Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 44

88 where it was shown that the courts needs to
consider whether it is fair just and reasonable in
all the circumstances to impose a duty of care. The
cases suggest that to determine the liability of the
manufacturers the court will look into the likeli-
hood of the defective product or service causing
damage and the seriousness of the injury plus the
economic and social considerations.
In addition to the above, the manufacturer's
level of skill and knowledge at the time the product
was marketed are also will be taken into account
in determining whether there is a duty. Thus it is
to be noted that the consumers will not be able to
recover anything from the manufacturer if they
have succeeded in showing that they have used
the state-of-the art information or technology at
the time the products were sent to the market. In
the case of Vacwell Engineering Co. Ltd v. BDH
Chemicals Ltd the consumer managed to claimed
damages as the court was not convinced of the
adequacy of the use of state-of-the art informa-
tion and technology. In this case an explosion
caused by a chemical reaction that resulted when
an industrial chemical came contact with water.
The defendants were held liable for failing to
warn of the explosive quality of the chemical.
Even if the defendant were not actually unaware
of the hazard at the time when the product was
marketed, according to the court the defendant
could have discovered if they had conducted a
sufficient investigation of the potential hazards
of the chemical before marketing.
However, the manufacturer's liability is limited
to known or ought to have known defects and
not unknown and not discoverable defects. If the
manufacturer improves his product's safety than
the products in the market, the issue is, does he
have a duty of care in relation to existing products
already out on the market? Generally, if the product
is reasonably safe when it first put on the market,
there is no duty. Nevertheless, in exceptional cases
depending on the extent of the danger a recall or
renovation can be feasible and necessary. Recall
is only inevitable when the product in the market

is extremely dangerous. Manufacturer's liability
can be extended to negligence in the production
process. In this circumstance the manufacturer
must show that he did all what a reasonable man
in his position should have done to try to avoid
the injury or damage. In Grant v. Australian
Knitting Mills [1963] AC 85 the manufacture was
held liable in negligence for the failure to remove
sulphites from underpants.
In addition, when research or other subsequent
events reveals or confirm previously unsuspected
or insufficient danger, campaign or warning to
individuals is inevitable (Das, 2000). When the
hazard came to light, necessary precautions,
repairs, or alterations are to be taken as soon as
reasonably practicable. Placing appropriate warn-
ing is the primary liability of the manufacturers.
It is much easier for the plaintiff to establish
negligence in failure to warn cases where a duty
arises whenever a product is defective or danger-
ous, and the manufacturer had known or ought
to have known of the defect. However, in limited
circumstances, a manufacturer may be considered
have acted reasonably by relying on an intermedi-
ary to pass on a warning to ultimate consumer. In
Holmes v. Ashford [1950]2 All ER 76, the plaintiff
suffered from dermatitis after having her hair
dyed at a hairdresser. The manufacturer was not
found liable for negligence as they had supplied
labels and brochures warning and recommending
a prior skin test, which unfortunately were not on
the plaintiff. However, the law imposes a duty on
the manufacturer to check or test the component
part for safety before incorporating them into
their products. Checking or testing is particularly
important when it is shown that the component
manufacturer is not reputable.
The fact that manufacturing defects only a
small number of products is not a defence. How-
ever, a manufacturer may claim exemption of
liability if he can prove an appropriate system for
ordering suitable raw materials and components
taking reasonable steps by testing and inspecting
to ensure the final product is safe. Generally, it