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The “product liability” defined as the liability of manufacturer, during the chain of distribution, for personal injury, economic loss or property damage caused by sale or use of the product. Here the term ‘product’ denotes the finished goods as well as those items which may have some impact on the consumer expectations, product safety etc. In order to brought the action under strict liability the plaintiff must prove that injury occurred by 28. ibid 3, 24 29. R Vs Lemon (1979).
30. Alphacell Vs Woodward, (1972) Strict Liability16 a defective product whose defect existed at the time of injury and at the time which the product left the control of manufactures control.
Such product liability is the legal responsibility of the manufacturer to the buyers. It can be occurred at time of the transaction. Generally there are three defects in the product make defendants liable for their act. 1) Manufacturing: even though a few products turns in to the fault during the process of a manufacturing the plaintiff may held liable under rule of strict liability.
2) Marketing: In the case of lack of product warning or instructions, the plaintiff can bring an action against the defendant under such liability. 3) Design: A fault in design from previously mentioned might enable the plaintiff to claim for damages against the defendants. ( Miller, Goldberg 2004)(31) Usually the defective and unreasonably dangerous product denotes the desirability or usefulness of the product, the availability of safer goods in same need, likelihood of injury and its possible seriousness and danger. In such cases entitles the plaintiff to recover from the defendants for the injury caused by the product.
Here he need not prove any misconduct on the part of the defendant. The law framed such a provision to make the manufacturer vigilant about their production in safe manner. It is the duty of the manufacturer to produce the goods which will not create an unreasonable risk of injury to the consumer at any cost. Such claim can be made against the 31. Miller C. J, Goldberg R. S (September 30, 2004) Product liability 2 edition Publisher: Oxford University Press, USA; ISBN-13: 978-0198256786.
Strict Liability17 manufacturer, wholesaler, distributor, retailer and the maker of component parts. (Restatemet,1999)(32) In recent case of Escola v. Coca-Cola Bottling Co. ,(33) 24 Cal. 2d 453 (1944) (Traynor, J. , concurring) it was clearly stated that on the demand of public policy the responsibility should be fixed even though there is no element of negligence under the circumstances of hazardous and dangerous to life and health due to the defective products. In cost of the cases the injured would be such persons who are not aware and unprepared to meet the consequences.
It is to the public interest to discourage the marketing of defective products that are a menace to the public. It is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. In the case of manufacturer there can be general and constant protection and the manufacturer is always entitled to get the benefit of such protection. The law imposes certain warranties or guaranties on the sale of products.
Such warranties include that the goods are in proper condition for use and free of defects and that they are fit for a particular purpose. Strict liability under the contract When a good is transferred under a contract the liability of the parties is regulated by the term of contract. The terms or stipulations in a contract may be express or implied. For eg: in a contract of sale there is an implied condition that the goods shall be – 32. Section 402 A Restatement (Third) of Torts products liability, 1999 33.
Escola v. Coca-Cola Bottling Co. (1944)24 Cal. 2d 453 Strict Liability18 reasonably fit for the purpose for which they are required by the buyer. If the good contain harmful ingredients causing damage to the purchaser the seller is liable for that. Based on these principles, in Priest Vs Last(34) it was held that the defendant was liable for the burst out of a hot water bottle when it was being properly used. When a dangerous article is transferred under a contract of bailment the responsibility of the bailer will vary according to the fact whether the contract is one for hire or is a mere gratuitous bailment.
In a contract of bailment when the goods bailed for hire expose the bailee to extraordinary risk, the bailer is responsible for the loss caused by such goods, it is immaterial whether the bailer was aware of such fault in the goods bailed or not. In Hyman Vs Nye &Sons (35) the plaintiff hired a carriage and horses from the defendant for a particular journey. Due to defective bolt in the carriage it was upset and the plaintiff was injured. Since the carriage was not reasonably fit for the purpose for which it was hired, the defendant was held liable.
Sometimes the things have been considered to be either dangerous per se i.e dangerous in themselves or dangerous sue moto i. e dangerous according to the circumstances of a particular cases. In this regard in Dominion Natural Gas Co. Vs Collins & Perkins (36) it was explained that in the case of article dangerous in themselves, such as loaded firearms, poisons, explosiveness and other things ejusdem generic, there is peculiar duty to take precaution imposed upon those who send or install 34. Priest Vs Last (1903) 2 K. B 148 35. Hyman Vs Nye &Sons (1881) 6 Q.
B. D 685 36. Dominion Natural Gas Co. Vs Collins & Perkins (1909) A. C 640 at 646 Strict Liability19 such articles when it is necessarily the case that other parties will come within their proximity. The strict liability from a product liability usually arises when a product has been sold between the reasonable parties under a contractual relationship. So it is mandatory that a “privity of contract’ should be existed between the injured and the seller of the product to recover damage. Such right from the defective product can be come up at any stage of product’s chain of distribution.
For applying strict liability the sale must be made in the course of seller’s business’s if an injured bought some goods at a garage sale may not be claim any strict liability on the defendant. Criticism The application of strict liability invites a number of muddling up arguments. The main feature of the strict liability is to compel the manufacturers to internalize the cost of the product. When the manufacturer is assigned all the liabilities for the injuries caused, he is forced to take account all the harms caused and this may lead the manufacturer unable to profit from producing the product.
Moreover the strict liability arises between two parties who are not negligent . So, whatever the decision; one of the parties has to suffer the economic cost of the injury. Some critics sound that since the manufacturer is completely aware of the nature of the products than consumers, in order to fulfill the public policy of minimizing the injury, it is more reasonable to impose the burden of finding and correcting such dangers upon the manufacturer rather than taking away the defective products from the consumer. Strict Liability 20.
Another view is that the concept of strict liability causes some kind of misuse and leads to moral hazard problem on the part of potential buyers. Usually the consumers put through a heap of care in using their product which is in turn make them least-cost avoiders, this lead them a lower aggregate level of care than under a negligence standard. Due to strict imposition of law in various manners the manufacturer may not produce the socially optimal level of goods. Under such conditions the manufacturer cannot pass on the economic costs to the consumers as insurance as the most of the consumers are highly price sensitive.
This may harm the production of the products and complete removal from the market. consumers is highly price sensitive. This may harm the production of the products and complete removal from the market. Critics also points out that the high level application of eth strict liability may cause substantial higher transaction costs. Moreover this causes lowering the consumer surplus from these transactions. Conclusion The theoretical implications in the concept of strict liability are always convivial in nature. But it can be said that there is a utilitarian principle revolved under the imposition of strict liability.
Because the people determined to cling to the responsible persons for their actions even though there is no negligence on their part. Because there are some derivation of benefits like improved products, safety and accountability which is generally prevail over the burden on the defendant in a strict liability proceedings. The strict liability laws have advanced in recent days especially in the field of consumer safety and product development. Since the product liability is the legal responsibility of Strict Liability 21
manufacturers and sellers to buyers, users and bystanders for damages or injuries suffered, the strict liability of these section are firmly observed. The court has taken a wide view in this regard in Wagener & Cuttings v Pharmacare Ltd & Others, by stating that the question as to whether strict liability should be imposed is really a socio-economic question that will require substantial investigation and consideration and would have to be answered by the legislature.
References 1. Epstein, Richard A. Cases and Materials on Torts, 8th ed., Aspen Publishers: New York, pp. 651-57 2. Faegre & Benson, 2003 UK Trade and Investment, US product liability law, Nov. 2003 3. Jones, A . Micheal (2007), A text book on Tort, Ch. 2, 9th ed. , publ. by Oxford University Press 4. Kubasek, Nancy K. ; Browne, Neil M. ; Giampetro-Meyer, Barkacs, Linda, Andrea; Herron, Dan; Dynamic Business law (January 4, 2008) McGraw-Hill ISBN 0073524913 / 9780073524917 5. Mann, Richard A. Roberts, Barry S. (February 2008 ) Smith and Roberson’s Business Law ed no. 14 Publisher: Cengage Learning ISBN-13: 9780324655520 6.
Miller, C. J, Goldberg,R.S( September 30, 2004) Product liability, 2 edition Publisher: Oxford University Press, USA; ISBN-13: 978-0198256786 7. Salmond, Heuston (1996) , Law of Torts, , p443 publisher: Sweet & Maxwell; 21Rev Ed edition (24 Oct 1996) ISBN-13: 978-0421533509 8. Weir, Tony,( 2006),an introduction to Tort law, ch. 4 ,2nd edn. , publ. by Oxford University Press Table of cases 1. Alpha cell Vs Woodward,(1972) 2. Batch Eller Vs Tunbrige Wells Gas co. , 84 L. T 765 3. Berrier v. Simplicity Manufacturing, Inc. ,( 2008) ,3d Cir. Jan. 17, 2008, 4. Blyth Vs Birmingham waterworks Co (1856) 11Ex.
281 5. Ceiba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ‘n Ander, 2002 (2) SA 447 (SCA) 6. Donogue Vs Stevenson  AC 562 (HL) (Sc) 7. Dominion Natural Gas Co. Vs Collins & Perkins (1909) A. C 640 at 646 8. Eastern and South African Telegraph C . Ltd. Vs Cape Town Tramways Co. (1936) A. C 381 9. Escola v. Coca-Cola Bottling Co. , 24 Cal. 2d 453 (1944) 10. Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong  2 All ER 503 11. Green Vs Chelsea Waterworks Co. .(1864) 70 L. T 547 12. Hyman Vs Nye &Sons (1881) 6 Q. B. D 685 13. National Telephone Co.
Vs Baker (1893) 2 ch 186 14. North Western Utilities Vs London Guarantee, etc Co. Ltd (1936) A. C 108 15. Phillips v. Cricket Lighters, 841 A. 2d 1000 (Pa. 2003) 16. Priest Vs Last (1903) 2 K. B 148 17. Read Vs Lyons (1947) A. C 156, 161 18. R Vs Lemon (1979) 19. Richards Vs Lothian (1913) A. C 263 20. R Vs Storkwain(1986) 21. Rylands Vs Fletcher (1868) L. R 3 H. L 330 22. Smedleys Vs Breed, (1974) 23. Tennent Vs Earl of Glasgow (1864) 2M (H. L) 22, 26-27 24. West Vs Bristol Tramways Co. (1908) 2 K. B 14 25. Wagener & Cuttings v Pharma care Ltd & Others,  1 All SA 66 (C).
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