Carroll v Fearon & Ors

Negligence in product liability remains a question of fact. Once a specific manufacturing defect is proved, the claimant need not identify the individual responsible or specify the precise negligent act, provided the evidence supports an inference that the defect resulted from negligence. Res ipsa loquitur is not a substantive rule of law, but a common-sense method of reasoning from unexplained facts. It did not apply to a tyre that failed years after manufacture, although the proved manufacturing defect and the evidence available justified liability against the manufacturer. Causation for a failure to warn cannot be established by assuming that authorities, garages or vehicle owners would have acted on information that was never supplied. A sudden failure caused by a latent defect did not, on the evidence, justify attributing responsibility to the driver or vehicle owner.

Three actions arose from a motorway collision caused when a defective tyre on a Ford Cortina suffered a sudden tread strip. The High Court found the tyre manufacturer, Dunlop Limited, 80% responsible, the driver, Lundy Fearon, 8% responsible, and the owner, Alexander Bent, 12% responsible.

Dunlop appealed the findings of negligence and causation. Fearon and Bent appealed the findings that their driving, speed and tyre pressures contributed to the accident. The central issues were whether negligence could be inferred from the proved manufacturing defect, whether Dunlop’s failure to warn caused the accident, and whether the evidence supported liability against Fearon or Bent.

1. Disposition. Dunlop’s appeal was dismissed. The appeals of Fearon and Bent were allowed. Dunlop alone was held responsible, subject to consequential orders to be agreed and lodged by counsel.
2. Manufacturing defect. Res ipsa loquitur is not a principle of substantive law. It describes a common-sense reasoning process. It did not apply because the tyre failed years after manufacture and could have failed for several reasons. Nevertheless, once the judge had found an identified manufacturing defect and rejected misuse, abuse and other suggested causes, he was entitled to infer negligence. He did not need to identify the individual employee, group of employees, or precise act or omission responsible.
3. Dunlop could avoid liability if the defect could not have been avoided or detected by reasonable precautions before the tyre left the factory, or if it resulted from defective materials supplied by a reputable supplier and not detected by reasonable quality control. The evidence did not support those possibilities, and Dunlop had not advanced a viable alternative explanation.
4. Duty to warn and causation. The findings that Dunlop knew of a substantial risk affecting tyres made in May and June 1981, and failed to disclose the information to the relevant road-safety authorities, were supported by the evidence. However, causation required evidence of what the Department of Transport, an MOT garage and Bent would probably have done. The necessary evidence was absent. The judge’s causation finding was therefore open to serious doubt, although the observation was unnecessary to the result because Dunlop’s liability for the manufacturing defect was sufficient.
5. Fearon and Bent. The tyre failure was sudden and unexpected. The post-accident tyre pressures were unreliable evidence of pre-accident pressures, and there was no evidence that the alleged under-inflation would have materially affected a properly manufactured tyre. The evidence therefore did not support a blameworthy contribution by either Fearon or Bent.

• Court of Appeal (Civil Division): the appeals arose from the High Court decision of His Honour Judge Wilson-Mellor QC, sitting as a deputy High Court Judge in the Queen’s Bench Division. The Court of Appeal dismissed Dunlop’s appeal and allowed the appeals of Fearon and Bent.