Chapter 23: Product Liability - Thomson Reuters

Warranties and Statutory Guarantees 162notwithstanding their ancestral link with deceit, withstood the corrodinginfluence of the fault doctrine, 242 and survived into modern law as absoluteguarantees even against latent and undiscoverable defects 243 or againstcontributory negligence, 244 although this last feature has since been reversed bylegislation in Australia permitting reduction of damages on account ofcontributory negligence in contract claims. 245The “logic” of this development, however, was not (until very recently)pursued to the point of jettisoning the privity requirement which continued todeny the benefit of warranties to all but the immediate purchaser. Thateventually had to be done by legislation. Warranties did not run with the goods,nor was there any “vertical” privity between the manufacturer and the ultimateretail purchaser, let alone with users and consumers outside the chain ofcommercial distribution or, better still, a mere “bystander”. And onlyexceptionally could the purchaser recover for an injury suffered by a third party,as in the case of an injury 246 or death 247 to the purchaser’s spouse or child(action for loss of services) 248 or when the purchaser bought as agent 249 orexpressly for the benefit 250 of another.Less constrictive a corollary of the privity requirement was that it compelledthe consumer to look to the retailer rather than the manufacturer for recovery.This seemingly capricious allocation of responsibility was in practice redressedby means of successive indemnities which ordinarily (that is in the absence of amissing link in the chain of distribution, 251 of exemption clauses, jurisdictionalobstacles, or time bars) allowed the loss to be shifted to its ultimately241 Wren v Holt [1903] 1 KB 610 (arsenic in beer); Preist v Last [1903] 2 KB 148 (burstinghotwater bottle); David Jones v Willis (1934) 52 CLR 110 (shoe); Grant v AustralianKnitting Mills [1936] AC 85; 54 CLR 49 (dermatitis from underpants); Andrews vHopkinson [1957] 1 QB 229 (car).242 Some (non-sales) warranties were reduced to mere warranties (or duties) of due care, forexample, carriers of passengers: Readhead v Midland Rly (1869) LR 4 QB 379.243 Hill vAshington Piggeries [1972] AC 441 at 498.244 Plaintiff’s misconduct might, however, be such as to put the injury outside reasonablecontemplation and thus too remote, for example, by use with actual knowledge of the defect:see Lambert v Lewis [1982] AC 225.245 Civil Law (Wrongs) Act 2002 (ACT), s 101; Law Reform (Miscellaneous Provisions) Act1965 (NSW), s 8; Law Reform (Miscellaneous Provisions) Act (NT), s 15(1); Law ReformAct1995 (Qld), s 5;LawReform(ContributoryNegligenceandApportionmentofLiability)Act 2001 (SA), s 3; WrongsAct 1954 (Tas), s 2; WrongsAct 1958 (Vic), s 25; Law Reform(Contributory Negligence and Tortfeasors’ Contribution)Act 1947 (WA), s 3A.DRAFT246 Preist v Last [1903] 2 KB 148 (CA).247 Jackson v Watson [1909] 2 KB 193 (husband’s claim includes damages for wife’s death). CfWoolworths Ltd v Crotty (1942) 66 CLR 603 (son’s death confers fatal accident claim onmother).248 SquarevModelFarmDairies [1939] 2 KB 365. Victoria and the Northern Territory havestillnot either abolished the action for loss of consortium, as the Australian Capital Territory,New South Wales, Tasmania and Western Australia have (Civil Law (Wrongs) Act 2002(ACT), s 218; Law Reform (Marital Consortium) Act 1984 (NSW); Common Law(Miscellaneous Actions) Act 1986 (Tas), s 3; Law Reform (Miscellaneous Provisions) Act1941 (WA)), or extended it to both husband and wife, as Queensland and South Australiahave: Law ReformAct 1995 (Qld), s 13; WrongsAct 1936 (SA), s 33.249 For example, Lockett v Charles [1938] 4 All ER 170.250 Cf Jackson v Horizon Holidays [1975] 1 WLR 1468 (CA) where a father recovered for theinconvenience, disappointment etc of his wife and children over a spoiled holiday.251 As in Lambert v Lewis [1982] AC 225 at 259-267 (claim by retailer v manufacturer,wholesaler not identified).session: 5 October 28, 2010 page no: 27 folio no: 162@syd-tlrapp-p19/syd-tlrapp-p191/CLS_law/GRP_flemings/JOB_update10/DIV_19PROOF COPY