Exceptions to the Product Liability Action: Section 87 Defences

Strict liability needs boundaries, and Section 87 draws them: the product-liability action fails where the harm came from the consumer's own misuse, alteration or modification, and the failure-to-warn theories fail where the warning was given to the right intermediary, employer, manufacturer, expert, or was never needed, because the danger was obvious, commonly known, or the user's own condition caused the harm. This note takes the exceptions clause by clause, with the logic and the working examples of each.

1. Misuse, Alteration and Modification — Section 87(1)

The first exception restates causation as a defence: where the product that caused harm was, at the time of harm, being misused (used in a manner neither intended nor reasonably foreseeable, the pressure cooker run sealed and dry, the domestic appliance put to industrial load), or had been altered or modified after it left the defendant's hands (the rewired heater, the vehicle with the aftermarket kit), the chain between the defendant's product and the consumer's harm is broken. The burden of showing the misuse or alteration lies on the party asserting it, and the line matters: foreseeable careless use is the very thing warnings exist for and does not by itself defeat the action, while use against express instructions, or a third hand's modification, does. Read with Section 86(b), the scheme allocates cleanly: the seller who modified answers for it; the modification by another protects the chain.

2. The Warning Exceptions — Section 87(2)

The second set trims the failure-to-warn theories of Sections 84(1)(e) and 85(c): a product manufacturer is not liable for failure to instruct or warn in four situations where the law locates the warning duty elsewhere, or nowhere:

• The workplace purchase: where the product was purchased by an employer for use at the workplace and the manufacturer provided warnings and instructions to that employer, the industrial solvent, the machine tool: the employer, bound by labour and safety law to instruct the workforce, is the warning's proper audience, and the maker who informed him has discharged the duty.
• The component sold to a manufacturer: where the product was a component or raw material sold to another manufacturer, warnings were given to that manufacturer, and the harm arose from use in the end product, the chemical drummed to a factory, the cell built into a battery pack: the end-product maker controls the integration and the consumer-facing warning, so the duty passes to him.
• The expert-channel product: where the product was one legally sold only by, or under the prescription of, an expert and warnings were given to that expert, the prescription drug, the device implanted by a surgeon: the statutory form of the learned-intermediary idea, the physician who knows the patient stands between maker and user, and the warning that reached him is the warning the law requires.
• Intoxication and unprescribed drugs: where the harm was suffered while the product's user was under the influence of alcohol or a prescription drug not prescribed by a physician, the impairment, not the label, caused the harm, and no warning would have altered it.

3. Obvious and Commonly Known Dangers — Section 87(3)

The final exception denies warning liability altogether where the danger was obvious or commonly known to the user, or one the user ought to have known having regard to the characteristics of the product: the knife's edge, the flame's heat, the ladder's height. The law does not demand labels for what every user already knows, warnings exist to convey information, and a warning of the self-evident conveys none, while its clutter buries the warnings that matter. The measure is the ordinary user of that product: what is obvious to the trade may not be obvious to the household, and a danger obvious in kind (electricity bites) may still need warning in degree (this casing carries current when wet).

4. The Scheme of the Defences

• What Section 87 is not: it is not a general due-care defence, the manufacturer's strict liability under Section 84 for manufacturing, design, specification and warranty defects stands untouched; the section trims the seller's exposure (misuse and alteration) and the warning theories only.
• Causation remains the deepest defence: beyond Section 87, every action still fails where the defect did not cause the harm, the intervening cause, the coincidental injury, the harm outside Section 2(22).
• Pleading and proof: the exceptions are for the defendant to raise and establish on the facts, the misuse shown from the wreckage, the employer's or expert's receipt of warnings shown from the record, the obviousness argued from the product itself.
• Design cannot hide behind warnings: a danger that adequate design would remove is a design-defect case, and no warning, given or excused, answers it; Section 87's shelter is for the warning theories alone.

5. Related Topics and Provisions

• Product liability complete notes (Topic 52): the chapter end to end
• Liability of the manufacturer (Topic 55): the warning basis these exceptions trim
• Liability of the seller (Topic 57): the gateways Section 87(1) shelters
• Harm under Section 2(22) (Topic 22): the boundary that operates beside these defences