chapter
1 Pages

WHERE DAMAGE IS SUFFERED BY A NON-PURCHASER

A problem arises in a case where it is not the purchaser who is injured, but a third party. For example, Alice purchases the defective television but it is her mother, Barbara, who switches it on and is injured in consequence. In such a case, there is no privity of contract between Barbara and the retailer. This means that Barbara must sue not the retailer but the manufacturer. The action is for the tort of negligence. The action was established by the case of Donoghue v Stevenson (1932). In this case, D’s friend bought some ice cream and ginger beer from M. Both D and her friend consumed the ice cream and beer. D was pouring herself a second helping of beer when the decomposed remains of a snail emerged from the bottle. D alleged that she suffered gastroenteritis in consequence. As she was unable to sue M for breach of contract because her friend had bought the beer, D sued the manufacturers of the ginger beer, S, for negligence. The case went to the House of Lords on the issue of whether, even if D were to prove the facts, S would be liable. S’s argument, which was thought to represent the law at the time, was that since S had a potential contractual liability to M in respect of the ginger beer, he could not have a concurrent liability to D in relation to the same goods: he did not owe D a duty of care. In a landmark judgment, which marks the beginning of the development of the modern law of negligence, the House of Lords held (but only by a three to two majority!) that S did indeed owe a duty of care to S, so that, if she proved her case, she would be entitled to damages. Reports state that the case was subsequently settled out of court for £100.