particularly evident in the 1982 Act extracted above: if goods are not of satisfactory quality then the bailor will be liable even if he himself was in no way to blame. The seller of goods incurs a similar liability (Sale of Goods Act 1979, s 14). This strict liability is justified on economic and social grounds in Hyman v Nye, but it still leaves open the question as to why, particularly in a consumer society, services are treated differently. Ought one to start off from the assumption that an action for breach of contract is based upon fault? Should contributory negligence be a defence? Does the Sale of Goods Act (see p 514) (and the Supply of Goods and Services Act) recognise contributory negligence as a defence? 2 One reason for the difference between goods and services is to be found in the wording and institutional structure of the statutory provisions. Section 9 of the Supply of Goods and Services Act 1982, like s 14 of the Sale of Goods Act 1979, is framed around the res (goods), rather than the persona (seller). Thus, liability becomes dependent upon the state and condition of the goods. In s 13 of the 1982 Act, however, the rule is framed around the persona (supplier), and this automatically brings into play the behaviour of the supplier. The obligation, in other words, attaches to the person rather than to the thing. Imagine that Parliament had wanted to introduce strict liability for services: can you redraft s 13 so as to reflect Parliament’s wishes? 3 English contract law is often said to be an obligation of strict liability rather than one that is fault-based; the civilian systems, in contrast, are said to be fault-based. There is truth in this at the level of contractual theory, but in practice it often comes down to interpretation. What did the parties actually promise (common law) or agree (civil law)? And policy has its role as well. Who ought to bear the risk of this damage or loss: the plaintiff or the defendant? Does, or should, insurance have a role here?
Denning LJ: No one can be unmoved by the disaster which has befallen
these two unfortunate men. They were both working men before they went
into the Chesterfield Hospital in October 1947. Both were insured contributors
to the hospital, paying a small sum each week, in return for which they were
entitled to be admitted for treatment when they were ill. Each of them was
operated on in the hospital for a minor trouble, one for something wrong
with a cartilage in his knee, the other for a hydrocele. The operations were
both on the same day, 13 October 1947. Each of them was given a spinal
anaesthetic by a visiting anaesthetist, Dr Graham. Each of them has in
consequence been paralysed from the waist down.