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Published: Fri, 02 Feb 2018

Duty of care in supermarket food

One part of the fact is that Beauty ordered some foods and drinks from Best Food to entertain guests. However, many guests got sick and rushed to the hospital after drinking Mango Cola containing higher level of carbon.

So, the first legal issue here is: Did Best Food held the product liability to the guests in wedding who drank Mango Cola manufactured by it with defectiveness?

Caparo’s three-fold test is popularly used to identity whether people own duty of care in various circumstances. In Caparo Industries plc v Dickman [1] , this test was established with three requirements: reasonable foreseeability of loss to defendant; close proximity between parties; and reasonable and just circumstances. The criterion of Caparo’s three-fold test is of great importance to determine the scope of duty of care between parties in various relationships.

Back to the fact, firstly, Best Food, the manufacturer of Mango Cola had a reasonable foreseeability of the injury of wedding guests, since everyone knows that defective drinks will cause some injury to the body. In Palsgraf v Long Island Railroad Co [2] , Cardozo CJ ascertained that defendant is liable for injuries arising in the ordinary course of things. Apparently, I think, it is not an exception that drinks with problems will cause illness. Thus, there is the existence of foreseeability of Best Food.

Secondly, I think there is sufficient proximity of relationship between the Best Food and wedding guests. Although there is no contract between Best Food and wedding guests because Mango Cola was ordered by Beauty, they are still in the relationship of manufacturer and ultimate consumers. We can notice that there is a similar fact in Donohue v Stevenson [3] that the Ginger beer plaintiff drunk was sent by her friend, not bought by plaintiff herself, and the dead snail in it was the reason of her serious illness. Lord Atkin held that the manufacturer was liable to ultimate consumers based on the famous neighbour principle. Neighbor principle simply means that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen to injure neighbour in law, those who may be directly affected by those acts or omissions. It is clear that Mango Cola is manufactured by Best Food, and wedding guest was the ultimate users. As a result, it is inevitable that Best Food’s negligence of making defective drink made wedding guests ill. It can be considered that ultimate consumers and manufacturers have legal links through the specific products. So, there exists a relationship of close proximity between two parties since wedding guests are Best Food’s neighbours in law.

Thirdly, there is no reason to deny this situation is fair, just and reasonable to impose duty of care to Best Food without any policy consideration.

By applying Caparo’s three-fold test, it can be concluded that Best Food owns duty of care to wedding guest.

Furthermore, Donohue v Stevenson also created the general principles governing the product liability by Lord Atkin. It can be comprehended that manufacturers, owning the duty of care to ultimate consumers, could held product liability if the product used properly is dangerous or defective, and has caused personal injuries or damage to other property by its own negligence.

Besides the key points discussed above, there are several situations should be considered to determine whether Best Food owned the product liability due to general principles governing the product liability. It is known that the higher level of carbon is apparently based on the reason of the negligence of Best Food, since there was no other possibility that other party can cause this kind of defectiveness. So this fact meet the requirement that the particular product must be intended to reach in the form in which it left the manufacturer, which derived from Grant v Australian Knitting Mils [4] . Meanwhile, that wedding guests drank Mango Cola is the way of using the product that Best Food intended. In addition, wedding guests got sick with diarrhea, which certainly is the “injury to the consumer’s life”.

So, it can be summarized that Best Food held the product liability to the certain wedding guests.

According to the fact, we know that after Beauty used “Plump Up” on wedding day, her skin developed a rush. Doctors cannot be sure whether the symptom is merely caused by “Plump Up” or by combination of “Plump Up” and “Rosy Glow”, a makeup Beauty using without any allergy. Apart from these, there is no warning on the pack of “Plump Up”.

So, the second legal issue here is: Did Marnier held product liability of “Plump Up” to Beauty?

In product liability, it is unreasonable that ultimate consumers bear a responsibility to examine the product automatically without any warnings or illustrations. Manufacturer should ensure products to be immediately used without any warning since ultimate users know less about products. After all, manufacturers’ duty is to protect users by providing safe product.

There is a similar fact to the fact mentioned above is that the makeup was bought by Beauty’s sister, not Beauty herself, and Beauty suffered physical injuries after using the products manufactured by Marnier. So, I believe on the ground of same reason illustrated above, Marnier owns duty of care to Beauty. Then, Marnier may hold product liability to Beauty.

Firstly, what can be ascertain due to the fact is that Beauty’s skin suffered a rush after using the “Plump Up” no matter the reason is “Plump Up” is defective or the combination of “Plump Up” and “Rosy Glow” is not good. Marnier cannot proclaim that it may not be the defectiveness of their products to cause the injury. So, “Plump Up” can be identified as a defective or dangerous product, causing physical harm to Beauty.

Secondly, because of not offering necessary prompt on the pack of “Plump Up”, Marnier failed to perform its duty. It is quite understandable that manufacturer cannot expect that the ultimate consumers will examine the product themselves without out any warning. As a manufacture of makeup, staffs in Marnier can be professional to foresee that some women may not suit all their products. It is also can be foreseen that women do not use only one makeup, and defective combination may occur. So, Marnier cannot merely state that they cannot foresee what will happen to Beauty to escape liability. It is Marnier’s duty to provide with sufficient warning of allergy or bad combination to all ultimate consumers.

Similarly, in Grant v Australian Knitting Mills, [5] the manufacturer was held liable because he had no reason to contemplate an examination by the retailer or ultimate buyer before use. In Lam Mo Bun v HK Aerosol Co. Ltd & Ors [6] , whose fact resembles to the presence, the manufacturer is liable for plaintiff’s injuries caused by explosion of product. There was no warning on product to avoid an explosion. Court held that by failing to warn of the danger of products, the manufacturer should be considered as failing to fulfill its duty.

Based on the reasons above, I think Marnier hold the product liability of “Plump Up” to Beauty.

Although the fact is that Beauty was allergic to another Marnier’s makeup, “Perfect Eye”, and she suffered some physical injury, the different situation is that there is a warning on the pack, which asked the users not to use this product without certain test.

It is a general principle that manufacturers can hold no liability by providing a sufficient warning on the product, which can be easily found in decision of Kubach v Holands [7] . However, inadequate warning cannot protect manufacturers. So, we should focus on the third issue here is: Can the Warning in small print be the defense for Marnier to escape the product liability of Perfect Eye?

The warning which can make manufacturers escape their liability, I think, should be clear and noticeable enough for consumers to see. Manufacturers not only have a duty to warn, but they also have to ensure the warning can be seen by consumers at a reasonable standard. I think that warning in small size is inadequate, and an inadequate warning equals that there is no warning at all. There is a particular case in America, McLaughlin v Mine Safety Appliances [8] . In this case, the instructions of the product were found in small print on the back of the containers. The court held that insufficient instructions were not a warning of the risk, and that “it was foreseeable that the small print instruction might never be read”. The court considered the warning in small print as a “so-called warning”, which I think can be also called fake warning. Marnier should know that the pack of makeup is already very small, they are on duty to make the warning clear enough to be seen, or the warning is very likely to be ignored by ultimately consumers. So, there is no sufficient or adequate warning on “Perfect Eye”, which result that Marnier may held product liability to Beauty.

The remaining fact is that Teena with heart condition got very upset and suffered a shock when she saw many guests got sick. And she now has developed a phobia for drinking liquids.

So, the last issue in this case is: Can Beast’s mother, Teena, claim for psychiatric illness to Fast Food?

Two steps should be taken to determine whether a person can get the recovery of psychiatric illness. Firstly, the plaintiff’s injury should be the legally recognized psychiatric illness, such PTSD. Secondly, the plaintiff should be a primary victim or a secondary victim.

Based on symptoms, Teena’s reactions meet the features of PTSD, such as “the person’s response to the event must involve intense fear, helplessness, or horror.” So I think a phobia for drinking liquids is a recognized psychiatric illness.

Then, I think, Teena can be considered as a primary victim in certain circumstance. It is true that Teena did not get sick by drinking Mango Cola. However, Teena is one of wedding guests and Mango Cola with defectiveness can be available to her, so Teena is in a potential risk which she may get sick as well by drinking the drink with problems. According to the fact, we can be sure that Teena is within the range of potential physical injury. In Dulieu v White & Sons, [9] the plaintiff suffered miscarriage by extreme fear of her own safety because the defendant drove horse van into the place where the plaintiff was. That is the same reason that Teena got upset at that time. The defendant in White’s case was held liability of plaintiff’s psychiatric illness ultimately.

The decision in White’s case seems to make it clear that, in order to qualify as a “primary victim”, the claimant must establish that he has been placed in physical danger by the defendant’s negligence or at least has been put in reasonable fear for his physical safety. [10] Teena under a potential risk to get sick by drinking Mango Cola is a reasonable ground for fearing for her safety. She can be identified as a “primary victim” because her psychiatric illness came from a reasonable fear or potential risk of immediate personal injury. Thus, Best Food may be liable to nervous shock of Teena.

To conclusion, there are three potential claims can be raised. One is that Beauty can sue Marnier on the ground of product liability of “Plump Up”. Another one is that the wedding guests who got sick can bring an action to Best Food for the product liability. The third one is that Teena can claim for recovery for psychiatric illness to Best Food.

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