CONSUMER PROTECTION – THE LIABILITIES OF MANUFACTURERS

BY: PAUL OMOBHUDE, ESQ.

Introduction

As we all know consumers are the most vital part of every business, because without consumers all businesses will collapse and as such; we all owe our consumers a great deal of commitment. Consumers are usually not present during production hence, they are unable to make any input with regards to the diligence being expended during production. 

The consequence of this is that consumers are exposed to the possibilities of substandard products which can be harmful or life-threatening when such products are consumed. There is, therefore, an urgent need to protect every consumer by ensuring that manufacturers who are negligent in their duties are held liable to compensate the injured consumers by way of damages for injury caused from the consumption of defective products.

Consumer protection is simply the effective mechanism put in place to protect all consumers against misleading, fraudulent and harmful production practices including manufacturing, trading, advertising, distribution and selling of goods and services to the ultimate consumer

 

Keywords: Consumer, Manufacturer, Defective Products.

 

Who is a consumer?

A consumer is any person who utilizes the goods and services produced by a manufacturer. According to Black’s Law Dictionary, the word consumer refers to that person who purchases, uses and enjoys the products and services of a manufacturer.

Who is a manufacturer?

A manufacturer is a person or a company that produces goods for consumption or a person or company that makes finished products from raw materials.

What are Defective products?

There is no general definition for defective products because of the relativeness of the term “defect”. For example, a chemical though poisonous and harmful may not be a defective product if applied according to prescription. Thus, a defective product may take on different meanings depending on the context wherein it is applied.

For instance, in contract, a product though not harmful or injurious may be defective where it does not meet its specification with regard to its being fit for purpose, or not being of merchantable quality or does not meet with the implied condition for sale of usage of such a product. Whereas, a product though it meets specifications as required by contract may still be regarded as defective in tort, where such a product is capable of causing injury to a person or property.

Defect in tort concerns product safety, in Boardman v Guinness {Nig} Ltd. {1980} NCLR 109 at 261 the Court held that the Defendants’ duty was not to ensure that their products were perfect but merely to take reasonable care that no injury was done to consumers of their product. 

How a manufacturer’s Liability can be established

Every consumer who has suffered an injury of any form from the usage of a defective product can proceed to establish the manufacturer’s liability in one of these two ways:

1. By contract
2. Action in tort {Negligence}

 

Establishing a Manufacturer’s liability in contract

A manufacturer of a defective product can be liable to the consumer on the basis of a contract. A contract has been defined by Black’s Law Dictionary 9th edition as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.

For a consumer to proceed against a manufacturer or distributor or retailer of goods in contract, there must exist privity of contract between the parties, in other words, only the party to the contract can sue or be sued on it. The only exceptions to the doctrine of privity in the enforcement of a contract are the doctrine of an undisclosed principal, constructive trust and negotiable instruments.

Flowing from the above, a consumer is not entitled to compensation flowing from injuries he suffered as a result of the usage of a defective product from the manufacturer or distributor unless such a consumer can establish that there exists privity of contract between himself and the manufacturer or distributor of such a product.

For Example, Mr X approached a pharmacist, complaining that he was suffering a severe headache and the pharmacist prescribed and sold medication to him. Instead of using the medication alone, Mr X proceeds to give it to his wife, and the medicine does not work or causes injuries to her.  The manufacturer or pharmacist can not be held liable because there was no privity of contract with Mr X’s wife but only with Mr X.

In John Holt Ltd. V Leonard Ezeafulukwe {1990} 2 N.W.LR. {Pt. 133}. 520 CA; the Appellant in his statement of claim averred that he entered into a contract with John Holt Ltd to purchase 650 cartons of small size geisha and 160 cartons of large size geisha all valued at N12,790.00, however on getting to his main shop in Cameroon, he discovered that 577 cartons of the canned fish were rotten, consequently, he requested for a refund which was turned down by the Defendant, hence he filed the suit for special and general damages. The Defendant denied having any contract with the plaintiff on the ground that it only had a contract with “Mr Ezeafulukwe” or “Mich Ezeafulukwe” and not the plaintiff {appellant at the Supreme Court}. The Supreme Court in its judgment held that there was a discrepancy as to the identity of the plaintiff as the plaintiff {appellant at the Supreme Court} has failed to show that he is the same person as “Mr Ezeafulukwe” or “Mich Ezeafulukwe” hence there is no privity of contract between the Appellant and the Respondent.

In contrast, in Nigerian Bottling Co. Ltd v Ngonadi {1985} 5 S.C 313, The Respondent who trades on beer and soft drinks in her beer parlour bought a kerosene refrigerator from the Appellant. The fridge caught fire two days after it was delivered by the Appellant. The Appellant was notified of this fact and effected repairs on the visibly defective refrigerator. Some days later, the fridge while in use exploded and the Respondent suffered grave injuries. The Court held the Appellant liable to the Respondent even though they were not the manufacturer. The Court emphasized that there was privity of contract between the Appellant and Respondent and it was of no moment that the Appellants were only distributors of the product and not the manufacturers.   

The consumer seeking to establish the liability of the manufacturer of a defective product must in addition to establishing privity of contract, also establish one of the following:

1. That there is a breach of condition or warranty with regard to the contract between the parties {it must be noted that a consumer can repudiate the contract if the breach violates a condition in the contract.  Whereas where it is a breach of warranty, the consumer can only sue for damages and cannot repudiate the contract.}
2. That the goods did not meet the description where the sale of the goods was by description, {Section 14 of the Sale of Goods Act}
3. That the goods are not fit for purpose {Section 15a of the Sale of Goods Act}
4. That the goods are not of merchantable quality {Section 15b of the Sale of Goods Act}
5. The goods did not meet the implied condition in a sale by sample {Section 16 of the Sale of Goods Act.}

 

Establishing a Manufacturer’s liability in tort {Negligence}.

As already noted above, only a party to a contract can enforce same or receive compensation where he suffers an injury as a result of the consumption of a defective product purchased from the manufacturer, or distributor as the case may be. In the absence of privity of contract, a victim may resort to institute a suit in tort for compensation by establishing that the manufacturer or distributor was negligent in his duty of care hence the injury suffered by the victim.

Negligence

Negligence was defined in Odinaka and Anor. V Moghalu {1992} 4 NWLR {Pt. 233} 1S.C. at 15; as the omission or failure to do something which a reasonable man, under similar circumstances would do or the doing of something which a reasonable and prudent man would not do. In effect, negligence is the breach of the duty to take care which results in the damage suffered by the defendant. 

Therefore, to establish negligence, the Plaintiff must be able to show:

1. That the Defendant owes him a duty of care or that there exists a duty of care
2. That there is a breach of the duty of care owed to him by the Defendant
3. That he suffered consequential damages as a result of the fact that the Defendant breached the duty of care he owes him

1. That the Defendant owes him a duty of care or that there exists a duty of care

The first task a person claiming negligence must establish is that the defendant owes him a duty of care or the existence of a duty of care. Consequently, one cannot be said to be negligent if he does not owe the person so affected a duty of care or that a duty of care does not exist between the plaintiff or the Defendant. 

Duty of care connotes that one has a duty to take reasonable care when he does an act or omits to do an act in order not to cause injury to any person.

The doctrine of the duty of care was firmly established in the well celebrated English case of Donoghue v Stevenson {1932} A.C. 562. Before the decision of the House of Lords in Donoghue v Stevenson there were conflicting opinions as to whether a duty of care could exist between non-contractual parties.  

For example, in Winterbottom v Wright {1841} 10. M & W 109, The plaintiff was contracted by the Postmaster-General to drive a mail coach supplied by the Postmaster. The Defendant, Wright had also been contracted to maintain the coach in a safe state. The coach collapsed while the Plaintiff was driving it and was injured. In a suit for negligence, the Court refused to recognize a duty of care where there was no privity of contract.

However, by the landmark decision in Donoghue v Stevenson {supra}, an injured consumer {Plaintiff} could sue and receive redress on the fact that the manufacturer {Defendant} was negligent and ultimately breached the duty of care owed by him to the Plaintiff. 

The facts of the case are as follows: the Plaintiff, Donoghue, in the company of her friend went to a café where her friend bought ginger beer which was contained in an opaque bottle for Donoghue. Donoghue drank from the bottle. However, when Donoghue’s friend poured the remaining ginger beer into a tumbler, a decomposed snail also floated out of the bottle. Donoghue complained that she felt ill from this sight, complaining of abdominal pain. The Court held that the Defendant, Stevenson, had a duty of care to ensure that snails did not get into his bottle of ginger beer and that he had breached that duty by failing to provide a system that would clean the bottle effectively.

By the foregoing, the Court by the case of Donoghue v Stevenson {supra} established firmly the principle that a duty of care arises wherever a reasonable man foresees that if he does not take reasonable care, he will cause injury to the person or property of another. He needs not to foresee danger or injury to a particular person. It is sufficient if someone is likely to be injured if adequate care is not exercised. Lord Atkin succinctly states it thus: 

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, is my neighbour? the answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

The foregoing implies that even though privity of contract does not exist between the Plaintiff and the Defendant, the Defendant being a manufacturer of products owes the Plaintiff a duty of care, a responsibility to ensure that his products do not cause harm to its consumers. 

In the most recent case of Okwejiminor v Gbekeji & Nigerian Bottling Co Plc {2008} 5 NWLR {Pt 1079} 176, The Appellant bought a crate of Fanta Orange Drink from the 1st Respondent who happened to be a distributor or agent of the 2nd Respondent, the manufacturer. The Appellant while consuming one of the bottles of the Fanta orange drink discovered it to be contaminated, having a cockroach in it while one of the unopened bottles in the crate had a fly in it. He suffered an injury and thereafter instituted a suit against the Respondents, the Defendants at the trial Court. The Court allowed the Claim and on appeal the Court of Appeal overturned the decision but on further appeal to the Supreme Court, the Supreme Court overturned the decision of the Court of Appeal and held that the Respondents were liable for Negligence. The court specifically held Per Muhammad J.S.C at p. 58 paras A that: 

“Even when there is an absence of privity of contract between plaintiff and defendant, that per se does not preclude liability in tort. It also gives the proposition that manufacturers of products owe a duty of care to the ultimate consumer or user.”

Conclusively, a person claiming negligence must first establish that there exists a duty of care or that the Defendant owes him a duty of care even where there is no privity of contract. In Osemobor v Niger Biscuits {Nig} Ltd. {1973} N.C.L.R. 382; A manufacturer was held liable to the ultimate consumer for injuries resulting from the presence of a decayed tooth in a biscuit.

2. That there is a breach of the duty of care owed to him by the Defendant

A Plaintiff seeking redress has the burden to show that the Defendant is in breach of the duty of care being owed to him by effectively stating the particulars of the Defendant’s acts that breached the duty of care owed by him to the Plaintiff. 

In this circumstance, the Plaintiff must show that the product in question is defective and that the defect occurred as a result of the negligence of the Defendant. In Fisher v Harrods Ltd {1966} Lloyds, L.R. 500; the failure of the Defendants to test their products before putting it out to the market was held to constitute a breach of the duty of care. In Okwejiminor v Gbekeji & Nigerian bottling Co Plc {Supra} the fact that the Respondent allowed a cockroach to be present in the Fanta orange drink sold to the Appellant was enough to point to the breach of duty of care owed by the Respondent to the Appellant

3. That he suffered consequential damages as a result of the fact that the defendant breached the duty of care, he owes him

Aside from the burden to show that the defendant owes the plaintiff a duty of care and that the same was breached by the defendant, the plaintiff must also show that damage he suffered is a natural consequence of the wrongful act of the defendant. In Donoghue v Stevenson {supra} Lord MacMillan stated the principle thus: 

“The law takes no cognizance of carelessness in the abstract. The cardinal principle of liability is that the party complained of should owe the party complaining a duty to take care and that the party complaining should be able to prove that he has suffered damage in consequent of a breach of that duty” 

 

 

For example, in Grant v Australian Knitting Mills Ltd., {1933} HCA 35; the Plaintiff’s case succeeded because it was shown that his dermatitis was caused by the presence of a free sulphite in the undergarment. Similarly, the Plaintiff in Donoghue v Stevenson {Supra} succeeded in her claim on the finding that the presence of the decomposed snail in the ginger beer bottle consumed by the Plaintiff was responsible for the shock and gastro-enteritis which the Plaintiff suffered from.

Thus, it is not sufficient to say that the Plaintiff or a consumer suffered an injury or damage without linking the injury or damage to the wrongful act of the Defendant or manufacturer. In  Okonkwo v Guinness {Nig} ltd {1980} NCLR 109 at 130; the Plaintiff’s case was rejected on the ground that even though there was evidence of the fact that he vomited, and that he had cramps and suffered food poisoning, there was no medical evidence to link his injury to the contaminated stout he consumed. Furthermore, the medical witness did not ascribe the food poisoning to the stout consumed by him as it was not shown that the roots, leaves and bark of a tree found in the bottle of stout caused the food poisoning or were capable of causing it.

Defences available to the Manufacturer sued for manufacturing a defective product.

1.   Warning

A manufacturer sued for product defect may raise as a defence the fact that he has warned against the danger in question. In this regard, manufacturers are expected to insert instructive literature or manuals containing useful information and warning on the usage of the product. Consequently, a consumer who disregards a manufacturer’s warnings and gets injured as a result of such disregard is not entitled to any redress.

2. User’s Negligence or misuse of the product

If a product is otherwise safe but causes harm as a result of the misuse by the consumer, the manufacturer or seller will not be liable for negligence.  In this vein, if a product is safe for its normal use but causes damage as a result of an experimental adventure embarked by the consumer, the manufacturer will not be liable.

 

3.   Compliance with statutory standards and demonstration of a foolproof system of manufacture

A manufacturer who has taken reasonable care to ensure that his product or processes of production are compliant with laid down statutory standards and necessary qualifications from appropriate agencies can rely on the same to show that he was not negligent or that he took all steps necessary not to breach the duty of care reposed on him. 

In Nigeria, strict compliance with the guidelines from the Standard Organisation of Nigeria {SON} or National Agency for food and Drug Administration and Control {NAFDAC} may suffice.

Furthermore, a manufacturer can demonstrate to the court that he adopted a system of production that is foolproof, that is, he took reasonable care by putting in the right mechanism, machines or systems in the process of producing the products complained of.

4.   The act of a third party

The manufacturer can rely on the fact that the injury caused to the consumer was an act of a third party who may have intervened or interfered with the product. For example, if B is injured as a result of C’s interference with the product manufactured by A, A can raise the defence that C’s unauthorized and independent action or interference with his product caused the injury to B and not his negligence.  

Conclusion

Manufacturers of products have a responsibility to ensure that they take the appropriate care in complying with international best practices and adopting safety measures to ensure that their products are safe for consumption in order to avoid incessant litigation that may arise out of their negligence or to avoid causing irreparable loss to the consumers. 

Lastly, government agencies must take bold steps in fishing out substandard products from the market in order to safeguard the lives of their citizenry.