1, Introduction

People suffered serious injuries by the faulty goods is a common performance in our
daily life because of the manufacturers’ negligence. Negligence is a legal concept in
the common law legal systems which to lead to personal injuries, economic loss,
omissions and damage to property caused by manufacturer’s defective products under
the tort of negligence. (John)

2, Tort of Negligence
Although there were some attempts in the late 19th to establish a general system about
negligence, there was no accepted test until 1932. The case of Donoghue v. Stevenson
1932 illustrates the law of negligence, laying the foundations of the fault principle
around the Commonwealth（Catherine and Frances）: Mrs. Donohue’s friend bought
a bottle of ginger beer to her. But she saw a decomposed snail into the remainder. She
suffered gastro-enteritis as a result. But there was no contractual relationship between
Donoghue and the café. So she started an action to against the manufacturer. Finally,
the manufacturer admitted he had been negligent.
(http://en.wikipedia.org/wiki/Negligence, 27 Nov 2009)For the benefit of future cases,
it introduced how to establish a negligence claim.

The tort of negligence comprises three elements: a duty of care, breach of that duty,
and damage resulting from the breach. Each of these aspects must be proved – fail to
prove one of these and there can be no negligence claim.

1, The Duty of Care

The judgment stipulated who has the duty of negligence from the case Donoghue v
Stevenson. Lord Aitkin created a principle called ‘neighbour principle’. According to
Lord said: ‘you must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.’ The neighbour isn’t your
next door but a person who may be affected by your actions. During the consumer
transaction, that is to say, manufacturer owes a duty to the consumer to take that
reasonable care.

The type of products is unlimited in the law and the rules include multiplex goods.
For example, the case of Grant v Australian Knitting Mills Ltd 1936 about
underpants. A purchaser bought a pair of woollen long-johns but he suffered
dermatitis after wearing them because these long-johns unfortunately contained an
excess of sulphite chemicals. So the plaintiff sued the manufacturer in negligence.
(Mark Lunney)

Not only manufacturers, the rule also involves anyone who works for the items. In the
case of Herschtal v Stewart and Arden Ltd 1940, plaintiff purchased a second car
from Stewart who is a garage owner. Afterward, he was injured because of the fitted
wheels on the car in a careless manner. (Julius Stone) The car-seller had the duty of
care although he wasn’t the car’s manufacturer.

In some cases there maybe more than one cause of damage, this has proved a difficult
area for the courts. So it is not only one defendant sometimes. Where one or more
persons is directly or indirectly responsible for suffering injuries, the court may at any
time name one or more people as Potential Defendant(s)
(http://app.subcourts.gov.sg/criminal/faqs_print.aspx?pageid=3271, 26 Nov 2009)
The concept of potential defendant applies in case of Stennet v Hancock and Peters
1939. A pedestrian was hit by a lorry’s wheel. And this lorry was repaired by one
garage before the accident within a shortly time. (David and John) Though the
defendant was the driver, the repairer man was the ‘potential defendant’ because his
negligence caused the wheel had come off the passing lorry.

2, Breach of a Duty of Care

Once a claimant has shown that the defendant owed them a duty of care, it’s necessary
for them to prove that the defendant was in breach of that duty. (John) The courts
judge it by a cost benefit analysis because it’s hard to improve. The case Walton v
British Leyland Ltd 1978 will illustrate it. The claimants were injured by the defective
wheels in 1978. But the manufacturer knew their products have defects in 1973. They
issued a product bulletin instead of recalling all the Allegros. This behavior had taken
risks to consumers and the manufacturer breached their duty of care for safety.
The most difficult task that a claimant faces in a negligence action is likely to be
proving the defendant was negligent. The car-manufacturing is a complex processes
that customer difficult to know where it went wrong. Unless the claimants plead res
ipsa loquitur , the burden of proof should be more effective.

3, Damage Resulted from the Breach

The last step is consumers should have the evidence to prove they suffered damages
from the manufacturers’ breach of duty. In the case Evans v Triplex Safety Glass Co
Ltd 1936, plaintiff was injured by the shattered windshield of his car. But he hadn’t
evidence to demonstrate the accident caused by glass manufacturer. Finally the action
failed.

The negligence must be prevoyance within a reasonable scope. If the damage more
than expected, the claimant will fail.

3, The Consumer Protection Act 1987

Even the consumers prove all steps about negligence; the manufacturers also are able
to reduce their responsibility by the rule ‘Contributory Negligence’ which can be
found in Law Reform Act 1945.And the common law on defective products was
subjected to a number of criticisms. The claimant may have great difficulty in proving
causation as in Evans v Triplex Glass. It’s usually difficult to establish a negligence
action against a supplier of goods, although a contract action may often be available.
Then European Economic Community produced a Directive on product liability in
1985 and the member states should comply with the directive within three years.
(Peter M. Walker) In 1987 the Consumer Protection Act was passed with the intention
of bringing English law into line with the provisions of the Directive. The part 1 of
the Act covers the liability for defective products and that means it’s no longer
necessary to prove negligence and the manufacturer should insure the product against
its potential for causing harm. Under the CPA to bring an action the claimants must
prove they suffered injured, the goods have deficiency and the damage was caused by
the faulty product.

1, Damage
Damage of plaintiffs usually concludes three types: death, personal injuries and any
loss of property under the Sc5 of CPA.
There are certain limitations on property damage: there’ll be no award if the amount is
less than 275 pound. And the property means private use not business. The last one is
the claim may not include damages for damage to the defective product itself.

2, Was the Product Defective?

Section 3(1) provides: ‘there’s a defect in a product if the safety of the product is not
such as persons generally are entitled to expect.’(Stephen) The defective goods means
unsafe under 1987Act. To provide the product in safety should include:
a, The manner and purposes for which the product has been marketed. The products
should involve reasonable introduction and warning.
b, what might reasonably be expected to be done with or in relation to the products.
c, the time of the goods were supplied from producers to another.
A toddler was injured by a child-resistant closure cap in the case Tesco Stores v
Pollard 2006. But the court decided the product is safety because the cap is harder to
open than normal one actually. So the good was safety as persons are generally
entitled to expect.
3, The Damage was caused by the Defective Product
The claimant must prove the product was defective and the damage was caused within
the meaning of the Act. Consumer does not have to prove fault under the Act, but
causation still needs to be established. (Stephen) Where the damage results partly or
wholly from the defective product, this will be sufficient to make the producer liable.

Common law provided that anyone who was partly responsible for the harm done to
them could not recover in tort. It is injustice in some cases. The Law Reform
(Contributory Negligence) Act 1945 now provides that in some cases the defense of
contributory negligence may apply.

In case Baker v Willoughby(1969), a pedestrian had been knocked down by a

defendant’s car, but he had a clear view at least 200 yards of the road and taken no
evasive action. The court decided plaintiff was 50% contributory negligent.

There are also a series of defenses which are contained in s4. It’s a defense:
1, if the product complies with EC obligation;
2, if defect arising after the date of supplying;
3, if the product was not supplied in the course of a business or for profit.
4, if defendant can show the product has no problem at the relevant time.
5, within scientific and technological development. It is a defense under S4 for the
defendant to show that ‘the state of scientific and technological development at the
time the product was put into circulation was not such that a producer of the same
description as the product in question might be expected to have discovered the defect
if it had existed in his products while they were under his control.’ And the most
controversial is the development risk defense because member states hold that it’ll
reduces the effectiveness of the strict liable.
5, if it’s the contributory negligence. It will be open to the court to apportion the
plaintiff’s damages having regard to his responsibility for the harm he has suffered.
4, Conclusion
The Consumer Protection Act 1987 creates strict liability for personal injury caused
by defective products throughout the United Kingdom which means that it is not
necessary to prove negligence in order to claim compensation. Legal action can be
taken against the manufacturer, self branders and importers from countries outside the
EC. It is important to say that The Consumer Protection Act 1987 re-enforces
previous law and is just another remedy for justice in addition to actions for
negligence under the existing common law.
References
1, John Cooke (2003), Law of Tort, sixth edition, Person Education Limited.

2, Catherine Elliott and Frances Quinn (1999), Tort Law, second edition, Person
Education Limited.

3, Mark Lunney, Causation, Science and Sir Owen Dixon, Australian Journal of
Legal History 2004 Vo19.

4, Julius Stone (2001), Legal System and Lawyers’ Reasonings, Great Britain by
Stevens & Sons Limited.

5, David Oughton and John Lowry (1997), Textbook on Consumer Law, first edition,
Blackstone Press Limited.

6, Peter M. Walker (2001), Consumer law, fourth edition, Great Britain by Cavendish
Publishing Limited.

7, Stephen Weatherill (2005), EU consumer law, Edward Elgar Publishing Limited

8, 27/11/2009, http://en.wikipedia.org/wiki/Negligence

9,26/11/2009, http://app.subcourts.gov.sg/criminal/faqs_print.aspx?pageid=3271