Negligence

Negligence

Contents

In addition to legislation passed by Parliament, English law consists of a body of law called common law. This has been developed over the years by the courts and by custom.

Claim in negligence

If you're a manufacturer, in addition to possibly being liable under the Consumer Protection Act 1987, you also have a common law duty to ensure that your product is safe.

If a consumer has suffered injury or loss as a result of your negligence in manufacturing your product, they may be entitled to damages. The claimant doesn't need to have a contract with the person they're suing in order to make a claim for negligence. If you have a duty of care to the customer, you'd be liable to them if you breached this duty and caused them damage.

Duty of care

Manufacturers and others have a duty to take reasonable care to ensure their products are safe. The manufacturer owes this duty to anyone that the manufacturer could reasonably foresee would use the goods. A distributor, retailer or importer could also be successfully sued for negligence if they acted without reasonable care and skill and could have reasonably foreseen that this would cause damage.

Breach of duty of care

A manufacturer won't be legally responsible for negligence if they took reasonable care but still manufactured a defective product. In order to be legally responsible for negligence, they must have failed to carry out the care and skill that a reasonable manufacturer would have exercised. This liability is less onerous than the strict liability under the Consumer Protection Act where a producer of a defective good is liable even if they took reasonable care to make it safe.

In deciding whether a manufacturer failed to take reasonable care, a court would consider factors such as:

  • The possibility of any injury occurring
  • Any safety standards that might be relevant
  • The seriousness of any injury that might be caused
  • The costs of removing the risk and whether it's possible.

A manufacturer who has taken reasonable care isn't liable for the negligence of a sub-contractor or of those who supply component parts. However, the manufacturer will be responsible for the negligence of any of its own employees or agents.

Defects

The person who causes the defects in a product is legally responsible for negligence if they didn't take the skill and care expected of the reasonable manufacturer or producer. There are 3 categories of defects in a product:

Defects in design

This happens when a manufacturer makes a product according to its design, but faults with the design make the product defective. It can include situations where the product should never have been made in the first place. It can also include something that lacks enough safety devices or that has component materials that aren't strong enough.

These types of defects tend to be common in manufacturing and can result in multiple, rather than isolated, cases of injury. Cars and other motor vehicles are often the best source of examples.

Defects in the manufacture

When the manufacturer makes a product in a way that wasn't intended, the defect is in the manufacture. Examples abound and range from contaminated food through to wrongly-assembled machinery. This type of defect will tend to be isolated and limited to single cases. However, there are many examples where a defect in the manufacture has led to multiple injuries.

Defects in the way the product is sold

This will arise when a product is sold without proper warnings or instructions. Warnings are necessary if a product is dangerous, particularly if the danger is hard to see. There are no definitive guidelines on how a product should be marketed. Every case should be examined on its own merits. If you're deciding how to market a dangerous product, you should consider:

  • How dangerous the product is
  • The cost of removing the danger
  • Whether the danger is hard to see
  • The number of previous accidents
  • The general standards in the industry
  • The seriousness of any injury that might be caused
  • Whether there is a culture of contempt towards the danger
  • Past warnings given or encouragement of dangerous activity.

You may need to give warnings after selling the product. This would include cases where the defect becomes apparent after selling the product. In some situations, you may have to recall the product.

Who is liable?

In a product liability claim, it can be very difficult to prove precisely who or what was responsible for the defect. Where it isn't possible for you to establish precisely what caused an accident, the claim will be decided on the balance of probability. This means that the event will be attributed to the most likely cause.

For example, the windscreen of a car suddenly shattered and injured the occupants of the car. It was found that the glass may have been strained when screwed into its frame by the manufacturers of the car. This would pass liability to the manufacturer of the car.

Damage

A person who is found to be negligent will have to pay damages to compensate for the reasonably foreseeable loss and damage that resulted.