Neil, the answer is probably right in the actual case; I’m not as convinced by the reasoning. I like, but am suspicious of simplicity. Life (& tort) can be complex. I’m sure there are scenarios in between ‘mandated’ and ‘foreseeable’ where a warning would be appropriate, but (like an elephant) it is difficult to define in the abstract.

Taking Andrew’s example of a blowtorch with a severe danger of explosion if you misconnect the gas bottle – what if there are several models of gas bottle, but only one has the risk of explosion? You are mandated to use a gas bottle but not this gas bottle; I think the warning should still be required. There are other situations where an additional item is not mandated, but highly likely to be used and we might feel a warning is appropriate. For this, we would need additional information, as ‘highly likely’ is also doubtful as a legal test – some uses of an item are highly likely, but we don’t need a warning (knives are commonly used as screwdriver’s, but I wouldn’t mandate a knife manufacturer to place a warning on every knife produced – ‘don’t use as a screwdriver’)

Dear Colleagues;

We rarely note US Supreme Court decisions on tort matters, mostly because torts in the US is primarily a State issue. But the decision in Air & Liquid Systems Corp. v. DeVries

17-1104 (U.S. Mar. 19, 2019) https://casetext.com/case/air-liquid-systems-corp-v-devries provides an interesting example of a tort decision at this level. SCOTUS had jurisdiction because this was a Federal matter of maritime law, though the majority (the decision was written by Kavanuagh J) say that they are simply applying general tort principles.

The issue is this: where a manufacturer supplies equipment to others, and this equipment requires the use of other materials which are dangerous (here asbestos), does the manufacturer owe a duty of care to those who will be using the equipment, which requires warning of the dangers of the associated materials? A 6-3 majority says yes. They take the classic “Goldilocks” approach- here are 3 possible rules, one would require liability where use with the dangerous substance was merely “foreseeable” (too plaintiff friendly), one would exonerate manufacturers from any liability where they themselves did not add the substance (too defendant friendly), and the third rule would require a warning where the substance was mandated for proper use of the machinery by the manufacturer (just right!)

I think the majority decision seems sensible. For those accustomed to the usual “political” issues on SCOTUS, interesting to see that the latest “conservative” appointment, Kavanuagh J, sided with the “liberal” wing (including Roberts CJ who seems hard to pin down sometimes!) against the second-latest conservative, Gorsuch J (who wrote a dissent approved by Thomas and Alito JJ).

I must confess I can’t remember any “Commonwealth” (UK, Australia etc) decisions on the point, but it seems arguably a decision that is consistent with general common law principles.

Regards,

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

CRICOS Provider 00109J