Chapter 23: Product Liability - Thomson Reuters

149Ch 23: Product Liabilityof a beverage, for instance, owes a duty to inspect the bottles it uses, 122 even ifthis need not be nearly as exacting as the tests for flaws required from the bottlemanufacturer, since to demand more would be needlessly wasteful and oftenimpracticable. Similarly, people who loan out equipment 123 must carry on areasonable system of maintenance and inspection to minimise the risk of injuryto likely users, such as dock workers operating a rented truck 124 or using slingsfurnished by stevedores for the purpose of their common task of unloading aship. 125Nor are manufacturers of composite products like motor cars absolved fromall responsibility for component parts or other fabrication of subcontractors.Their duty of reasonable care is not necessarily exhausted in the selection ofspecialists who are competent. Car manufacturers, for example, were heldremiss in not addressing their engineering skill to the design of a carburettorobtained from a large-scale supplier. 126 More commonly, however, a lessexacting standard has been posed, so that if nothing looked amiss to the nakedeye, no more probing tests with special equipment were required. 127 So far atleast there has been no disposition 128 to adopt the growing American doctrineof making manufacturers of completed products responsible for negligence byanyone in the production process, outsiders no less than their own employees, intoken of the consumer reliance on the brand name of the final productsedulously fostered by advertising. 129 Nor is an electricity supplier connectingup a new circuit under any duty to check that the particular unit to be hookedup is safe and properly installed. Earthing a washing machine, for instance, isthe job of the electrical contractor who installed it and on whose competence theelectricity supplier may rely, at least in the absence of suspiciouscircumstances. 130 To ask more from the supplier would increase costs with nocommensurate benefit of added safety.Distributors[23.100] There must be something more than a mere relationship of seller andbuyer for a duty in negligence to be owed by the former to the latter. 131However, retail dealers and other distributors are not altogether exempt fromresponsibility for defective products manufactured by others. Besides beingDRAFT122 HartvDominionStores (1968) 67 DLR (2d) 675;AdelaideChemicalCovCarlyle (1940) 64CLR 514 (unsuitable container).123 White v John Warwick [1953] 1 WLR 1285; Godfrey’s v Ryles [1962] SASR 33.124 Sullivan v Gallagher [1959] SC 243.125 Oliver v Saddler [1929] AC 584.126 WinwardvTVREngineering [1986] BTLC 366 (CA) imposed on a small firm a duty even toconduct its own engineering review of a Ford design.127 Taylor v Rover Co [1966] 1 WLR 1491 (hardening chisels).128 Peake v Steriline Mfg (1988) ATR 80-154 (regretfully). Contrary (semble) Farro v Nutone(1990) 68 DLR (4th) 268 (Ont CA).129 For example, Boeing Airplane Co v Brown 291 F 2d 310 (9th Cir 1961); Rest 2nd, s 400(1965). Indeed, “channelling” liability from the component manufacturer to the finalassembler makes more insurance sense. SeeGoldbergvKollsmanInstruments, 191 NE 2d 81(NY 1963) (defective altimeter).130 Sellars v Best [1954] 1 WLR 913.131 Laundess v Laundess (1994) Aust Torts Reps 81-316 at 61,874 per Mahoney JA (withwhom Meagher JA and Powell JA agreed); McPherson’s Ltd v Eaton [2005] NSWCA 435 at[81] per Ipp JA.session: 5 October 28, 2010 page no: 14 folio no: 149@syd-tlrapp-p19/syd-tlrapp-p191/CLS_law/GRP_flemings/JOB_update10/DIV_19PROOF COPY