275	3â Development of negligence
	quality and fitness for purpose, which would include a claim for the value of
	the product itself.6
	Finally, defective products may give rise to criminal liability for unsafe goods
	under the General Product Safety Regulations 2005, SI 2005/1803, although
	such liability lies beyond the remit of this text. However, the link is import-
	ant since, if the criminal law framework succeeds in preventing unsafe goods
	from reaching the market, the incidence of product-related injuries and claims
	should be minimised. Unfortunately, this is not always the case as, on the one
	hand, unscrupulous traders will always seek to make money irrespective of any
	danger that the products might pose to product users and, on the other, users
	may be prepared to use a less safe product because it is cheaper.
	Q1 Consider the relationship between negligence, product liability and
	contractÂ	as forms of remedy for product-related injuries.

3â Development of negligence

(a)â Duty of care

Many product-related injuries are caused by faults that were introduced into the product while it was still under the control of the manufacturer and it is reasonable to expect that the manufacturer will be liable in tort in respect of injuries caused by such faults. Since the days of Donoghue v. Stevenson, itself a product liability case, a remedy has lain in tort through an action in negligence. Lord Atkin, in his oft-quoted judgment, defined the parameters of a manufacturer’s tortious liability thus:

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 reasonable care.7

Of course, the decision in Donoghue v. Stevenson impacted well beyond product liability cases and underpins the whole of the modern law of negligence, with its requirement for the existence of a duty of care, a breach of that duty and a proven causal link between that breach and the damage which ensued. Only by showing the existence of all three and proof that the damage was within the bounds of foreseeability, will the claimant be able to successfully claim compensation. In the current context, however, it is the impact of Donoghue v. Stevenson on product-related injuries that is of interest. To recap the facts, the

6Damages for the defective item itself cannot be claimed in strict liability, see Consumer Protection Act 1987, s.5(2).

7[1932] AC 562, 599.

276	Negligence and the rise of product liability
	claimant claimed damages for having suffered severe gastro-enteritis after con-
	suming some ginger beer, which had been bought by a friend and was packaged
	in a sealed dark opaque bottle. The allegation was that, after the claimant had
	consumed part of the drink, the remainder was poured out and found to con-
	tain the decomposed remains of a snail. As the friend had purchased the item,
	the claimant lacked contractual privity and so could not pursue a claim against
	the café from which the drink had been purchased. Instead, she chose to pursue
	a claim against the manufacturer. The Court of Session in Scotland (the events
	having occurred in Paisley) decided that there was no cause of action. The case
	was then sent to the House of Lords, which held that the manufacturer of goods
	does owe a duty of care to the ultimate user of those goods. Ironically, given
	the pre-eminence of this decision, the existence of the snail itself was never
	proven– when the case left the House of Lords, it was remitted to the Court of
	Session to apply the judgment to the facts of the case but the manufacturer died
	before this could happen and the claim was settled by an out-of-court payment
	of £100.
	While Lord Atkin referred specifically to the manufacturer of a product,
	there is no doubt that the principle includes wholesalers, distributors, assem-
	blers, retailers, and anyone else handling the product, to the extent that their
	negligent activities contribute to a fault in the product and a consequent injury.
	Clearly, there is a duty on everyone in the distributive chain to ensure that the
	goods are handled correctly and stored properly. Thus, for example, chilled food
	that is meant to be stored in a chill cabinet but is allowed to remain at room
	temperature will deteriorate faster and may cause actionable food poisoning
	even if eaten by the specified ‘use by’ date. In this situation, it will be the person
	incorrectly storing the food who will be liable and not the original producer
	who packed it.
	Q2 Consider the scope of the duty of care in product liability both in terms
	of the people who owe the duty and the breadth of situations in which it will
	arise.

(b)â To whom is the duty of care owed?

Donoghue established that the duty of care is owed to those persons who would be classed as your ‘neighbours’. In answer to the question ‘Who then, in law, is my neighbour?’ Lord Atkin opined that it is:

persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.8

8 [1932] AC 562, 580.

277 3â Development of negligence

In the context of a manufacturer of goods, there is no doubt that this necessarily includes the ultimate user of the product and anyone else who is sufficiently near to the product to be affected by the fault. Thus, for example, if an indoor firework has been made negligently and explodes when lit, it may injure not merely the person lighting it but also anyone standing close by. The damage might be physical, such as a burn, or property damage if, for example, a fire ensues. But it may go wider than that. If the tyre on a car has been negligently manufactured and an accident results, potential claimants would include the driver of the car together with any passengers but would also include any pedestrians or occupants of other cars that may become embroiled in the accident, as long as this was foreseeable. In respect of claims for nervous shock, it also includes those who come upon the aftermath of the accident and who have a special relationship with an injured party, e.g., the parent of an injured child.9

While the examples quoted above all relate to personal injury of foreseeable victims, the duty of care extends well beyond that. Foreseeable ‘neighbours’ to whom a duty of care would be owed would include businesses and other organisations which might suffer some property damage as a result of the negligent action of the manufacturer of the product or someone else in the distributive chain.

Q3 Does the neighbour principle adequately identify those who should have a valid tortious claim?

(c)â Standard of care

Negligence revolves around the concept of holding liable the person who is to blame for the incident and the consequent damage. As such, it is thought to be a moral approach to liability as it requires the defendant to face the consequences of his blameworthy actions. This thus demands identification of the standard of behaviour to be required of the defendant, for only by establishing the requisite level can a failure to meet it be proven. The standard of care in negligence is the standard of the reasonable man, the so-called ‘man on the Clapham omnibus’. However, the standard of care to be expected will rise in relation to the professional skills of the defendant, so that, in the words of McNair J:

The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill … it is sufficient if he exercises the ordinary skill of a competent man exercising that particular art.10

â 9

10

White and others v. Chief Constable of South Yorkshire [1998] 3 WLR 1510.

Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, 121. For further discussion of the standard of care in the provision of services see Part 2 Chapter 4.

278		Negligence and the rise of product liability
			Translating this into a product-related situation, it follows that manufac-
		turers must exercise the skills appropriate to the manufacture of that product
		range. This requires them to use relevant knowledge and skills to avoid negli-
		gent manufacture and thereby ensure that a product will not cause injury.11 As
	will be seen later in the chapter, a similar approach underpins strict liability,
	with its emphasis on the safety of the product. The standard of care applicable
	in negligence is decided by reference to what it was reasonable to expect of the
	manufacturer at the time that he manufactured the item, as it would be totally
	unreasonable to require him to exercise knowledge and skills not available at
	the time of manufacture. Negligence must be assessed in context– you cannot
	‘look at [a] 1947 accident with 1954 spectacles’.12
		(d)â Intermediate inspections
		Thus far, we have presumed that the product will be transferred from the manu-
		facturer to the ultimate injured user without any intermediate inspection.
		Indeed, Lord Atkin delineated the duty of the manufacturer on the basis that
		he intends the goods ‘to reach the ultimate consumer in the form in which they
		left him with no reasonable possibility of intermediate examination’.13 Where
		the product is sealed in a tin, bottle or jar, as occurred in Donoghue v. Stevenson
	itself, it is clearly the intention of the manufacturer that the product will reach
	the ultimate user in the form in which it left him and hence liability will fol-
	low. It would, in those circumstances, be unreasonable for the manufacturer to
	assume that any intermediate examination will occur. Consequently, the manu-
	facturer must ensure that the goods have been produced properly and, further,
	that they do not contain any extraneous substance that might adulterate them
	or pose a risk to the ultimate user. Where an intermediate examination does
	occur, the manufacturer will remain liable in respect of latent inherent defects
	that the examination would not reveal as long as it was his negligence that intro-
	duced the fault. If an item is clearly defective and a retailer, knowing that fact,
	proceeds to supply it and an ultimate user is subsequently injured, the retailer
	will also be responsible for his negligence in allowing the supply to take place.14
	11		Failure to manufacture a safe product might also give rise to criminal liability under the General
			Product Safety Regulations 2005, SI 2005/1803.
	12		Roe v. Minster of Health [1954] 2 All ER 131, 137, per Denning LJ. The case concerned the
			adulteration of an anaesthetic in 1947. Denning LJ was at pains to point out in his judgment
			that negligence must be considered in the context of the knowledge available at the time of the
			alleged negligence and cannot be judged against knowledge that became available later, even if
			the new knowledge would affect the defendant’s actions if the same situation were to arise again.
	13		[1932] AC 562, 599.
	14		He would also be criminally liable under the General Product Safety Regulations 2005, reg.
			8(1)(a), which makes it an offence to ‘expose or possess for supply, or offer or agree to supply,
			or supply a product to any person which he knows or should have presumed, on the basis of
			the information in his possession and as a professional, is a dangerous product’. The offence is
			committed by a ‘distributor’ who is defined in reg. 2 as being ‘a professional in the supply chain
			whose activity does not affect the safety properties of a product’.

279	3â Development of negligence

(e)â Breach of duty and causation

Having established that the defendant owes a duty of care to the claimant, the latter must show that there has been a breach of that duty and that he has suffered recoverable damage as a consequence. In practice, this will involve the claimant proving that the defendant’s actions have fallen below the standard of care to be expected of him and that, as a direct consequence of that failure, the claimant has suffered injury either to his person or his property. It is insufficient merely to establish that the defendant has breached the requisite duty of care. It is crucial that the causal link between that breach and the injury suffered by the claimant is proven.

When assessing whether a breach of care has occurred, the essential question is whether the manufacturer has fallen below the standard of care to be expected of him. This will include not merely considering the physical properties of the item but also any instructions for use and warnings that the manufacturer has chosen to provide to prospective users. He has a right to expect that users of products will exercise appropriate care for their own safety and wellbeing and, hence, there is no need to warn of obvious dangers.15 However, he is required to take into account vulnerable groups who foreseeably may use his product. The most obvious group is children and thus the standard of care to be expected of a manufacturer would include the provision of warnings stipulating a lower age limit for users of the product where appropriate, e.g., ‘not suitable for children under 3 years of age’. Equally, foreseeable use or abuse of a product by children might require the use of extra safety devices such as childproof lids on pharmaceutical containers. Of course, children are not the only potentially vulnerable group and manufacturers may need to make extra or alternative provision for the elderly or the disabled and provide them with appropriate warnings. The provision of warnings to a professional person who is going to use the product in a service offered to the ultimate user will often suffice.16 Thus, warning a doctor of the side-effects of a prescription-only drug would satisfy the requisite standard of care, the duty then moving to the doctor and pharmacist to pass on appropriate warnings to the patient. By contrast, warnings in respect of over-the-counter drugs must be included with the product either on the outer packaging or on a user leaflet in the box. There is no requirement that full details of a warning about a product be included in both places.17 In that situation, the manufacturer has a right to assume that the user will read the leaflet and not discard it.

15Farr v. Butters Brothers & Co. [1931] 2 KB 606.

16Holmes v. Ashford [1950] 2 All ER 76, in which a hairdresser ignored the warning on a bottle of hair dye to do a patch test prior to use. The customer suffered dermatitis from the use of the

product but the court held that the warning given to the hairdresser was sufficient to absolve the manufacturer from liability for negligence. The court held that it would be ‘unreasonable and impossible’ to expect the manufacturer to give a warning in a form that would definitely come to the attention of every customer.

17See Worsley v. Tambrands Ltd (unreported, 3 December 1999), a product liability case involving the use of tampons. A warning of the risk of toxic shock syndrome when using the product was