Keenan and Riches’BUSINESS LAW

Chapter 11Business and the law of tort

unable to present appropriate evidence, his case will fail.
However, there are some situations where the only or
most likely explanation of an accident is that the defend-
ant was negligent. If this is the case, the claimant may
claim res ipsa loquitur– the facts speak for themselves.
This has the effect of placing the burden of proof on the
defendant who must show either how the accident
occurred or that he has not been negligent. Two condi-
tions must be satisfied for res ipsato come into play:

■the event which caused the accident must have been
within the defendant’s control; and
■the accident must be of such a nature that it would
not have occurred if proper care had been taken by
the defendant.

337

Cassidyv Ministry of Health(1951)

The claimant went into hospital for treatment with two

stiff fingers. When he left hospital he had four stiff fingers

and a useless hand. The Court of Appeal held that the

defendant hospital was liable for the injuries. Res ipsa

loquiturcould be applied to assist the claimant in estab-

lishing his case. Lord Denning took the view that the

claimant was entitled to say:

‘I went into hospital to be cured of two stiff fingers. I have

come out with four stiff fingers and my hand is useless.

That should not have happened if due care had been

used. Explain it, if you can.’

Damage

Finally, the claimant must show he has suffered some
damage, that it has been caused by the defendant’s
breach of duty and is not too remote a consequence of
it. The kinds of damage which will give rise to an action
in negligence are: death, personal injury, nervous shock,
damage to property and, in limited circumstances, fin-
ancial loss.

Defences

The defendant may raise a number of defences to an
action in negligence. Consent, for example, is a com-
plete defence and negates any liability. Contributory
negligence is a partial defence and has the effect of re-
ducing any award of damages. Contributory negligence
will be considered in more detail later in this chapter
(see p 352 ).

We will now examine in more detail the potential busi-
ness liability by considering the extent of liability in tort
for defective goods and services.

Stennetv Hancock and Peters(1939)

Mrs Stennet was walking along a pavement when she

was struck and injured by a piece of wheel which had

come off a passing lorry. She received damages from

the owner of the garage where the wheel had been neg-

ligently repaired shortly before the accident.

Defective goods

There are three circumstances when the person respons-

ible for putting defective goods into circulation will

incur liability in tort for his products. These are:

1 in the tort of negligence;

2 strict liability under Part I of the Consumer Protec-

tion Act 1987; and

3 for breach of statutory duty under Part II of the

Consumer Protection Act 1987.

Negligence

A manufacturer may be liable to a consumer for loss and

damage caused by his defective product under the tort

of negligence.

A consumer must establish first of all that the

manufacturer owed him a duty of care. In Donoghuev

Stevensonthe House of Lords established the principle

that a manufacturer owes a duty of care to all persons

who are likely to come into contact with his goods:

... [A] manufacturer of products which he sells in such
a form as to show that he intends them to reach the ulti-
mate consumer in the form in which they left him with
no reasonable possibility of intermediate examination
and with the knowledge that the absence of reasonable
care in the preparation or putting up of the products will
result in an injury to the consumer’s life or property,
owes a duty to the consumer to take that reasonable care.
There is no limit to the type of goods covered by the
principle established in Donoghue: cases have involved
goods as diverse as cars (Herschtalv Stewart & Arden
Ltd(1940)), underpants (Grantv Australian Knitting
Mills(1936)) and hair dyes (Holmesv Ashford(1950)).
Since 1932, the pool of potential defendants has been
extended from manufacturers to cover anyone who does
some work on the goods, for example a repairer. The word
‘consumer’ has been given a wide interpretation to cover
anyone who is likely to be injured by the lack of care.