Chapter 23: Product Liability - Thomson Reuters

Negligence 146In this connection, no categorical distinction can be drawn between latentand patent dangers. The user, especially an employee at work, may have nopractical alternative to encountering a known risk, for example in adjusting anunguarded machine while it is in operation. In that case, the manufacturer canbe said to have induced him or her to incur the risk and cannot avoidresponsibility by pleading that the operator assumed it with open eyes. 92A manufacturer or other supplier of goods bears responsibility only fordangers they pose in the contemplated use. If rendered dangerous only becausehandled in an improper or otherwise unforeseeable manner, they are simply not“defective” in any relevant sense. For example, a ladder does not have to becapable of supporting the weight of two men using it as a horizontal platformbetween uprights. 93 Nor need covers or guards on a machine be designed so asto be irremovable, 94 or a beer bottle be designed so as not to break whenthrown against a telephone pole, 95 or cologne be designed so as not to ignite ifheld over a candle flame. 96 But the usual stress in this context on “contemplated”or “intended” use is only a synonym for, and not meant to abridge, responsibilityfor dangers arising from any “reasonably foreseeable use”. A misuse from themanufacturer’s point of view may be a possible use or mode of operation thatshould have been foreseen and guarded against. 97 For example, themanufacturer of a mask caricaturing a politician may have to foresee a violentreaction against the wearer of the mask by a drunken or politically volatileperson. 98 Or if the environment in which the product will probably be usedposes a substantial risk of misuse, such as infants tampering with poisonousfurniture polish, reasonable care may well call for a warning label or otherspecial precaution. 99Inherently dangerous goods[23.80] The category of things “dangerous in themselves” or, as they aresometimes called, “inherently dangerous” goods long used to hold a specialplace in our law of negligence. The danger is said to be inherent when it derivesfrom the nature of the thing itself, as opposed to hazards associated with adefectively made product that is otherwise harmless – the difference, in anutshell, between poison, which is fraught with constant and invariable peril,and ginger beer which is ordinarily innocuous in the absence of someextraneous, hazard-creating factor. 100DRAFT92 Suosaari v Steinhardt [1989] 2 Qd R 477 (FC).93 CampbellvO’Donnell [1967] IR 226; alsoPoolevCrittalMetalWindows [1964] NZLR 522(CA). But see Hill v Crowe [1978] 1 All ER 812 (stood on box).94 Dallaire v P-E Martel Inc [1989] 2 SCR 419.95 Venezia v Miller Brewing Co, 626 F 2d 188 (1st Cir 1980).96 Moran v Faberge Inc, 332 A 2d 11 (CA Md 1975).97 Suosaari v Steinhardt Ltd [1989] 2 Qd R 477 at 488 per Cooper J; Rivett Arboricultural &Waste Equipment Hire Pty Ltd v Evans [2007] SASC 108 at [178] per Gray J.98 Price v Blaine KernArtista Inc, 893 P 2d (Nev 1995) (plaintiff entertainer sued manufacturerof caricature mask of George Bush after mask caused injury when he was pushed from behindby a spectator).99 Spruill v Boyle-Midway Inc, 308 F 2d 79 (4th Cir 1962).100 Examples of items within the category are loaded guns (Burfitt v Kille [1939] 2 KB 743),detonators (McCarthy v Wellington City [1966] NZLR 481), sulphuric acid (AdelaideChemical Co v Carlyle (1940) 64 CLR 514), mustard gas (Swinton v China MSN (1951) 83CLR 553), and an explosive fluid (Anglo-Celtic S Co v Elliott (1926) 42 TLR 297; Ayoub vBeaupre [1964] SCR 448); outside it are bows and arrows (Ricketts v Erith BC [1943] 2 Allsession: 5 October 28, 2010 page no: 11 folio no: 146@syd-tlrapp-p19/syd-tlrapp-p191/CLS_law/GRP_flemings/JOB_update10/DIV_19PROOF COPY