Product liability law in a changing world

Product liability specialist Antony Colman considers how the law of product liability has evolved and may continue to evolve in response to advancing technology.

The law of negligence

On 8 August 1840, Mr Winterbottom was thrown from his seat and seriously injured whilst driving a horse-drawn mail-coach which the defendant Wright had contracted with HM Postmaster General to supply and maintain. Winterbottom alleged that the coach had collapsed due to Wright’s failure to keep it in a safe condition.

The claim was dismissed. There was no contract between Winterbottom and Wright. The court described the contention that Mr Wright could be liable to anyone who might use the carriage as “absurd and outrageous”, a “means of letting in upon us an infinity of actions.”

In 1909, Mr MacPherson purchased a Buick motor vehicle from a dealer in New York. He was thrown from his seat and seriously injured when the spokes of a wheel collapsed. The circumstances of the accident were much the same as in Winterbottom v Wright, save that the defective product was now a horseless carriage. The question was whether Buick owed a duty of care to anyone other than the immediate purchaser. The New York Court of Appeal declined to follow Winterbottom v Wright. “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”

In 1911, Frederick Winslow Taylor published “The Principles of Scientific Management”, which the Ford Motor Company embraced. Factory processes were broken down into their constituent elements. As stated by Henry Ford: “The man who places a part does not fasten it. The man who puts in a bolt does not put on the nut; the man who puts on 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 workman has anything to do with moving or lifting anything. Save ten steps a day for each of 12,000 employees and you will have saved fifty miles of wasted motion and misspent energy.” A third was the interchangeability of parts. There was no more “filing, grinding, sawing or hammering of parts to make them fit.” Costs fell dramatically. Things of danger were no longer confined to the privileged few.

It was in this world that, on 26 August 1928, Mrs Donoghue and her friend entered a café in Paisley, Scotland. The friend placed an order which included a Scotsman ice-cream float for Mrs Donoghue. To create the float, the café owner poured part of the contents of a bottle of ginger beer into a tumbler containing ice cream. The bottle was sealed with a metal cap and was made of opaque glass, making prior examination of the contents impossible. Mrs Donoghue alleged that when her friend poured the remaining ginger beer into the tumbler, a decomposed snail emerged and that as a result, Mrs Donoghue suffered shock and gastro-enteritis. Her friend having placed the order, there was no contract between Mrs Donoghue and the café owner. Mrs Donoghue’s claim in negligence against the manufacturer of the bottle of ginger beer went on appeal to the House of Lords where, by a bare majority of three to two, the Law Lords affirmed the duty of a manufacturer, which Lord Atkin formulated as follows:

“a manufacturer of products, 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 consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

Subsequent case law has extended the duty of care from manufacturers to retailers, distributors, installers, assemblers, repairers and others in the supply chain.

The Consumer Protection Act 1987

Products and production methods moved on. Council Directive 85/374/EEC recognised that “liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production.”

The Directive was implemented in the United Kingdom by Part I of the Consumer Protection Act 1987. Section 1(1) states that Part I was enacted for the purpose of making such provision as was necessary to comply with the Directive and shall be construed accordingly. The main points are as follows.

1. Producers are liable for damage caused by a defect in their product. The person who suffered the damage is required to prove only the defect, the damage and the causal relationship between them. There is no need to prove fault.
2. A product is defective when it does not provide the safety which persons generally are entitled to expect taking all the circumstances into account, including the manner in which the product has been marketed, any relevant instructions or warnings, what might reasonably be expected to be done with the product and the time it was put into circulation.
3. Damage means death, personal injury and damage to, or destruction of, any item of property other than the defective product itself, provided that the property is of a type ordinarily intended for private use or consumption and that it was so used by the person suffering the loss.
4. Liability extends to:
   • the producer of a finished product;
   • the producer of a component part;
   • any person who, by putting his name, trademark or other distinguishing feature on the product, presents himself as its producer;
   • a person who imports a product into the UK for distribution in the course of business;
   • where the producer cannot be identified, a supplier who fails within a reasonable time to inform the person suffering the loss of the identity of the producer or his own supplier.
5. It is a defence for such a person to show:
   • that he did not put the product into circulation; or
   • that the defect did not exist at the time he put product into circulation; or
   • that he did not manufacture the product for an economic purpose or in the course of business; or
   • that the defect was due to compliance with mandatory regulations; or
   • 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; or
   • in the case of a component manufacturer, that the defect was attributable to the design of the product in which the component was fitted or to the instructions given by the manufacturer of that product.

Section 6(6) of the 1987 Act inserted a new section 11A into the Limitation Act 1980 whereby:

1. claims are subject to a limitation period of three years from the date on which the claimant became aware, or should reasonably have become aware, of the damage, the defect and the identity of the defendant; and
2. rights of action conferred by the Act are extinguished upon 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 statutory duty

Section 11 in Part II of the 1987 Act provides for the making of safety regulations for the purpose of securing that goods are safe. Section 41(1) in Part V provides that an obligation imposed by safety regulations shall be a duty owed to any person who may be affected by a contravention, which shall be actionable accordingly. Section 45 defines safety regulations to mean those made under section 11.

The practical effect of these provisions is that in certain circumstances, a claimant whose claim does not fall within Part I of the 1987 Act may have an action for breach of statutory duty without having to prove fault and without the defendant necessarily:

1. being the producer or one of the other persons to whom Part I of the 1987 Act applies; or
2. having the benefit of (a) the defences provided for in Part I or (b) the three-year limitation period for claims for property damage or (c) the extinction of rights of action after 10 years from the date of supply.

The future

An example of “our age of increasing technicality” is vehicle automation. Driver assistance such as cruise control is not new, but manufacturers now offer increasing automation of acceleration, braking and steering. In the event of an accident, what level of safety are persons generally entitled to expect? The manner in which such vehicles are marketed could be said to invite drivers progressively to disengage feet, hands and eyes. Will prominent instructions and warnings to remain alert and ready to assume control avail the manufacturer in such circumstances? If an accident is inevitable, is there a defect in a vehicle which is programmed to avoid a child at the cost of an elderly person? Is a software update a product? Is off-road driving something that might reasonably be expected to be done with an autonomous vehicle?

The law of product liability will continue to evolve.

For further information, please contact Antony Colman or a member of the product liability team.