Probably the most difficult problem for a consumer
to overcome is to establish a breach of the duty of care.
This means that the consumer must be able to prove
that the manufacturer failed to act reasonably in all the
circumstances. In determining whether the defendant
has acted reasonably the courts engage in a cost-benefit
analysis in which they consider a number of factors.
These include the likelihood and seriousness of injury or
harm, the cost and ease of instituting precautions to
eliminate or reduce the risk and the social need for the
product. The following case is a good illustration of how
the courts decide whether a manufacturer has exercised
reasonable care.
Finally, the consumer must be able to prove that he
has suffered loss or damage as a result of the manufac-
turer’s breach of duty. If the damage is caused by some
other factor, the manufacturer will not be liable.
Part 3Business transactions
338
Waltonv British Leyland (UK) Ltd(1978)The claimants were injured in a collision caused by
a wheel coming off the Austin Allegro car they were
travelling in at 60 mph on the M1. Although the accident
happened in 1976, the manufacturer of the car, Leyland,
had been aware since 1973 that there was a problem
with wheels coming adrift on the Allegro. Leyland con-
sidered recalling all cars affected by the fault and even
made an estimate of what it would cost (£300,000 in
1974). However, Leyland decided not to follow this course
of action for commercial reasons. Instead it issued a
product bulletin to all service managers of its accredited
dealers advising them of a change in the method of
adjusting the rear hub bearings. The court held that the
failure to recall all Allegro cars was a breach of Leyland’s
duty to care for the safety of those put at risk by the fault,
i.e. occupants of the Allegro and other road users.Liability in negligence is fault-based and the onus
of proving that the manufacturer was at fault is upon
the consumer. This can be a very difficult task as usu-
ally the consumer has no means of knowing exactly
what went wrong in the manufacturing process. Some-
times, however, the only reasonable explanation for the
defect is that someone acted negligently; for example,
buns do not usually have stones in the middle of them.
In this kind of situation the consumer may be able to
plead res ipsa loquitur, the facts speak for themselves.
This has the effect of reversing the normal burden of
proof; the manufacturer is presumed to have acted neg-
ligently unless he can prove that he took all reasonable
care.
Steerv Durable Rubber Manufacturing
Co Ltd(1958)
A girl aged six was scalded when her three-month-old
hot water bottle burst. She could not prove exactly how
the defect occurred, but she did establish that hot water
bottles are expected to last three years. The Court of
Appeal held that in the circumstances it was up to the
manufacturing company to show that it had not been
negligent. Since the company could not do this, it was
liable.Evansv Triplex Safety Glass Co Ltd
(1936)
The manufacturer of a car windscreen was not liable in
negligence when the windscreen shattered causing
injury and shock to the occupants of the car because
there was a number of possible causes of the accident.
The claimants were unable to prove that the disintegra-
tion of the windscreen had been caused by the glass
manufacturer’s failure to take reasonable care.Even if the consumer can establish a causal link
between the breach of duty and the damage, he cannot
necessarily recover damages for all the consequences
of the manufacturer’s negligence. A manufacturer is
liable only for loss and damage which is reasonably
foreseeable. It is well established that a consumer can
recover damages if the defective product causes personal
injury or damage to property. However, the position
is far from clear where the defect does not result in
physical injury or damage to other property. Until fairly
recently it was a settled point of law that a consumer
could not recover damages for pure economic (finan-
cial) loss, unless:
■it was caused by a negligent misstatement (see later
Hedley Byrne & Co Ltdv Heller and Partners Ltd
(1963)); or
■it was consequent upon foreseeable physical injury or
damage to property.
So, if a product simply ceased to work because of a
manufacturing defect, the consumer could not sue the
manufacturer in negligence for the cost of repair or