cancer being as a result of smoking that particular product, the manufacturer will not be held liable.

In order for the manufacturer to successfully defend against a tort of negligence under product liability the defendant will rely on three doctrines: contributory negligence, comparative fault and assumption of risk.

In a nutshell therefore, even though the duty of care is owed by the manufacturer to the ultimate consumer, the manufacturer has no duty to warn of hazard resulting from non-foreseeable misuse of the product nor can he be liable when usage itself is nonforeseeble and for a product which is unreasonably dangerous when it causes allergic reaction the manufacturer is not chargeable with a duty to warn of possible allergic reaction.