Question 1

Alfred bought a $100 BJ2 electric personal blender from Metro Department Store for his

mother, Betty. BlenJust Ltd (“BJL”) has been making these blenders in Singapore for the

past 3 years. People often use them to make ice cold smoothies on the go.

Carefully following the instruction booklet, Betty started to make a daily strawberry

smoothie. The blender worked perfectly for a week. However, on the 8th day, there was a

problem. While making her usual strawberry smoothie, she felt the blender getting hot;

the blades broke, and the plastic jar shattered. Betty received cuts on her left foot, arms,

and ears; she started to scream. Her husband, Charlie, who was in the next room rushed

to see what had happened. When he saw Betty covered in blood, Charlie fainted.

Both Charlie and Betty were rushed to hospital. It turned out that although bloody,

Betty’s cuts were relatively minor and would normally have healed in less than a week,

with simple out-patient treatment. Instead, Betty ended up being hospitalized for one

month. This was because she had diabetes which caused the cuts to become severely

infected with a danger of gangrene developing. The incident caused Charlie, a retiree, to

suffer from Post-Traumatic Stress Disorder (PTSD) and he had to undergo psychiatric

treatment. Betty teaches music from her home and has lost income because she could not

teach while in hospital.

(a) Betty wants to use the tort of negligence to sue for her hospital bill and lost

income. Explain why it would probably be better for her to sue BlenJust Ltd

(“BJL”) rather than Metro. Fully advise her if she can succeed. Please also discuss

the merits of any defence(s) that BJL might want to use.

(b) Charlie wants to sue BJL in negligence for his treatment costs. Advise him

a) To sue BJL or Metro?

BJL has been making blenders for the past 3 years. Therefore, it would be reasonable for Metro to trust its products. Hence, no wrongdoing by Metro and better to sue BJL.

b) Issue

The case looks at whether Betty can sue BJL under the tort of negligence, for poor quality control which led to her physical injury and subsequent hospitalization bills and loss of income.

To prove the tort of negligence, three elements must be proven:

1. There is a Duty of Care

2. There is a breach of that duty of care.

3. Damages have resulted from the breach.

1. Duty of Care

Firstly, we need to establish whether the defendant owes a duty of care to the plaintiff. This is done through the test laid out by Spandeck (Spandeck Engineering (S) Pte Ltd v Defence Science Technology Agency [2007]).

This test is a two-stage test, comprising of, firstly, proximity and, secondly, if there are policy considerations to negate the prima facie duty of care, preceded by the threshold question of factual foreseeability.

If there is factual foreseeability and proximity, then there is a prima facie duty of care.

Factual foreseeability

To prove factual foreseeability, the Defendant should have foreseen that the negligent act would harm the victim. In this case, the Defendant should reasonably foresee that poor-quality control could potentially lead to physical injury and its associated costs.

This threshold question “will almost always be satisfied” (Sunny Metal v Ng Khim Ming Eric [2007]).

Proximity

Next, according to Chan CJ in Spandeck, there must be sufficient legal proximity based on the closeness and directness of the relationship between the parties.

There exists circumstantial proximity in this case. Based on Donoghue v Stevenson [1932], there exists a duty between the manufacturer of a product and its consumer. It can be inferred that this would apply to the manufacturer of a product (BJL) and its user (Betty).

There exists causal proximity in this case. Due to poor product quality control, Betty used a faulty product which resulted in injuries that led to her hospitalisation.

Voluntary assumption of responsibility is established as BJL assumes responsibility for acceptable quality control to users of its products like Betty.

There is a reliance by Betty on BJL, that acceptable quality control exists due to the professional nature of the company making blenders in Singapore for the past 3 years.

Thus, there is established a prima facie duty of care.

Policy

Beyond the Prima facie duty of care, there is need to consider any policy reasons to negate it. Hence, one must ask whether imposing a duty of care on the defendant would be against public interests.

In the case of Ultramares Corp v Touche (1931), there is a concern of floodgates with `3 Indeterminacies` of class, amount and time. However, in this case, the class is limited to the users. The amount limited to the physical injury and subsequent losses they might have received, the time limited to the expected lifespan of the product.

Thus, there is unlikely to be any public consideration negating the duty of care as otherwise, manufacturers would not have the motivation to ensure the quality of their products. As such, a duty of care exists between the parties to the Plaintiff`s injuries.

2. Breach of Duty

Under the Doctrine of Res Ipsa Loquitor, the general rule is that the Defendant is presumed not negligent unless proven otherwise. However, by using RIL, the burden is shifted to the Defendant.

In Scott v London and St Katherine`s Docks (1865), 3 conditions are required to be fulfilled.

1. Situation is in Defendant`s exclusive control. In this case, the Defendant is in exclusive control of ensuring the quality control of the product. The situation to be fulfilled is not that of the incident but that of the quality control.

2. Absence of other explanation. The Plaintiff had used the product according to instructions and had only used the product for 8 days. Thus, there is no other explanation but poor-quality control.

3. Harm would not have occurred if proper care had been taken. If the Defendant had implemented proper quality control, the Plaintiff would not have used a faulty product which would not have led to her injury and subsequent hospitalization and loss of income.

Thus, as all 3 conditions are fulfilled, if the Defendant cannot prove himself not negligent, he will have breached the Duty of Care.

Reasonable Man

A Defendant who owes a Duty of Care will only be negligent if his conduct fails to reach the Standard of Care expected of him. In Blyth v Birmingham Waterworks, this would be the omission to do something a reasonable man would do, or doing something which a prudent and reasonable man would not do.

This Standard of Care is an objective test determined by his level of skill, likelihood of harm, seriousness of harm, and cost of avoiding risk.

In this case, there is a high level of skill with the defendant being a professional company having experience in the making of blenders for the past 3 years.

From Bolton v Stone (1951), the more likely the injury, the higher the standard of care owed. There is a high likelihood of injury if the blender is faulty due to the proximity of the user to the blender, as well as the presence of blades.

The greater the risk of injury, the higher the standard of care owing and the more likely the breach of duty (Paris v Stepney Borough Council [1951]). Due to the presence of spinning blades, a high seriousness of injury is expected as this might potentially cause blindness.

In addition, there is a need to compare cost with risk (The Wagon Mound No.2 [1967]). In this case, companies should comply with quality control standards since the blender is a simple product. There is a low cost of avoiding the risk.

Under these guidelines, it can be determined that the standard of care is high, and the Defendant did not meet this standard of care. Thus, he breached his duty of care.

3. Resulting Damage

To determine if the Plaintiff had suffered damage because of the Defendant`s breach, the 2 concepts of causation and remoteness are used, as in Sunny Metal and Engineering Pte Ltd v Ng Khim Ming Eric (2007).

Causation

For causation in fact, the But-For test is used. If BJL controlled product quality, Betty would not have suffered cuts and incur hospitalization and loss of income.

Betty’s precondition of Diabetes was not the root cause of the injury and hence, is not relevant in causation.

Thus, causation in fact is established and novus actus interveniens does not exist.

Remoteness

Remoteness, which means limits the scope of damage that may be claimed. In this case, using the Reasonable Foreseeability Test (Bradford v Robinson Rentals Ltd [1967]), it is foreseeable that the Defendant`s poor quality control led to cuts by users and subsequent medical bill and loss of income.

Applying the egg-shell skull rule, the defendant must be liable for all the damages suffered by the plaintiff. Betty suffered more hospitalization time due to her diabetes that cannot be foreseen, however, BJL is still liable as the damage is not too remote.

With these 3 elements proved, BJL committed a tort of negligence towards Betty, and she would be able to sue for her hospital bills and lost income.

Defences

Volenti non Fit Injuria

Under Volenti non Fit Injuria, if the Plaintiff consented to the risk of injury and was fully aware of the risk, there is a complete defence against the Plaintiff. However, in this case, no consent is given nor awareness of risk.

Contributory Negligence

Under S3(1) of Contributory Negligence and Personal Injuries Act, the Plaintiff bears a portion of the loss based on share of responsibility for resulting damage.

In this case, the Defendant might claim that Betty felt the blender getting hot and did not move away. However, the blender getting hot is normal in its operation. In addition, the instruction manual was followed, thus there is no contributory negligence.

Against Res Ipsa Loquitor

The Defendant might seek to show that it did not breach the duty of care. It could show that the quality controls it had was adequate based on the relevant codes, and hence, reverse RIL.