The possible liability

Abdul buys a sit-on model 10 lawnmower, manufactured by Garden Engines, from Mowers R Us. Garden Engines sends letters to all retailers advising them to test all mowers for safety prior to sale, but Mowers R Us failed to do this in the case of the mower sold to Abdul. It has come to Garden Engines attention that an electrical fault with the model 10 mower is causing the mowers to seize up while in motion. They send a circular to all retailers advising that a modification should be made during servicing to the electrical system to cure the fault.

Prior to its fault service, Abduls mower seizes up throwing him off, causing him injury, ruining a bed of prize roses valued at i?? 200, and causing damage to the mower estimated at i?? 500. Advise Abdul of the possible liability of Garden Engines and Mower R Us. There are both common law and statutory remedies for damage caused by a defective product. In Donoghue v Stevenson [1932], the plaintiff drank a bottle of ginger beer, which turned out to contain the remnants of a decomposed snail, and as a result became ill.

The House of Lords ruled that the manufacturer did owe a duty of care to the consumer. The manufactures duty includes all products capable of causing damage. Therefore for example in Herschtal v Stewart and Arden Ltd [1940] it was shown for example that this included motor cars. However Lord Atkins in his judgement in Donoghue v Stevenson, did state that the duty extends to 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.

' This was illustrated in Grant v Australian knitting Mills Ltd [1936], where the plaintiff contracted dermatitis from the presence of too much sulphite found in a pair of new underpants, which he had not washed prior to wearing them. The Privy Council found that this was considered a defective product as it was not to be expected that they should have to be washed prior to wearing them for the first time. The manufacturer is only liable if he has no reason to assume that an intermediate examination or inspection will occur.

If he has however given a warning for example to test a product before it is used, this may be considered sufficient for him not to be found liable. In Kubach v Hollands [1937] a chemical manufacturer was found not to be liable for the injury caused to a school girl after the chemical exploded as the manufacturer had warned the retailer to test all chemicals before use, the retailer failed to do this or to warn the teacher that it should be tested. Similarly in Holmes v Ashford [1950] the manufacturers of a hair dye were found not liable when a hairdresser ignored an instruction to test the product before using it on a client.

In both these cases the warning did not reach the eventual consumer but it was nonetheless deemed that there was reasonable thought as to the need for intermediate examination. It therefore seems that there was sufficient initial warning by 'Garden Engines'; it did have reason to believe that an intermediate examination would take place, as it had sent a letter to all retailers to test mowers for safety prior to sale. As for Mowers R Us, they failed to follow the manufacturers advice telling them to test all mowers for safety prior to sale.

A retailer can be found liable for failing to inspect the goods that he sold if this was considered reasonable for him to do so. In Andrews v Hopkinson [1957] a dealer of second hand cars supplied a plaintiff with an 18 year old car which had defective steering, he was found liable as this could have easily been detected by a competent mechanic, and given the dangers involved it was reasonable to expect that he should have checked it, or warned the purchaser that it had not been checked. Similarly in Fisher v Harrods Ltd [1966] the store was found liable for selling defective cleaning fluid to the plaintiff's husband.

The defect would have been discovered by a reasonable examination which the defendant did not carry out, and nor did it warn the plaintiff that an inspection had not been carried out. It seems that Mowers R Us could therefore be found guilty for failing to carry out the required inspection on the mower prior to its sale, though as Mowers R Us were not aware of this defect at the time of sale they may be able to argue that it was not reasonable for them to have to inspect for this specific problem.

It would probably depend on how easy it was for a supplier to detect such a problem during a standard safety test, if this type of problem could have been found during a safety test then I believe they would be found guilty, if however this could not have been detected in such a test then failure to carry out the test was not negligent in regards to the eventual damage caused. It is important to note that there was no intervening act by Abdul, which broke the chain of causation, it can also not be claimed that Abdul was aware of the danger and he chose to ignore it.

When a defect is found in a product when a product is already in circulation manufacturers must take reasonable steps to warn users of the danger or to recall the defective product. In Walton v British Leyland [1978]1 it was stated that 'a manufacturer's duty of care does not end when the goods are sold. A manufacturer who realises that omitting to warn past customers about something which might result in injury to them must take reasonable steps to attempt to warn them, however lacking in negligence he may have been at the time the goods were sold'.

'Garden Engines' did become aware that the mowers were likely to seize up due to an electrical fault. It therefore meant that they should have taken reasonable steps to warn users of the danger or recall the defective product. It is arguable whether the steps that they took were sufficient. Is the fact that they warned all retailers that a modification should be made to all mowers during servicing enough? I believe that this probably is not sufficient, as the time from one service to the next could be considerable, definitely enough time for the possibility of the mower to seize up to take place.

'Garden Engines' should have rather recalled all the mowers or informed all retailers that they should inform all customers to immediately bring their mower in for servicing. It would seem therefore that 'Garden Engines' could be found guilty for negligence, the risk was foreseeable and they failed to take proper precautions against it. With regard to what damages Abdul could therefore claim, liability for defective products applies to personal injuries and physical damage to property other than the product itself.

Pure economic loss is not recoverable. In Muirhead v Industrial Tank Specialities Ltd [1985], a manufacturer supplied faulty pipes for pumping seawater through a lobster tank; the pumps were the wrong voltage and therefore cut out causing the lobsters to die. The plaintiff was able to recover the value of the lobsters (physical damage) and the loss of profit on those lobsters, however he was not able to recover neither the value of the pumps nor the loss of profits on the whole operation, as this was pure economic loss.

This decision was reiterated by the House of Lords in D&F Estates v Church Commissioners, and in Murphy v Brentwood District Council [1990] that damage to the product itself and any form of pure economic loss is not recoverable in tort. [Damage to a product is recoverable in contract. ] It seems clear therefore that Abdul would be able to claim damages for his personal injuries that he suffered and for the physical damage caused to his rose worth i?? 200, but he would not be able to claim the i?? 500 in damage to the mower under an action in tort.

If we now turn to the statute, the Consumer Protection Act 1987 section 2 (1) states that 'where any damage is caused wholly or partly by a defect in a product, every person to whom subsection 2 below applies shall be liable for the damage'. S 2 (2) states that it applies to the producer of the product, but not the supplier unless he fails within a reasonable time to identify the producer who supplied the product to him, to the person who suffered the damage. Section 3 (1) states that a product has a defect 'if the safety of the product is not such as persons generally are entitled to expect'.