SOURCES OF LAW AND THEIR EVOLUTION

PRE-DIRECTIVE 85/374/EEC RIGHTS AND REMEDIES

Prior to the implementation of Directive 85/374/EEC a victim of a product defect could bring himself within one or more of several legal categories, all of which continue to exist today. In particular, an action lay in tort and contract, and criminal consequences could also follow.

1) An Action in Tort

It was in the spring of 1932 that the (then) House of Lords handed down judgment in what would arguably become the most famous case in the common law: Donoghue v Stevenson. Their Lordships ruled there that the manufacturer of any article, apart entirely from contract, owes a duty to its ‘neighbour’ – on the facts, the ultimate consumer of a bottle of ginger beer – to take reasonable care to ensure that the article is carefully produced. The case created the modern concept of negligence, the most common basis of litigation in tort. Tort's appeal lay in its extension to persons other than the actual ultimate purchaser, the drink in Donoghue v Stevenson having been paid for by the claimant's friend. Its major disadvantage, however, was and remains the need to prove negligence. Daniels and Daniels v R White & Sons Ltd and Tarbard – a case that arose subsequently – is illustrative of the diffi culties that inhered in framing one's action in tort. The facts, personal injury arising from a defective bottle of lemonade, relate closely to those in Donoghue v Stevenson, but the claim against the manufacturer in tort failed in Daniels and Daniels since the manufacturer was found to have adopted a ‘fool-proof method of cleaning, washing and filling bottles’ and effectively supervised the process so that the presence in the bottle of 38 grains of carbolic acid could not have been attributed to its negligence.

2) An Action in Contract

A right of action founded on breach of contract co-existed alongside that in tort. However, the former action was and is of course limited to instances where there is a direct contractual relationship between the parties (cf the position under the Contracts (Rights of Third Parties) Act 1999, discussed in no 75).