ABSTRACT
If one returns to the facts of Donoghue v. Stevenson (Chapter 5), it has already been seen that they can be ‘constructed’ in a number of different ways. The emphasis on the transactional bond between the consumer and the seller of the ginger-beer is one possible legal relationship; the link between the consumer and the manufacturer is another. The seller might or might not be liable in the law of contract, while the manufacturer could be responsible on the basis of negligence. When viewed from the position of the remedy (damages), however, it makes little difference what relationship acts
as the foundation of the duty or obligation. What matters to the injured person is whether they are awarded compensation. Of course, the question of liability is supposedly determined by the preexisting law; one person will be liable to compensate another only when they have contravened rules primarily set out in the law of obligations. Liability, in other words, is determined by the preexisting rules. But often these rules can turn out to be much more fluid and open-ended when set in the context of certain factual situations (the ‘hard case’ perhaps) and judges are then faced with having to decide on the basis of the ‘justice’ of the case. Are these kinds of liability cases dependent upon theoretical assumptions that stretch beyond those underpinning rule categories such as contract or delict (tort)? Indeed, are the rules themselves dependent upon certain theories of liability?
