Part 4 Chapter 1

Negligence and the Rise of

Product Liability

Contents

1â Introduction

This chapter looks at the development of tort law and its application to prod- uct-related injuries. Thus, it considers both the tort of negligence and the policy lying behind the development of strict liability.

The chapter is structured as follows. Section 2 considers the background to the development of the law of negligence and strict liability and the relationship between the two legal regimes.

Section 3 considers the development of the law of negligence and introduces the essential elements of the tort, namely, (i) the duty of care as enunciated in Donoghue v. Stevenson,1 which laid down that the manufacturer of a product owes a duty of care in respect of that product; (ii) the persons to whom the duty is owed as identified through the ‘neighbour principle’ as laid down by Lord Atkin in Donoghue v. Stevenson; (iii) the standard of care owed by the manufacturer; (iv) the impact of any intermediate inspection; (v) the need to establish a breach of the duty of care; and (vi) the impact of contributory negligence on liability.

Section 4 introduces the concept of strict liability and the change in emphasis away from the fault of the manufacturer and towards the defectiveness of the product.

1 [1932] AC 562.

2â Background

Tortious liability for injuries caused by defective products is relatively recent when compared with contractual liability. The contractual requirement of merchantable quality was recognised in the early nineteenth century,3 while negligence only came to the fore with the decision in Donoghue v. Stevenson4 in 1932. The advent of strict liability in the United Kingdom in Part I of the Consumer Protection Act 1987 further developed tortious liability and has resulted in the current two-strand regime, namely, negligence and product liability, both of which are important in providing comprehensive protection for both persons and businesses affected by defective products.

Strict liability has not replaced negligence; rather, the two regimes complement each other. Thus, claims for product-related death and personal injury can be made through both regimes, although, it may be preferable to make a claim under strict liability as it merely requires proof of defectiveness and causation without any requirement to prove fault. However, if the tenyear cut-off period for a strict liability claim has expired, the claimant may still be able to claim in negligence, assuming that the claim complies with the applicable time limits.5 Further, negligence remains crucial in respect of claims for property damage as the two systems diverge in respect of what liability will arise. While damage to personal property over £275 can be claimed under both systems, tortious claims for damage to all business property and personal property of less than £275 can only be made through negligence. Given the potential range of damage that may be caused by a single incident, it is entirely possible that a claim will include both negligence and strict liability. Further, if the injured party purchased the defective product, a claim may also lie in contract for breach of terms relating to satisfactory