Chapter 23: Product Liability - Thomson Reuters

Negligence 148regarded as discharged if the custodian selects a method of storing which, so faras humanly possible, eliminates the danger of explosion and reduces to aminimum the possibility that persons unacquainted with its dangerous charactercould gain access to it. Yet how exacting the standard is in practice isdramatically illustrated by a New Zealand decision 110 which declined to excusea defendant for storing detonators in a metal box on a high shelf in a darkcorner of a disused house on an isolated farm, when a labourer who took shelterthere from the rain on his way to work cleaned out the detonator in ignorance ofits nature and was killed by an explosion.Nor is the duty in cases such as these owed only to persons who unwittinglypick up the explosive or perhaps those who are injured in the immediate vicinity.It has been held to be foreseeable, for example, that teenagers might break intoan insufficiently secured safe in an open quarry containing detonators and,unaware of the risk, give them to another child who inadvertently sets off anexplosion after having taken them home. 111Responsibility for taking precautions rests not only on the manufacturer ofthe highly dangerous product but on everyone alike who transfers it to anotheror has custody or control over it. 112 Here, at any rate, it is irrelevant that thedefendant is only a gratuitous bailor, donor 113 or mere distributor who has nothimself increased the hazard inherent in the object beyond creating anopportunity where it might cause harm to others, as when a shopkeeper sold adangerous toy pistol to a child of 12 who injured a companion with blankammunition. 114 The nature of a product such as a gun leads to a duty thatrequires the person in control of the gun to take care as to the persons allowed touse the gun. 115Manufacturers and other suppliers[23.90] The responsibility laid upon manufacturers by Donoghue v Stevensonhas been progressively extended to makers of component parts integrated into afinal product by someone else, 116 to repairers, 117 repackagers, 118 erectors, 119assemblers, 120 and modifiers. 121 Beyond that, reasonable care demands fromthose handling or distributing goods some measure of inspection to detectdefects in the creation of which they may not have had a hand at all. The makerDRAFT110 Marcroft v Inger [1936] NZLR 121. But a trespasser was disqualified in Clayton v Victoria[1968] VR 562 (sulphuric acid in school laboratory).111 McCarthy v Wellington City [1966] NZLR 481 (CA); Holian v United Grain (1980) 112DLR (3d) 611.112 See, for example, Rivett Arboricultural & Waste Equipment Hire Pty Ltd v Evans [2007]SASC 108 (FC) (duty owed by owner of wood-chipping machine as well as by manufacturer).113 See Ball v LCC [1949] 2 KB 159. In relation to food donors see n 147.114 Burfitt v Kille [1939] 2 KB 743.115 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241 per Brennan J.116 Evans v Triplex Glass [1936] 1 All ER 283 at 286 (windscreen).117 HaseldinevDaw [1941] 2 KB 343;JullvWilson [1968] NZLR 88;Godfrey’svRyles [1962]SASR 33. But the repairer may well have been justified in relying on an intermediateexamination.118 Glendale Chemical Products Pty Ltd vACCC (1998) 90 FCR 40 (FC).119 Brown v Cottrill (1934) 51 TLR 21.120 Stennett v Hancock [1939] 2 All ER 578; Howard v Furness Houlder [1936] 2 All ER 781;Malfroot v Noxal (1935) 51 TLR 551.121 Stillwell Trucks v McKay [2002] NSWCA 292.session: 5 October 28, 2010 page no: 13 folio no: 148@syd-tlrapp-p19/syd-tlrapp-p191/CLS_law/GRP_flemings/JOB_update10/DIV_19PROOF COPY