Learning Outcomes
This article outlines the common law principles governing liability for defective products through the tort of negligence. It focuses on how a duty of care is established between manufacturers and consumers, what constitutes a breach of that duty, and the rules surrounding causation and remoteness of damage. Your understanding of these elements is essential for answering SQE1 questions involving harm caused by faulty goods, enabling you to identify liability and apply relevant legal rules effectively.
SQE1 Syllabus
For SQE1, you need a practical understanding of how negligence principles apply to product liability claims. Concentrate your revision on:
- Establishing the manufacturer's duty of care to the consumer, referencing the 'neighbour principle' and its application.
- Identifying the standard of care expected from a reasonable manufacturer.
- Determining when a breach of duty occurs in the context of defective products.
- Applying the rules of causation (factual and legal) to link the defect to the claimant's loss.
- Recognising relevant defences available to a manufacturer in a negligence claim.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What principle established the manufacturer's duty of care towards the ultimate consumer?
- True or False: A manufacturer is only liable for defects they actually knew about.
- Can a retailer generally be held liable in negligence for supplying a defective product manufactured by someone else?
- What test is primarily used to establish factual causation in negligence?
Introduction
When a product causes harm due to a defect, the injured party may seek compensation through the law of tort. While statutory provisions like the Consumer Protection Act 1987 offer a route based on strict liability (covered elsewhere), claims can also be brought under the common law tort of negligence. This requires the claimant to prove that the defendant (often the manufacturer) owed a duty of care, breached that duty, and that this breach caused the claimant's damage. Understanding these common law principles is essential for SQE1.
Duty of Care in Product Liability
The basis for a manufacturer's duty of care in negligence was laid down in the landmark case of Donoghue v Stevenson [1932] AC 562. This case established the 'neighbour principle', requiring individuals to take reasonable care to avoid acts or omissions that could foreseeably injure those closely and directly affected by their actions.
Specifically relating to products, Donoghue v Stevenson established the 'narrow rule': a manufacturer owes a duty of care to the ultimate consumer of their product. This duty arises when the product is intended to reach the consumer in the form it left the manufacturer, with no reasonable possibility of intermediate examination that would reveal the defect.
Key Term: Manufacturer In product liability negligence, this term is interpreted broadly to include not just the original maker but also assemblers, installers, repairers, and sometimes even suppliers if they ought to have inspected the goods.
Key Term: Product This encompasses the item itself and includes packaging, labelling, and instructions provided with it. Liability can arise from defects in any of these components.
Key Term: Ultimate Consumer Refers to anyone who could foreseeably be harmed by a defect in the product, not just the person who purchased it.
Intermediate Examination
A key aspect of the narrow rule is the possibility of intermediate examination. If it is reasonably anticipated that someone (like a retailer or the consumer themselves) will examine the product before use in a way that should reveal the defect, the manufacturer's duty may be discharged. The chain of causation might be broken.
However, the mere possibility of examination is not enough; there must be a reasonable probability or expectation of such an examination occurring. If the defect is hidden and unlikely to be discovered through reasonable inspection, the manufacturer's duty remains.
Worked Example 1.1
A company manufactures sealed plastic bottles of fruit juice. Due to a fault in the bottling process, a shard of glass enters one bottle. The bottle is sold by a retailer to Chloe, who gives it to her friend, David. David drinks the juice and swallows the glass, suffering injury. Is an examination by Chloe or the retailer likely to break the chain of causation?
Answer: Probably not. The product is sealed, and the defect (glass inside) is hidden. There is no reasonable probability that either the retailer or Chloe would open and inspect the contents in a way that would reveal the glass shard before David consumed it. The manufacturer likely still owes a duty to David.
Breach of Duty
A manufacturer breaches their duty of care if they fail to meet the standard of a reasonably competent manufacturer in the same field. This involves taking reasonable steps to ensure the product is safe for its intended use.
Establishing Breach
Proving breach can be challenging for claimants as manufacturing processes are often complex and not directly observable. Courts may consider:
- The design of the product.
- The manufacturing process and quality control measures.
- The adequacy of warnings or instructions provided.
- Compliance with industry standards and regulations (though compliance is not conclusive proof of reasonable care).
In some cases, the existence of a defect itself might allow a court to infer negligence, especially if the product was under the manufacturer's control and the defect would not normally occur without carelessness (applying principles similar to res ipsa loquitur, though its direct application in product liability was doubted in Donoghue).
Worked Example 1.2
Beta Ltd manufactures electric kettles. One kettle model has a known design flaw where the handle can detach when the kettle is full of boiling water, but Beta Ltd decides not to recall the model due to cost. Sarah purchases one, and the handle detaches, causing her severe burns. Has Beta Ltd breached its duty?
Answer: Yes, very likely. A reasonable manufacturer, knowing of such a dangerous defect, would be expected to take steps like recalling the product or issuing prominent warnings. Failing to do so falls below the required standard of care.
Causation
As in any negligence claim, the claimant must prove that the manufacturer's breach of duty caused the damage suffered. This involves establishing both factual and legal causation.
Factual Causation ('But For' Test)
The claimant must show that, but for the manufacturer's negligence (leading to the defect), the damage would not have occurred. This can be difficult if there are multiple potential causes or a long time lapse between manufacture and injury.
Legal Causation (Remoteness)
The type of damage suffered must be a reasonably foreseeable consequence of the manufacturer's breach. The principle from The Wagon Mound (No 1) applies. However, the 'egg-shell skull' rule also applies, meaning the manufacturer is liable for the full extent of the claimant's injury, even if it's more severe than expected due to a pre-existing vulnerability, provided the type of injury was foreseeable.
Worked Example 1.3
Ahmed buys a ladder manufactured by LadderCo. Due to a negligent manufacturing process, a rung is weakened. While Ahmed is using the ladder correctly, the rung breaks, causing him to fall and break his arm. Medical evidence shows Ahmed has unusually brittle bones, making the fracture much worse than it would otherwise have been. Is LadderCo liable for the full extent of Ahmed's injury?
Answer: Yes. It is reasonably foreseeable that a defective ladder rung breaking could cause a user to fall and suffer personal injury (like a broken arm). Although the extent of Ahmed's injury was unforeseeable due to his brittle bones, the type of injury (a fracture from a fall) was foreseeable. Under the 'egg-shell skull' rule, LadderCo must take the victim as they find them and is liable for the full extent of the injury.
Defences to Negligence Claims
Manufacturers facing negligence claims for defective products may raise general negligence defences.
Contributory Negligence
If the claimant failed to take reasonable care for their own safety, and this contributed to their injury (e.g., misusing the product despite clear warnings), their damages may be reduced under the Law Reform (Contributory Negligence) Act 1945.
Voluntary Assumption of Risk (Volenti Non Fit Injuria)
This defence requires showing the claimant had full knowledge of the specific risk caused by the defect and voluntarily agreed to accept that risk. It is rarely successful in product liability cases, as consumers do not typically consent to defects.
Exclusion of Liability
Attempts by manufacturers (acting in the course of business) to exclude liability for death or personal injury caused by negligence are void under the Unfair Contract Terms Act 1977 (for business-to-business contexts) or the Consumer Rights Act 2015 (for trader-to-consumer contexts). Exclusions for other types of damage (e.g., property damage) are subject to tests of reasonableness (UCTA) or fairness (CRA).
Exam Warning
Remember that a claim in negligence focuses on the manufacturer's fault (failure to take reasonable care). This differs significantly from a claim under the Consumer Protection Act 1987, which imposes strict liability (liability without needing to prove fault) for damage caused by defective products. Ensure you apply the correct principles depending on the basis of the claim mentioned in an SQE question.
Key Point Checklist
This article has covered the following key knowledge points:
- Product liability in negligence is based on the common law duty of care owed by manufacturers to consumers.
- The duty originates from the 'neighbour principle' and 'narrow rule' in Donoghue v Stevenson.
- The duty applies broadly to manufacturers, assemblers, repairers, and sometimes suppliers.
- Liability covers personal injury and damage to other property, but not pure economic loss (including damage to the defective product itself).
- A reasonable possibility of intermediate examination may break the chain of causation.
- Breach of duty occurs if the manufacturer fails to meet the standard of a reasonably competent manufacturer.
- Causation requires proof that the breach caused the damage (factual causation) and that the damage was reasonably foreseeable (legal causation/remoteness).
- Defences like contributory negligence may apply, but consent is rare, and exclusions for personal injury are generally void.
Key Terms and Concepts
- Manufacturer
- Product
- Ultimate Consumer
