Vacation Reading – Product Liability

‘Product liability’ is liability imposed on the producer or other supplier of a product in

respect of any personal injury or property damage attributable to a defect in the product. This
category of liability is a hybrid made up of common law negligence, statutory tort liability
and contract. On a given set of facts, it may be that one, two, or even all three of these distinct
causes of action will be available. The vacation reading addresses the first two of these causes
of action.

Chapter 11 of Winfield & Jolowicz or

Chapter 11 of McBride & Bagshaw
and
Nolan, Product Liability in Oliphant (ed), The Law of Tort (3rd ed, 2015) 1022-1051

A. Liability at common law

*Donoghue v Stevenson [1932] AC 562

Grant v Australian Knitting Mills [1936] AC 85
Muirhead v Industrial Tank Specialities [1986] QB 507
Hamble Fisheries v Gardner [1999] 2 Lloyds Rep 1
Howmet Ltd v Economy Devices Ltd [2016] EWCA Civ 847, [75]-[101] (Jackson LJ), [109-
113] (Sir Robert Akenhead) and [115-129] (Arden LJ)

B. Statutory liability

*EC Directive on Liability for Defective Products (85/374/EEC) (in Lunney, Nolan and
Oliphant, Tort Law: Text and Materials (6th edn, OUP 2017) 599)
*Consumer Protection Act 1987, Part I and ss 45, 46
Escola v Coca-Cola Bottling Co of Fresno 150 P 2d 436 (Cal 1944) (in Lunney, Nolan and
Oliphant, Tort Law: Text and Materials (6th edn, OUP 2017) 597)
Case C-300/95 Commission v United Kingdom [1997] ECR I-2649 (Hodges (1998) 61 MLR
560)

Abouzaid v Mothercare (UK) Ltd, 21 December 2000

*A v National Blood Authority [2001] 3 All ER 289 [2]-[22], [31]-[81] (Hodges (2001) 117
LQR 528)
Wilkes v Depuy [2016] EWHC 3096 (QB) (noted in Nolan, ‘Strict Product Liability for
Design Defects’ (2018) 134 LQR 176)
Case C-203/99 Veedfald v Århus Amtskommune [2002] ECR I-3569
Tesco Stores v Pollard [2006] EWCA Civ 393
O’Byrne v Sanofi Pasteur MSD Ltd C-127/04 [2006] 1 WLR 1606 (Hodges (2006) 122 LQR
393)
Boston Scientific Medizintechnik GmbH C-503/13 and C-504/13 (2015) 144 BMLR 255

C. Literature
W Prosser, ‘The Assault Upon the Citadel: Strict Liability to the Consumer’ (1960) 69 Yale
LJ 1099, 1114-1124
J Stapleton, ‘Products liability reform - real or illusory?’ (1986) 6 OJLS 392
A Tettenborn, ‘Components and product liability: damage to “other property”’ (2000)
LMCLQ 338
S Whittaker, ‘The EEC Directive on Product Liability’ (1985) 5 Yearbook of European Law
233

Problem question to consider

Alitoys manufactures a new toy called 'magnobeads', which are small, spherical, magnetic
beads, painted in bright colours. Alitoys purchases the bright-coloured paint that it uses on
the 'magnobeads' from Bikepaintz, a company that specialises in producing paints for use on
motorcycles. Alitoys sells the 'magnobeads' in sealed tins, each of which contains 100 beads
and a leaflet explaining that they should not be stored near electronic devices. Denton donates
5 tins of 'magnobeads', which he had previously used in an art project, to Crowtown Hospital
for children to play with while waiting for hospital appointments.

While waiting for an appointment Gwendoline, a four year old child, swallows several orange
'magnobeads'. Gwendoline's mother, Flavia, does not see the incident because she is filling in
an important form. Henrietta, a nurse at Crowtown Hospital, sees Gwendoline eat one bead
and telephones Igor,a doctor at Crowtown Hospital, for advice. Igor advises that such a small
bead will probably pass through Gwendoline's digestive system so there is no need for
immediate treatment. Unfortunately, the magnetic beads that Gwendoline has eaten stick
together in her digestive system and cause a severe blockage necessitating emergency
surgery. The surgery involves removing part of Gwendoline's digestive system and this could
have been avoided if she had been treated soon after Igor was contacted. It is discovered that
the shade of orange paint used on 'magnobeads' is identical in colour to the coating of a brand
of sweets which is sold only in Canada, and which Gwendoline ate whilst on holiday there.
Igor is surprised about the way the beads behaved in Gwendoline's digestive system, but on
performing a computer-aided search of the medical literature he finds two reports of similar
cases involving children eating magnets in journals aimed at practitioners of emergency
medicine: both reports were published after Denton purchased the 'magnobeads'.

Jina, a manager at Crowtown Hospital, puts the tins of 'magnobeads' in her bag, intending to
dispose of them. She later discovers that the magnetic field created by the beads has damaged
the hard disk of her new laptop computer, which was in her bag at the same time.

Advise Gwendoline and Jina.