In Gammon (Hong Kong) Ltd vs Attorney-General for Hong Kong (10) following points has been laid down to determine the circumstances to which strict liability to be imposed. (1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; ” 8. Phillips v. Cricket Lighters, 841 A. 2d 1000 (Pa. 2003) 9. R Vs Storkwain (1986)
10. Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong  2 All ER 503 Strict Liability 7 (2) The presumption is particularly strong where the offence is truly criminal in character; (3) The presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern;
(5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. Essentials of strict liability For the application of this rule the following three essentials should be there:
1) Injury by a defective product: In order to succeed the strict liability under the law the plaintiff must show that the injury must be caused by a defective product whose defect existed at the time of injury and the product should be plaintiffs control. In the recent case of Ceiba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en n Ander (11) it was held that the liability arising from the defective products not only related to the personal injury but financial loss also.
It was further confirmed that when a manufacture undertakes or market the production without any prior tests and 11. Ceiba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en n Ander, 2002 (2) SA 447 (SCA) Strict Liability 8 consequently it turns hazardous to the consumer such negligent activities expose a liability to the consumer. Here a contractual nexus between the manufacturer and the consumer is not required. (Weir, Tony 2006), (12)
2) The goods must be dangerous or defective in nature: Here the plaintiff must show that due to the dangerous nature, such goods can not be used for the ordinary purpose or for some other reasonably foreseeable purpose. Thus, a manufacturer owes a duty to supply a product fit for the ordinary purposes and it is to be used and safe notwithstanding a reasonably foreseeable misuse that could cause injury. The decisions in famous cases like Batcheller Vs Tunbrige Wells Gas co. ,(13) National Telephone Co. Vs Baker (14)and West Vs Bristol Tramways Co.
(15)manifests that the defective products are whatever in form ,whether it is gas, electricity noxious fumes ,the rule of strict liability can be applied. 3) The goods should leave the manufacturer: It is essential that the thing caused injury to the plaintiff must leave from the possession and control of eth defendant. So those defective goods are still with the manufacture is safe from the claim of compensation. In Read Vs Lyons (16) (text) the plaintiff was the employee in the defendants munitions factory. While performing her duty a shell was exploded and she was injured .
Even -12. Weir,Tony,( 2006),an introduction to Tort law,2nd edn. , Oxford University Press 13. Batcheller Vs Tunbrige Wells Gas co. 84 L. T 765 14. National Telephone Co. Vs Baker (1893) 2 ch 186 15. West Vs Bristol Tramways Co. (1908) 2 K. B 14 16. Read Vs Lyons (1947) A. C 156, 161 Strict Liability 9 though the shell exploded was dangerous in nature it was held that defendants were not liable as the shell was not left from outside the defendants premises and the rule of strict liability could not be applied in this case.
4) Breach of warranty: Generally, the law imposes certain warranties (or guaranties) on the sale of products. Such warranties include that the goods are in proper condition for use and free of defects and that they are fit for a particular purpose. Since the court doesnt disregard the liability of the waivers against the policy and the warranties are limited, the manufacturers and retailers are always held responsible for injuries from the defective and dangerous products.
The aspect of breach of warrenty enables the plaintiff to act against the defendant with his complete freedom. Here he need not assert that the defendant is fault. Usually the product claims under the breach of warranty are in quasi contractual nature. Any factual statement or promise about the product ,a description of the product made ,any sample or model provided constitutes the warranty upon which the buyer rely to purchase the goods. ( Faegre & Benson,. 2003)(17).