Foreign objects or I’ve got a bone to pick with you … (Part 2)

Photo by Owen Beard on Unsplash

One of the first articles which I wrote for this Blog concerned the liability of producers and suppliers for foreign or dangerous objects.

The article had been inspired by an incident at a Primark store where a member of the public had sensationally discovered part of a human finger bone in a pair of socks.

This gave me a very convenient opening to review the area of product liability. The leading case, of course, is Donoghue v Stevenson [1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317 or the ‘snail in the ginger beer bottle’. This decision of the House of Lords established the foundations of the modern law of negligence – in Scotland and in England.

Mrs Donoghue did not have a contract of sale with Mr Minchella, the seller of the lemonade bottle and, therefore, she could not bring a claim for damages in terms of the (then) Sale of Goods Act 1893. Even today, Mrs Donoghue would not have a remedy against the seller under the Consumer Rights Act 2015.

So, who could Mrs Donoghue bring a claim against? The manufacturer would seem to be the logical response to this question, but this is the application of hindsight in late 2019. Several years before the Donoghue case, a claim against a manufacturer for harm caused by a dangerous product had been comprehensively rejected by the Inner House of the Court of Session (see Mullen v A G Barr & Co Ltd [1929] SC 461). The House of Lords was, therefore, breaking new legal ground when it found in Mrs Donoghue’s favour against Stevenson, the manufacturer of the lemonade bottle. Stevenson owed a duty of care to the ultimate consumer of the product – irrespective of whether this individual had a contract of sale with the company.

Since Donoghue v Stevenson, this area of the law has developed considerably with the UK Parliament passing the Consumer Protection Act 1987. Part 1 of this Act established a regime of strict liability in relation to dangerous products. Previously, the claimant would be required to prove fault on the part of the manufacturer.

Theoretically, it’s now much easier for a consumer to win a claim against a manufacturer (or someone in the chain of supply) if s/he have suffered injury or damage to property as a result of exposure to dangerous products.

Returning to Primark, the company and the Police have conducted an investigation into the incident and they have not been able to establish responsibility, anywhere in the chain of supply, for the bone’s inclusion in the pair of socks.

It looks as if the affair will go down as one of life’s unsolved mysteries.

A link to the latest developments in the Primark case can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.281219/data/9261571/index.html

Related Blog article:

https://seancrossansscotslaw.com/2019/01/25/foreign-objects-or-ive-got-a-bone-to-pick-with-you/

Copyright – Seán J Crossan, 30 December 2019

No smoke without fire …

Photo by Patrick Hendry on Unsplash

It would seem that Whirlpool, the domestic appliance manufacturer of Creda, Hotpoint, Indesit and Proline tumble dryers does not have its sorrows to seek as product defects (which could endanger the safety of the public) continue to plague the brand. The appliances have been nicknamed the ‘killer dryers’ because they may represent a fire risk.

Manufacturers of products have a duty of care to ensure that their products are free from defects which could cause damage to property or death or personal injury.

Related Blog article:

Help! The tumble dryer’s on fire!

https://seancrossansscotslaw.com/2019/06/14/help-the-tumble-dryers-on-fire/

Last week, the company admitted that nearly half a million of its appliances could have a serious manufacturing defect which could cause property damage and, more seriously, death or personal injury.

Whirlpool’s (civil) liability to victims is said to be strict in terms of a number of Acts of Parliament:

  • Sale of Goods Act 1979
  • Consumer Protection Act 1987
  • Consumer Rights Act 2015

There is also the issue of possible criminal liability for dangerous and defective products in terms of the Consumer Protection Act 1987.

Potentially, Whirlpool could be liable to a large group of people:

  • Business customers (retailers and traders) who purchased products from Whirlpool directly in terms of the Sale of Goods Act 1979; and
  • The ultimate consumer of the products i.e. any one who does not have a contract of sale with the retailer or manufacturer, but who may suffer property damage, injury or death as a result of exposure to the dangerous product (see Donoghue v Stevenson [1932] UKHL 100) in terms of the Consumer Protection Act 1987.

Those consumers who purchased dangerous item(s) directly from a retailer will, of course, have a contract of sale in terms of the Consumer Rights Act 2015 and they can take legal action against the retailer. The retailer can then pursue a claim against the manufacturer or supplier from whom they obtained the goods.

An excellent link to an article about the problems facing Whirlpool appliances can be found below by clicking on the link to the Which? website:

https://www.which.co.uk/news/2019/12/whirlpool-announces-recall-of-up-to-519000-indesit-and-hotpoint-fire-risk-washing-machines-in-the-uk/?utm_source=whichcouk&utm_medium=email&utm_campaign=whirlpoolrecall171219

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/half-a-million-whirlpool-washing-machines-recalled-over-fire-risk-11889023

Copyright Seán J Crossan, 23 December 2019