Product Liability and Psychiatric Illness

In this hypothetical case, there are two main aspects concerned, namely, product liability and psychiatric illness. In product liability aspect, issues arise between Beauty and Marnier, Beauty and Bridal Shopping Centre and the guests who got sick after drinking “Mango Cola” and Best Food. In psychiatric illness aspect, issue arise between Teena and Best Food.

Duty of Care

First, I’d like to analyse whether Marnier and Best Food owe duty of care to the victims in this case or not. According to three-fold test, foreseeability, proximity and F.J.R(fair, justice and reasonableness) are three elements required. Firstly, since “the defendant must foresee the plaintiff or the class of persons to which he belongs as being likely to be affected by his act or omission.”[ DK Srivastava & AD Tennekone The Law of Tort in Hong Kong (2nd Edition LexisNexis 2005) p169], Marnier and Best Food, both the manufacturers, certainly can foresee that the make up they produced will be sold and used by the customer, and were there any defects or dangers in their make ups, the customer will get injured. Secondly, the relationship between the customer and the manufacturer cannot be said to be remote since the manufacturer should have knowledge not about one exact customer, but the whole customer consumed their products, so it is foreseeable for the manufacturer of any injury suffered by any one of the whole customer. Thirdly, it is definitely fair, justice and reasonable for the manufacturer to have duty of care to the customer since the customer is the weaker group in the sales, and it’s also the social concern to protect the safety of the customer. What’s more, we can certainly get into the conclusion that Marnier and Best Food, in this case, is the neighbour of Beauty, the guests and Teena and owe duty of care to them according to the principle set up by Donoghue v Stevenson[ [1932] AC 562]. Besides, Marnier’s duty of care didn’t cease after “Perfect Eye” and “Plump Up” was put into the market and sold by shopping center.[ The Law of Product Liability (Butterworths 2000) p161] Accordingly, Marnier and Best Food both owe duty of care to the victims here.

Product Liability

When we turn to Beauty and Marnier first, Marnier is undoubtedly the manufacturer of the make ups, “Perfect Eye” and “Plump Up” should be the products, and although in the case, the make ups were bought by Beauty’s sister Candy, the user of them is Beauty, and it is Beauty who is in physical proximity to the product and is affected by the product[ DK Srivastava & AD Tennekone The Law of Tort in Hong Kong (2nd Edition LexisNexis 2005) p203], so Beauty should be the ultimate consumer. Also as stated above, Marnier owes duty of care to Beauty. So what’s important here is whether Marnier has breached the duty. There are two products manufactured by Marnier, “Perfect Eye” and “Plump Up”, one with warning of allergic reaction and one without such instruction. It should be expected by the consumer that any inherent danger of the product should be given a warning by the manufacturer,[ The Consumer Protection Act 1987 Part1 Article3(2)(a)] and whether there is a warning or not makes a huge difference. I think the two products here are quite similar to the situation in Grant v Australian Knitting Mills Ltd[ [1936] AC 85] and Kubach v Hollands[ [1937] 3 ALL ER 907]. In the former case, the manufacturer failed to put a warning to advice the consumer to wash the pants before wearing thus caused the plaintiff severe dermatitis while in the latter case, the manufacturer told the distributor that the chemical should be tested before use thus escaped liability for his instruction. Applying those two cases to this case, we can see that Marnier did put a warning on “Perfect Eye” to alert a possibility of allergic reaction and advised the consumer to test before using on eyelids. However Marnier failed to print such instruction on “Plump Up”. What’s more, according to objective test, a reasonable manufacturer can be presumed that he can foresee the consumers would apply the make ups on the face directly if they are not told to test before and this will be likely to cause allergic reaction on their face. So I think Marnier breached his duty on supplying “Plump Up” and did not breach his duty on “Perfect Eye”. After all, “the purpose of a warning is to fulfil the manufacturer’s duty of care.”[ The Law of Product Liability (Butterworths 2000) p159]

The next step then, should be the considering of whether Marnier’s breach of duty has caused the skin rash of Beauty. Since Beauty had applied “Rosy Glow” together with “Plump Up”, the reason of the skin rash is not sure whether lies in “Plump Up” only or in the effect occurred when combined the two products. The common principle to determine causation in a case is “But for” Test, namely, would plaintiff’s loss occur in any event, even without defendant’s negligence[ Paula Giliker Tort (third Edition SWEET & MAXWELL 2008) p168], however in this case, there’s no proof to show that but for the use of “Plump Up”, Beauty will not suffer from skin rash because the allergy may not happen if Beauty use “Plump Up” alone without “Rosy Glow”. Thus “But for” Test is not fit. However we can see there are two possibilities in this case, one is that the skin rash was caused by “Plump Up” alone, then apparently there exists a causation and Marnier should be liable. Another is that the skin rash was caused by combining to use “Plump Up” and “Rosy Glow”, which I found similar to Wilsher v Essex Area Health Authority[ [1988] 2 WLR 557]. In Wilsher case, there existed five different causes to the plaintiff’s suffering RLF. Also in this case, Beauty may fail to prove, on the balance of probabilities, that “Plump Up” caused the allergy reaction and Marnier may escape the liability.

Another thing I think should be mentioned is that Beauty didn’t read the warning on “Perfect Eye”, so Marnier would escape the liability for her contributory negligence.[ Tort Law And Practice In Hong Kong (SWEET & MAXWELL ASIA 2005) p336]

There is question on whether Bridal Shopping Center owes any duty of care to Beauty, that is to say, whether the seller owes any duty to the ultimate customers to warn them to read the warning or to test before use. This kind of duty, on my point of view, does not exist. Shopping center only owes duty of care to the customer when the actual manufacturer cannot be found or is too remote from seeking the damages or liability.

Another product included in this case is “Mango Cola” manufactured by Best Food, which is defective in that it contains significantly higher level of carbon level than industrial standards. This apparently infringed the statutory duty stated in Consumer Goods Safety Ordinance(CGSO)[ Consumer Goods Safety Ordinance(Cap 456) Section 4 Part 2 (1),(2)]. It’s common practise that sales goods should meet merchantable quality[ Sale Of Goods Ordinance s2(5)] thus Best Food undoubtedly breach its duty of care owed to the customers. In addition, the customers did not conduct any contributory negligence, also the causation exists since guests got sick and diarrhoea after drinking the cola. Above all, we can conclude that Best Food has the liability for manufacturing or supplying defective product, namely, “Mango Cola” in this case.

Psychiatric Illness

When we turn to Teena then, on the psychiatric illness aspect. First thing to do is to identify the medical recognized psychiatric illness. In this case, Teena developed a phobia for drinking liquids, thinking that she would get sick, which falls into the category of PTSD after the accident. The second thing to consider is Teena is primary victim or secondary. I think Teena can either be considered as primary victim or secondary victim on different basis. If Teena suffered a nervous shock for the fear of her own danger to get sick with diarrhoea, she should be considered as primary victim although she didn’t actually drink the cola, as principle raised in Page v Smith[ [1996] AC 155] that as long as the victim can reasonably foresee the physical injury is he sufficient to be primary victim. What’s more, Teena here, completely fits the description of primary victim by Stuart-Smith LJ in McFarlane v E.E.Caledonia Ltd[ [1994] 2 All ER 1] that the class of participant extended beyond the plaintiff who “is in the actual area of danger created by the event, but escapes physical injury by chance or good fortune”[ See M Lunney & K Oliphant Tort Law Text & Material (4th Edition Oxford University Press, 2010) p354] However on the ground of thinking Teena got nervous shock because she witnessed the whole accident and worried about the guests’ safety, she should be treated as secondary victim. However when determining liability between defendant and secondary victim, the court has established a control mechanism to prevent widening the scope.[ Theory raised in Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907] In this mechanism[ Stated by Lord Steyn in Frost or White v Chief Constable of South Yorkshire Police & Ors [1999] 2 AC 455

i) he had a close tie of love and affection with the person killed, injured or impilled

ii) he was close to the incident in time and space

iii) he directly perceived the incident rather than, for example, hearing about it from a third person], the most important thing to consider whether there exists a liability is the relationship to the primary victim. In this case, however, Teena would very likely to lose the case as a secondary victim in proving the relation of love and affection to the primary victims, the guests here. So in my opinion, it would be better to argue that Teena is the primary victim of the accident.

Best Food may argue that it’s unreasonable to foresee that a person would suffer phobia only because of seeing others getting sick after drinking cola therefore no causation in law exists. But as said that Teena had a heart condition previous. In that case, I think Teena can apply “Eggshell skull” principle and her condition is a little bit similar to Love v Port of London[ [1959] 2 Lloyd’s Rep 541] in which the plaintiff, who suffered pre-existing heart condition, developed a neurosis after injuried by defendant’s negligence. Applying the principle raised in that case that “the defendant must take the victim as they find him, that is to say, with his already vulnerable personality”, Teena, therefore, undoubtedly can apply this principle to claim for damages of nervous shock due to the negligence of Best Food, the mere excuse for the impossibility to foresee the pre-existing heart condition cannot affect its liability.

Conclusion

Referring to the above reasons and authorities, I held the conclusion as following: Marnier is not liable for the allergy caused by certain components of “Perfect Eye” of Beauty for her own contributory negligence, and Marnier is not liable for the allergy caused by “Plump Up” either as long as doctor cannot prove the real reason of the allergy reaction. Bridal Shopping Center is not liable to this event because the shopping mall doesn’t owe duty of care to Beauty. Best Food is undoubtedly liable to all the guests suffered diarrhoea for supplying defect product which doesn’t meet merchantable quality. And Best Food is also liable to Teena for causing her phobia.

DK Srivastava & AD Tennekone The Law of Tort in Hong Kong (2nd Edition LexisNexis 2005) p169

[1932] AC 562

The Law of Product Liability (Butterworths 2000) p161

DK Srivastava & AD Tennekone The Law of Tort in Hong Kong (2nd Edition LexisNexis 2005) p203

The Consumer Protection Act 1987 Part1 Article3(2)(a)

[1936] AC 85

[1937] 3 ALL ER 907

The Law of Product Liability (Butterworths 2000) p159

Paula Giliker Tort (third Edition SWEET & MAXWELL 2008) p168

[1988] 2 WLR 557

Tort Law And Practice In Hong Kong (SWEET & MAXWELL ASIA 2005) p336

Consumer Goods Safety Ordinance(Cap 456) Section 4 Part 2 (1),(2)

Sale Of Goods Ordinance s2(5)

[1996] AC 155

[1994] 2 All ER 1

See M Lunney & K Oliphant Tort Law Text & Material (4th Edition Oxford University Press, 2010) p354

Theory raised in Alcock v Chief Constable of the South Yorkshire Police [1991] 4 All ER 907

Stated by Lord Steyn in Frost or White v Chief Constable of South Yorkshire Police & Ors [1999] 2 AC 455

i) he had a close tie of love and affection with the person killed, injured or impilled

ii) he was close to the incident in time and space

iii) he directly perceived the incident rather than, for example, hearing about it from a third person

[1959] 2 Lloyd’s Rep 541