Common Law and the Consumer-Duty to take care and liability for negligence

In one minute

Before the Consumer Protection Acts, a buyer had to rely on the contract and on the tort of negligence. The old rule was "let the buyer beware". Privity of contract also meant that only the buyer, and only against the seller, could sue. Donoghue v. Stevenson broke the privity barrier by giving a duty of care to the ultimate consumer.

In exams, this topic is asked as "explain the common law protection of consumers and the duty of care", and as a problem on a defective product or a careless hospital. The usual trap is to forget that the Consumer Protection Act supplies the forum, and the common law supplies the idea of carelessness.

Legal provision

• Sale of Goods Act, 1930, section 16: the buyer must beware, subject to the implied conditions as to quality or fitness set out in the section.
• Indian Contract Act, 1872: the law of contract, and the rule that only a party to a contract can sue on it.
• Consumer Protection Act, 2019, section 2(11): "deficiency" includes any act of negligence or omission or commission by the service provider that causes loss or injury to the consumer.
• Consumer Protection Act, 2019, sections 82 to 87: product liability, which has a statutory basis of its own.

Meaning and definition

The common law is the law made by judges. For a consumer, it means two things. The contract gives rights against the seller. The tort of negligence gives rights against anyone who owes a duty of care and fails to take reasonable care.

Detailed explanation

Step 1: Caveat emptor and privity

• Caveat emptor means "let the buyer beware". The buyer, not the seller, took the risk of poor quality unless the contract said otherwise.
• Privity of contract means that only the parties to a contract can sue on it. In Winterbottom v. Wright (1842), a coach driver injured by a defective coach had no claim against the maker, because the contract was with the postmaster.
• A buyer who gave a gift to a friend, or a patient treated in a hospital run by the State, often had no direct contract at all.

Step 2: The duty of care

• In Donoghue v. Stevenson, a decomposed snail was found in a bottle of ginger beer that a friend had bought for Mrs Donoghue. She had no contract with the manufacturer.
• By three Lords to two, the House of Lords held that the manufacturer owed her a duty of care.
• Lord Atkin said that a person must take reasonable care to avoid acts that he can reasonably foresee would injure his neighbour. Neighbours are those who are so closely and directly affected that he ought to have them in mind.
• The duty arises where the product reaches the consumer in the form in which it left the maker, with no reasonable possibility of intermediate examination.
• The decision only held that the pleaded facts stated a claim. Negligence still had to be proved. There is no presumption of negligence.

Step 3: What the consumer must prove in negligence

• A duty of care owed to the consumer.
• A breach, which is conduct below the standard of a reasonably competent person in that trade or profession.
• Damage caused by the breach, which is not too remote.
• The standard differs by trade. A doctor is judged against a reasonably competent doctor. A bank is judged against a reasonably competent banker.

Step 4: Hospitals and professionals

• In Cassidy v. Ministry of Health, a man went in for a routine hand operation and came out with a stiff hand. He could not point to which employee had been careless. The Court of Appeal held that the hospital could not hide behind that uncertainty, because it was responsible for its whole team.
• A hospital that employs and organises doctors and nurses to run a treatment service owes the patient a duty to see that the treatment is given with reasonable care.
• In Indian Medical Association v. V.P. Shantha, the Supreme Court held that medical service for a fee is a service under the Consumer Protection Act, with a narrow exception for care that is completely free.

Step 5: Product liability

The duty of care, freed from privity, grew into product liability: the responsibility of a manufacturer, and later of sellers, for harm caused by a defective product. The 2019 Act gives this a statutory basis in sections 82 to 87. The logic is the same as in Donoghue v. Stevenson: a manufacturer cannot hide behind the absence of a contract with the injured consumer.

Step 6: Why a Consumer Protection Act was still needed

• A suit in negligence needs a full trial, court fees, formal pleadings and often many years. This is too heavy for a small claim, such as a defective television.
• The common law did not address rights such as the right to be informed and the right to be heard.
• The Consumer Protection Act gives the same underlying right a quick and cheap forum, with the Consumer Commissions.

1. 1. Caveat emptor and privityThe buyer bears the risk and only a party to the contract can sue.
2. 2. Donoghue v. Stevenson (1932)A manufacturer owes a duty of care to the ultimate consumer, even without a contract.
3. 3. Negligence in trade and professionThe standard is a reasonably competent person in that field. Hospitals answer for their whole team.
4. 4. Consumer Protection ActsA quick and cheap forum, with deficiency in service, product liability and consumer rights.

Don't confuse: a suit in negligence and a consumer complaint

Point	Suit in negligence	Consumer complaint
Source of the right	Common law duty of care	Statute, with the same idea of negligence in deficiency of service
Forum	Civil court, full trial	Consumer Commission
Cost and speed	Court fees on the claim; slow	Small fee; summary procedure
Proof	Duty, breach, damage	Defect or deficiency, and loss

Common mistakes

• Saying that Donoghue v. Stevenson proved negligence. It decided only that a duty can exist.
• Forgetting that privity limited claims before Donoghue.
• Treating the Consumer Protection Act as a replacement for the idea of negligence. It borrows it.
• Forgetting that the standard differs for each trade or profession.
• Saying that the consumer need not prove anything. The complaint still needs a defect or deficiency and a loss.

Apply it

Leading case laws

• Donoghue v. Stevenson (1932)

  Facts. On 26 August 1928, a friend bought a bottle of ginger beer for the claimant. A decomposed snail floated out of the opaque bottle.

  Principle. The manufacturer owes the consumer a duty of care. Lord Atkin's neighbour principle.

  Significance. Broke the privity barrier; the base of consumer protection in tort.

• Cassidy v. Ministry of Health (1951)

  Facts. A routine operation on two stiff fingers left the claimant with a stiff hand, and he could not identify who was careless.

  Principle. The hospital was responsible for its whole team.

  Significance. Hospitals answer for their staff.

• Indian Medical Association v. V.P. Shantha (1995)

  Facts. Conflicting rulings on whether medical work is a service under the Consumer Protection Act.

  Principle. Medical work for a fee is a service, except care that is completely free.

  Significance. Doctors answer before Consumer Commissions.

How to write this answer in the exam

Key points to remember

• Old rule: caveat emptor and privity of contract.
• Donoghue v. Stevenson: duty of care to the ultimate consumer without a contract.
• The consumer must still prove negligence.
• The standard is of the trade or profession.
• The Consumer Protection Act gives the same right a quick and cheap forum.

Quick self-test

Related topics

• Negligence
• Consumerism
• Defects in goods and deficiency in services
• Liability of the Service Providers, Manufacturers and Traders under the Act- Product Liability