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IN THE SUPREME COURT OF JUDICATURE QBENF 96/0472/C

COURT OF APPEAL (CIVIL DIVISION) QBENF 96/0474/C

ON APPEAL FROM THE HIGH COURT OF JUSTICE QBENF 96/0486/C

QUEEN'S BENCH DIVISION QBENF 96/0487/C

(His Honour Judge Wilson-Mellor) QBENF 96/0576/C

Royal Courts of Justice

Strand, London WC2

Tuesday, 20th January 1998

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE AULD and

LORD JUSTICE JUDGE

---------------

(1) ALAN CARROLL

(2) SUSAN CARROLL

(3) CATHERINE CARROLL

(4) STEPHEN CARROLL

(An infant suing by his father and

next friend Alan Carroll) Plaintiffs

-v-

(1) LUNDY FEARON

(2) ALEXANDER BENT

(3) SP TYRES (UK) LIMITED

(4) BTR PLC

(5) DUNLOP LIMITED Defendants

---------------

(1) ASTRID BARCLAY

(2) DELROY BENT Plaintiffs

-v-

(3) DUNLOP LIMITED

(4) LUNDY FEARON Defendants

-v-

ALEXANDER BENT Third Party

---------------

LUNDY FEARON Plaintiff

-v-

DUNLOP LIMITED Third Defendant

-v-

ALEXANDER BENT Third Party

---------------

Handed Down Judgment prepared by

Smith Bernal Reporting Limited

180 Fleet Street London EC4A 2HD

Tel: 0171 421 4040 Fax: 0171 831 8838

(Official Shorthand Writers to the Court)

---------------

MR J ROSS (instructed by Messrs Townsends, Swindon) appeared on behalf of Mr Fearon and Mr Bent as Defendants.

MR C PURCHAS QC and MR J WAITE (instructed by Messrs A E Wyeth & Co., Dartford) appeared on behalf of Dunlop.

MR S BROWN QC and MR N DAVIES (instructed by Messrs Latchams Montague Niblett & Co., Bristol) appeared on behalf of Mr Bent and Mrs A Barclay in the Second Action.

MR J CROWLEY QC and MR T SAUNT (instructed by Messrs Charles Lucas & Marshall, Newbury) appeared on behalf of the Carroll Family.

MR C SHARP and MISS J LEBASCI (instructed by Messrs Bennett Metcalfe, Bristol) appeared on behalf of BTR and Mr Fearon in the Third Action.

---------------

J U D G M E N T

(As Approved by the Court)

Crown Copyright

JUDGE LJ:

At about 11.00am on 9th July 1988 Alan Carroll was driving his Austin Princess along the M4 westbound to Wales. He and his wife, Susan, together with their children, Catherine and Stephen, were off on their summer holiday. Mr Carroll was driving a well maintained car carefully and safely in excellent driving conditions.

Among the traffic travelling in the opposite direction in the eastbound carriageway there was a Ford Cortina owned by Alexander Bent. He was travelling as a passenger in his own car which was being driven by his friend Lundy Fearon. Mr Bent’s partner, Astrid Barclay was sitting in the back seat, immediately above the rear nearside tyre. It is relevant to the issues in this appeal to note that she was a heavily built lady. In addition his son Delroy, aged fifteen years, and her daughter Lolita, aged twelve years, were also travelling on the back seat.

This Ford Cortina was first registered in 1982. It had travelled nearly eighty two thousand miles. Mr Bent acquired it in May 1987. By 9th July 1988 he had driven it about 4000 miles. He ensured that his car passed its MOT tests as and when required. It had not passed its MOT test on 22nd May 1988 until the two front tyres had been replaced, as it happened by second hand tyres, not retreads. In addition to the condemned two front tyres the tests revealed problems with the trailing arm bushes and the nearside wishbone bushes, the offside front shock absorber was broken and there was slight play on the front hubs. These faults were corrected. Nevertheless the evidence demonstrated “a car which was plainly not being maintained unless and until parts were condemned”. For present purposes the most significant feature of this car was the condition of the rear nearside tyre. The tread, although within legal limits, was worn down to some 25% -30% of its life. There were signs on its outer wall of crazing and cracking consistent with degradation, but this tyre passed its MOT test in May 1988 and had covered a further 1052 miles before the accident.

The car had travelled some thirty three miles from Bristol and the party was going to a wedding in Swindon. They were not far from their destination when disaster, in the form of a sudden and virtually complete tread strip of the rear nearside tyre occurred. Mr Fearon lost control of the car. As it happened there was a twenty seven metre gap in the crash barrier between the two carriageways on the motorway, and near to the Swindon exit marker post 146, the Cortina spun through 360 degrees and careered through the emergency crossing gap in the central reservation into the westbound carriageway and crashed virtually head on with Mr Carroll’s car. There was nothing he could do to avoid a collision at a converging speed of 140 miles per hour or more.

Everyone in Mr Carroll’s car was injured. His wife’s injuries were of the utmost gravity and she has suffered and will suffer from the most severe long term consequences. The state of the group in Mr Bent’s car if anything was worse. Lolita Barclay was killed. The driver and other passengers were injured.

Arising out of this collision three actions were brought. Mr Carroll and his wife and their children brought proceedings against Mr Fearon, Mr Bent and Dunlop Limited, the manufacturers of the tyre. Astrid Barclay and Delroy Bent brought proceedings against Mr Bent, Mr Fearon and Dunlop Limited and Mr Fearon himself took proceedings against Dunlop Limited who joined Mr Bent as a third party. In the meantime, to protect their own position, the insurers for Mr Fearon and Mr Bent involved themselves in the litigation. The litigation proceeded very slowly, its progress impeded, at least in part, by the difficulties encountered by the various plaintiffs in establishing the date of manufacture of the tyre, and therefore the actual manufacturer, and by disappointing reticence by Dunlop to be open and forthcoming about discovery.

Eventually the case was heard in Oxford by His Honour Judge Wilson Mellor QC sitting as a deputy High Court Judge of the Queen’s Bench Division. After a very lengthy hearing lasting 22 days he concluded that Dunlop, as the manufacturers of the tyre, were largely to blame for the accident but that both Mr Fearon and Mr Bent should carry some responsibility. Liability was apportioned 80% to Dunlop, 8% to Mr Fearon and 12% to Mr Bent. Each of these parties appeals against the finding of negligence made against him.

The tyre was a 165 SR 13 “SP4” radial tyre manufactured by Dunlop Limited at their Washington factory in Tyne & Wear during the week of 4th June 1981, well before the enactment of the Consumer Protection Act 1987.

A considerable body of evidence was assembled before the judge to enable him to decide between two alternative explanations advanced for the catastrophic tread strip. In essence, Dunlop’s contention was that the tread strip was the result not of a manufacturing defect but of persistent abuse of the tyre by running it or allowing it to run under inflated for significant distances: the allegation advanced against Dunlop was that the tread strip was the consequence of a defect in the manufacturing process. After a prolonged hearing the judge rejected the assertion that the tyre had been misused and concluded that the manufacturing process had been defective. There was overwhelming evidence to support this conclusion and at the hearing of the appeal Mr Christopher Purchas QC on behalf of Dunlop did not seek to persuade the court to set it aside.

Accordingly it is sufficient for present purposes briefly to put in context and then to set out the judge’s findings rather than narrate the evidence which led to them. By deliberate design two separate belts each made of 1x4 0.25 mm HO brass coated steel cords were incorporated into the tyre to support and reinforce the tread and contribute to efficient road holding and, by standards then current, a lengthy road life. It was a crucial requirement of the design that the steel cords should be penetrated by and encased with rubber. Historically this did not prove to be a straight forward process and as a result, over the years, the specification of the steel cord was altered by Dunlop in an endeavour to ameliorate the problem. The steel cords formed breaker belts within the tyre and the integrity of the breaker belt depended on a successful bond between the copper on the cord and the sulphur in the rubber. The various components of the tyre were assembled into a mould. Two features of the construction process were that the steel cords should be dry and clean and, self evidently, the rubber itself had to be of adequate quality. A further feature was that the steel cord should be inserted within the tyre at the correct tension. Dunlop, having obtained the steel cord and rubber from respectable suppliers, assumed responsibility for their proper storage and maintenance at the factory and arrangements for quality control during manufacture.

The judge accepted that the lower of the two steel cords in this particular tyre had been subjected to a latent manufacturing defect which took the form of “wholly inadequate rubber penetration of the cords of the first breaker, therefore an inadequate adhesion of the first breaker which in service became fatally weakened in a form which inevitably and in due course led to this failure”. The judge concluded that “this should have been prevented by the exercise by Dunlop of due care in the manufacture of the tyre”. Defects in the process by which proper adhesion was designed to be achieved were not discernible once the tyre had been made and left the factory but the date coding scheme on each tyre would have enabled its date of manufacture to be identified if and when this became necessary.

Mr Purchas argued that the judge did not identify the respects in which Dunlop had been negligent and the finding adverse to Dunlop was based on the impermissible reasoning process that the defect in the tyre having been established, the finding of negligence should inevitably follow. Notwithstanding that the judge had rejected Dunlop’s explanation for the tread strip (tyre misuse or abuse) it did not follow that negligence had been established and indeed no particular act of negligence had been identified. Mr Purchas drew attention to the possibility of defects in the steel cords or the rubber bought from reliable suppliers, and in a submission developed in his reply, to the further feature that the brass covering on the steel cords may have been inadequate to produce proper bonding.

Apart from passing references to the fact that the cords and rubber were supplied from outside none of the possibilities referred to by Mr Purchas in his submissions to this court were seriously advanced by Dunlop at the trial. The whole of their case on this issue was directed to persuading the judge to reject the evidence which suggested that there had been inadequate rubber penetration of the steel cords. This case failed.

Mr Purchas supported his argument that the judgment had proceeded on an impermissible process of reasoning by drawing attention to the observation of Lord Macmillan in Donoghue v Stevenson [1932] AC 562 at 622

“There is no presumption of negligence in such a case as the present, nor is there any justification for applying the maximum res ipsa loquitur. Negligence must be both averred and proved.”

To deal with this observation attention was drawn by counsel for the different parties to a large number of authorities. In my judgment however the relevant principles are clear. Taken out of context Lord Macmillan’s observation is liable to be misunderstood. In what was then perceived (and is still recognised) as a dramatic development of the tort of negligence Lord Macmillan was seeking to underline that his support for this development did not extend to the creation of a tort of strict liability. In a claim based on product liability negligence had to be proved by the plaintiff. Given that liability would not be established where there was “the reasonable possibility of intermediate examination” (in the phrase used by Lord Atkin when the principle was first enunciated) he was warning against any misapplication of res ipsa loquitur.

Res ipsa loquitur is not a principle of substantive law. These three words are used to encapsulate a common sense reasoning process which is no more or less profound for being expressed in Latin. In any given case either the thing, the facts, speak for themselves, or they do not. In English, if not the first, the most authoritative early pronouncement was made by Erle CJ in Scott v London and Saint Katherine Docks [1865] 3 H & C 596 at 601

“But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

Steyn LJ summarised the current approach in Bergin v David Wickes Television Limited [1994] PIQR 167 Res ipsa loquitur

“is simply a convenient label for a group of situations in which an unexplained accident is, as a matter of common sense, the basis for an inference of negligence.”

It is somewhat alarming that in response to the submission by Mr Purchas, and in accordance with modern practice, so many authorities were cited as an aid to understanding the application of common sense. Provided the principle is understood the citation of decisions where the court on particular facts decided that res ipsa loquitur did or did not apply, or expressed the same concept using different language, is not helpful. Indeed I very much doubt whether res ipsa loquitur is ever susceptible to refined argument and detailed analysis of authority.

Returning to Lord Macmillan’s observation, it was not suggested that the extension of the law of negligence to product liability changed any principle of evidence. He did not expressly or by implication suggest that this manifestation of the tort carried with it the requirement that the court should cease to exercise its common sense reasoning process. He himself approached the presence of the undetected snail in the bottle in Donoghue v Stevenson as prima facie evidence of negligence: hence the principle in Grant v Australian Knitting Mills [1936] AC 85 that “the appellant is not required to lay his finger on the exact person in all the chain who was responsible, or specify what he did wrong. Negligence is found as a matter of inference from the existence of the defect taken in connection with all the known circumstances” (per Lord Wright giving the advice of the Judicial Committee of the Privy Council of which Lord Macmillan was a member). Moreover in an appropriate product liability case the particular individual responsible for the defect in the product need not be identified nor indeed need the particular act of negligence be specified (a logical development of the principle in Grant, followed in Mason v Williams & Williams Limited [1955] 1 AER 808, with warm approval of Finnemore J’s judgment by Viscount Simonds in Davie v New Merton Board Mills Limited [1959] AC 604 where the notable good sense of the judgment as well as its soundness in law was highlighted by an approving reference to the absence of any lengthy citation of authority).

The concept of the duty of care and the problems associated with it have led the House of Lords on numerous occasions in the last decade to consider the proper ambit and development of the law of negligence. Ultimately however in the vast majority of cases, of which this is one, negligence remains a question of fact to be decided in the light of the available evidence.

In the present appeal res ipsa loquitur is not in point. This tyre burst many years after it had left the factory and had been regularly used. In such circumstances its failure might have resulted from any one of a number of possible causes, including, for example, misuse or abuse, or inadequate repair of earlier damage. However once it was established that the tyre disintegrated because of an identified fault in the course of its manufacture the judge had to decide whether this fault was the result of negligence at Dunlop’s factory. He did not have to identify any individual or group of employees or the acts or omissions which resulted in inadequate rubber penetration of the cords. If the manufacturing process had worked as intended this defect should not have been present.

Dealing with the point very generally Dunlop was not to be held liable in negligence for damage resulting from a defect which could not have been avoided or detected by reasonable precautions before the product left the factory, or where the problem was caused by a reputable supplier providing unsatisfactory materials which remained undetected by reasonable quality control within the factory. Any such evidence, if it existed, was peculiarly within the knowledge and control of the manufacturer. None of the other parties could possibly have produced evidence about conditions in Dunlop’s factory at the date when the tyre was manufactured, that is in 1981. Nothing asserted in the pleadings alerted them to the possibility that criticisms of the suppliers might be relevant, nor did discovery reveal the names of the suppliers of cord and rubber.

The evidence of Dunlop’s expert witness, Mr Newland, was summarised in terms by the judge as a concession that the tread strip “had to be due to manufacturing defect with deficiency of bonding or bonding strength unless there was in service such stresses imposed as to break the bond”. It was not suggested that this summary does not fairly reflect Mr Newland’s evidence and, having read it, together with his report, it is plain that he believed that if his own theory for the tread strip (misuse or abuse) were rejected then the only alternative explanation was a failure in the bonding process for which Dunlop alone were responsible. Mr Paine, not an expert witness but the only witness of fact called by Dunlop, and in effect their claims assessor, agreed that it was known by no later than 1981 that the steel cord was “known to create difficulties in achieving a good level of penetration” by the rubber, and that in the lower breaker of this particular tyre, although there was evidence of some penetration it was “not significant”. Apart from tyre misuse Mr Paine advanced one tentative speculative explanation. His theory of moisture penetration of the cords was demolished in cross examination, and decisively rejected by the judge as “nonsense”. Within the context of the express and wholly justified finding that Mr Paine personally was “seeking at all costs to find some explanation for a tread strip” which excluded any manufacturing defect, this meant that no alternative viable theory was available.

In his final written submission Mr Purchas invited the judge to conclude that “there is no evidence of any of the following specific defects..... (a) oil, dirt or other contamination: (b) inadequate brass covering on the cords; (c) any lack of proper constituents for the rubber compound”.

Factually this argument was sustained. On proper analysis of a huge volume of evidence there was no evidence of contamination or inappropriate moisture on the steel cords, or that the rubber was less than satisfactory when received from the suppliers by Dunlop. Equally there was none to suggest deficiency in the brass coating of the cords. No document or any other evidence of complaint to the suppliers was produced. No-one involved in the production of the tyres, with responsibilities on the “factory floor” suggested any relevant difficulties with the cords or rubber when received at the factory, or in the manufacturing process itself, or problems with quality control which meant that any defects with the cords or rubber might reasonably have escaped Dunlop’s attention. None of the witnesses called by Dunlop advanced any such considerations as providing possible grounds exculpating them from liability.

In these circumstances although counsel helpfully drew attention to passages in the evidence which would have defeated any contention by Dunlop that their suppliers were responsible for the problems which eventually resulted in the tread strip, it is unnecessary to analyse this material any further.

In the result there was no evidence on which Dunlop could base an argument that the proved manufacturing defect in the tyre might not have been due to their negligence. Theoretical possibilities may have abounded. However the judge could not be expected to hunt through the evidence seeking for an explanation exculpating the manufacturer which the manufacturer had not elected to advance for himself, or be subjected to criticism for failing to find it. In the end he had to make a finding of fact based on the evidence actually available to him.

The judge concluded that the tyre left Dunlop’s factory with a specific but hidden and potentially lethal defect caused in the process of manufacture. Something had gone wrong with the process for which the manufacturer could not apparently provide any explanation. Ignoring speculative considerations (as was required of him) and focusing exclusively on the evidence, he had then to decide whether on the balance of probabilities negligence had been established against Dunlop. This is what he did. There was ample evidence to support his conclusion with which, on the evidence, I agree.

That is sufficient to dispose of Dunlop’s appeal that they should not have been found liable. Accordingly I shall deal briefly with the alternative basis on which liability was also found against them.

The steel cords incorporated into the defective tyre were changed from HO cord to a new Gonfio cord on 12th June 1981, that is within the week after the defective tyre was manufactured. It was believed that rubber penetration would be improved, confirming the observation made earlier in this judgment that the problem of rubber penetration of the cords was already long standing.

Unlike the production reports for February and July 1981 the production report from the Washington factory for June 1981 was never produced. In other words the record for the last week when the use of the HO steel cord was discontinued and the new Gonfio cord was introduced - the crucial period in relation to the defective tyre in this case - is not available.

The absence of this report may not of itself be of huge significance. It was however symptomatic of a recurring fault in this litigation. It underlined that throughout the approach of Dunlop to discovery was lamentable and was consistent with overwhelming evidence to suggest that Dunlop’s reaction if and when a defect in the manufacture of their tyres emerged was that it should, for commercial reasons, be concealed.

The judge found that “by 1986 Dunlop had quite sufficient knowledge of the risk, and a substantial risk, of this weakness being present in tyres produced in May and June of 1981 to be seriously concerned about the risks of such tyres being on vehicles on a motorway. ... Far from withholding information from the Department of Transport it was Dunlop’s clear duty to disclose to them all that they knew on the topic in order that they might exercise an independent judgment on the question on whether these tyres should be allowed to remain on motor cars or be used on motorways”.

In this context the weakness referred to in the judgment was inadequate penetration of the cords by rubber.

These findings are criticised by Mr Purchas. He submitted that the judge was not entitled to attach the weight he did to specific features of the evidence identified in his judgment, namely the rate of concessionable returns during 1985 and 1986 of tyres manufactured in May/June 1981 and Mr Paine’s knowledge, through claims, of problems with tyres manufactured at Washington.

A very brief summary of the crucial areas of evidence will demonstrate why this submission should be rejected.

The difficulties of achieving appropriate penetration of the cord with the rubber was known to Dunlop by no later than 1981. This was the purpose of introducing the new Gonfio cord which ultimately failed to come up to expectation, and was itself eventually replaced in 1985 with a 2+2 cord.

The car tyre development report dated 8th August 1984 drew attention to the inadequacies of x ray examination during manufacture as a reliable method of showing up poor adhesion. “It is quite clear that the x ray does not show the true extent of the damage of the cords”. This confirmed what had already been known “previously” that is, before August 1984. This report also shows that tyres manufactured before the established use of 2+2 cords manifested inadequate rubber penetration, information confirmed by a further report in April 1985 underlining the belief that the 2+2 cord provided better rubber penetration. There is nothing to suggest that the failure to arrange for an earlier withdrawal of the HO cord was negligent. However it is clear that Dunlop should have appreciated that any tyre manufactured at Washington in the first week of June 1981 was susceptible to the risk of inadequate rubber penetration. In my view this is a significant continuing feature of the evidence.

Concessionable service returns for tread separation problems during 1985 and 1986 for tyres manufactured in May/June 1981 at Washington ran at a level which demanded investigation. Dunlop suggested that the figures should be considered in the context of some inaccurate diagnosis made in the United States of America to enable advantage to be taken of a discount scheme operated. There was meticulous analysis of all this material by counsel. It would not however be right to consider it in isolation. It was linked with the known problems concerning rubber penetration prior to the introduction of the Gonfio cord and the four year return figures, during 1985, for “A“ fails which were then running at 1.59% for the whole of 1981, a statistic accepted by Mr Paine himself as requiring investigation. Indeed his conclusion was reinforced by his own personal conviction that any five year old tyre should be treated as suspect, an opinion which the judge rejected, but to which Mr Paine adhered, as he was entitled, and which he elected not to ventilate when the Vehicle Inspectorate made enquiries during late 1986. Taken together with the other linked material the concessionable service returns, even if aggravated by factors peculiar to the market in the United States, to which only 10% of the Washington manufactured tyres were exported, could not simply be brushed aside or ignored.

Claims were made against Dunlop for defective tyres. This aspect of the evidence could not be fully understood without proper insight into the meaning Dunlop attached to the words “the tyre has failed due to a defect which developed in service”. This did not mean what it said. It actually meant “that the individual tyre concerned was not manufactured to the correct standards of workmanship, or of materials, but the defect was not apparent at the time of manufacture and inspection..... (nor) when the tyre began its service life, but the defect developed and became apparent during the service life of the tyre”. Once this internal dictionary meaning was understood some of the earlier claims brought to Dunlop’s attention assumed considerable significance. For example Van Nieuwerburg suffered a sudden loss of tread when travelling at 120 km/h on the motorway in 1985. When the tyre was examined only “traces of compound remain adhering to the second breaker indicating lack of adhesion between the breaker layers”. This would have been an “A” failure. The examiner was instructed that the report should end with the opinion that “the tyre has failed due to a defect which developed in service”.

Another feature which did not emerge until the trial was that Mr Paine had maintained his own longhand list of claims alleged to have arisen from tyre problems. One of particular concern to the Vehicle Inspectorate was claim No 133 on this personal list which had started in 1985. A double fatality occurred on 28th June 1986. The problem seemed linked to a tyre - 155 SR 13 - made in Washington in April 1980. Two members of the Bugden family were killed. A subsequent triple fatality, also involving a 155 SR 13 tyre, afflicted the Harris family just a few days before the tread strip with which this appeal is concerned. This was claim No 266 on the list. Again there was a great deal of analysis of the numbering and significance of individual cases on the list. Mr Purchas suggested that there were no more than 25 cases of any possible relevance. The argument to the contrary underlined that this list did not even begin until 1985 and no one had been called to assist the court with events before then. More significance however attaches to the correspondence with the Vehicle Inspectorate which should have been profoundly embarrassing to Dunlop. Mr John Crowley QC suggested that the correspondence in relation to the two fatal accidents demonstrated a cover-up. There was a single crucial question which Dunlop would not answer either in late 1986 or during 1988 and 1989 when the Inspectorate was, rightly, investigating them. The question was simple enough. Dunlop was asked to disclose the “number of similar reports of which you are aware”. No answer was given because, as Mr Paine acknowledged, an accurate answer would have led the Ministry to come down on Dunlop “like a ton of bricks”. Senior management was informed of the problem by Mr Paine and he suggested that the decision not to answer the simple question directly was taken at a higher level. It was plainly hoped that the incomplete information would satisfy the Inspectorate and thus avoid the problems connected with a request for a recall of tyres.

The judge summarised the answers by Mr Paine in cross examination as an admission “that he regarded the stance of management as being one which in effect required him to cover up what was contained in his schedules..... He did not like it...... Having referred to senior management he responded accordingly”. Eventually, forced into disclosure of nine cases of tread strip, his response ignored “scores of others which had featured” in his manuscript list. The judge went on to record that he could find no evidence that “management at Dunlop ever paused to consider the contents of Mr Paine’s reports or the significance of the tread strips which were occurring in the most dangerous circumstances”. He made a similar finding in relation to the question whether Dunlop ever considered the significance of the concessionable returns of their tyres.

These issues were covered at great length before the trial judge, and indeed on appeal. The judge held that Dunlop failed to take “appropriate action to bring the matter to the attention if not of the owner, to the authorities concerned with road safety”. They had failed to protect the public. This constituted a breach of duty.

There was ample evidence to justify his findings. No basis for interfering with them has been shown.

Mr Purchas nevertheless submitted that even if the findings were upheld the problem of causation remained. In essence he submitted that there was no evidence from which the judge could reasonably conclude that properly notified accurate information from Dunlop to the Department in 1986 would have led to removal of the rear nearside tyre on Mr Bent’s car before the tread strip took place.

No express finding to this effect was made. It has been treated as implicit, both from the language of the judgment and from an observation mid way through it that the Department “would have been in a position to take action on the occasion of MOT tests of cars to see that tyres affected, or thought to be affected by the defect could be condemned”.

The judge does not appear even indirectly to have made any finding that Dunlop should have put in hand arrangements to issue general warnings to the public, specific warnings to garages, in particular those carrying out MOT tests, or to recall the tyres manufactured in Washington in May/June 1981, or to take any direct action unilaterally beyond informing the Department of the problem. If they had done so no doubt Dunlop would have been expected to abide by instructions from the Department and to issue warnings or instigate a recall if required, and to implement the then current code of practice “on action concerning the recall of tyres wheels and valves”.

On this issue three important sources of evidence were not explored. Neither Department of Transport, or their Vehicle Inspectorate, was called to give evidence of their probable response to disclosure by Dunlop of the crucial facts. No garage offering MOT services, and in particular the garage the MOT test on Mr Bent’s car in May 1988 was called to explain how it would have implemented any advice or directives whether from the Department or from Dunlop. Thirdly, and perhaps most important of all, Mr Bent himself was not invited to give evidence to the court about his likely reaction to the suggestion that there was a risk - but not a certainty - that the tyre on his car was subject to a latent defect. In this context his evidence would have been closely scrutinised, if only because he had shown a significant lack of enthusiasm for the proper maintenance of his car and indeed had, prior to the test in May 1988, been driving it on two condemned tyres. Much would no doubt have depended on the precise basis of any warning or advice but the concerns expressed by the judge about Mr Bent’s general credibility as a witness would have added to the pervading uncertainty.

On any view these were significant gaps in the evidence on causation.

The essential feature of the argument was that it was reasonable to assume that faced with accurate information from Dunlop the Department would have handled the matter responsibly. Taking that as read it fails to provide the answer to what would have been done in practice, and the Department’s powers to enforce its requirements. It was suggested that arrangements would have been made for a safety warning similar to that issued following a problem which emerged in late 1992. This however does not deal with the problem of how Mr Bent would have acted if such a notice had ever been drawn to his attention.

Time was spent considering the precise nature of the powers of the Secretary of State. These included the possibility of issuing a warning notice under section 3(1)(c) of the Consumer Safety Act 1978. It was not known whether such a notice would have been issued in circumstances such as these. Regulation 27 of the Road Vehicles (Construction & Use) Regulations as well as Regulation 9 of the Motor Vehicles (Tests)(Amendment) No 2 Regulations 1983 were cited. There is an obvious problem with the enforcement in advance of either of these Regulations where, as here, there is no apparent sign of defect. Finally as part of the general submission attention was drawn to a number of decided cases about warnings and causation in circumstances where a warning should be issued. These included Walton v British Leyland UK Limited [July 12, 1980] Product Liability International for August 1980 156, McWilliams v Sir William Arrol & Co Limited [1962] 1 WLR 295, E Hobbs (Farms) Limited v The Baxenden Chemical Co Limited [1992] 1 Lloyds Reports 54, Dow Corning Corporation v Hollis 129 DLR 609, Nicholson v John Deere 34 DLR (4th) 542, Buchan v Ortho Pharmaceutical (Canada) Limited 25 DLR (4th) 658.

Without disrespect to the argument none of these cases serves to answer the question of fact which arises in this particular case, namely whether if Dunlop had provided accurate information to the Department the tyre would or would not have been removed from Mr Bent’s car before the accident. In the circumstances it is hardly surprising that the judge expressed his findings in the extremely limited way that he did.

Assuming that it is correct to imply from his judgment that he inferred that causation had been established following this breach of duty, given all the imponderables which were not addressed by the evidence advanced to establish liability against Dunlop, I should have been inclined to agree with Mr Purchas that causation had not been established, and to set aside the finding that it had. I should however emphasise that that conclusion should not be taken as guidance in another case where there may be more evidence on the issue. In any event however none of these considerations have any bearing on the outcome of this appeal.

In the absence of evidence from which to conclude that there had been a pre accident warning vibration, the judge found that the tread strip came suddenly and unexpectedly upon Fearon. Its effect on the car was immediate and the driver’s loss of control immediate and catastrophic. The car spun round through 360 degrees before crossing the central reservation into the path of Mr Carroll’s oncoming car. Fearon’s inability to control the car was not susceptible to criticism, and Bent, sitting beside him, could not possibly have provided any valuable assistance.

Normally, and without asserting any principle of law, in such circumstances it would be unfair to blame either the driver or the owner of the car. Nevertheless in this particular case the judge apportioned 20 % of the blame for the accident to Fearon and Bent. His criticisms can be summarised briefly.

The car was not fully loaded but, with a near full load of passengers, it was heavily laden. For a normal load the tyre pressures should have been 26 lbs per square inch. Fully loaded the pressures should have been increased to 36 lbs per square inch. The judge concluded that “some pressure round about 30 lbs per square inch” would have been appropriate. There was no evidence from which he could fix the precise pressures so this figure represented a broad estimate.

Mr Bent had not checked the tyres before starting the journey. Indeed he had not checked them since the MOT test some six weeks or so earlier. Neither he nor Mr Fearon checked the tyres themselves, and if they had, nothing relevant would have appeared.

Mr Fearon was driving in excess of the motorway speed limit. He caught up with and overtook a car driven by Mr Adby at a speed estimated at 75-80 mph, gradually gaining on a small Peugeot driven by Mrs Riva who was also in the outside lane, overtaking a group of vehicles in the middle lane. To do so she accelerated up to about 85 mph. After completing her overtaking manoeuvre she pulled into the middle lane. Fearon had remained close behind her and then overtook. In cross examination it was put to her

“A previous witness has given an estimate of this driver’s speed of being about 75 miles an hour up to a maximum of 80 miles an hour, would you wish to quarrel with that?”

She responded

“I would say it was probably nearer 80 than 75”.

The judge was very impressed with her evidence, and he knew from the whole of her evidence (rather than a single question and answer) the general level of speed which she, the witness, was trying to convey to him. The evidence also included statements by Mr Bent himself and Astrid Barclay which he found unreliable. Taking the matter overall he concluded that he should infer that Mr Fearon “had been driving and was intending to drive between 85 and 90 miles per hour”.

This conclusion has been subjected to a detailed analysis and criticism. The contention is that the speed should have been found to have been somewhat lower. This was a straightforward question of fact to be decided by the trial judge. It would, in my judgment, be wholly inappropriate to interfere with it.

The judge went on to add that

“such speed is commonplace on a motorway and cannot be condemned as necessarily negligent. Nevertheless, it is an old high mileage car, ..... It seems to me that that is not a vehicle which should be driven at such speeds by a responsible driver”.

Again, his approach is not susceptible to realistic criticism but perhaps it should be added that of itself the speed should have had no adverse effect on a tyre manufactured without the latent defect which was present inside this tyre.

After the accident there was no relevant air pressure in the tyre. However when the front and rear offside tyres were checked for air pressure the results were 23 lbs and 22 lbs per square inch respectively. The judge concluded that this gave him an indication that all the tyres on the vehicle, including the rear nearside tyre, had been inflated at about this pressure before the accident, and accordingly a pound or two lower than the pressures appropriate for normal running, and seven or eight pounds or so lower than the approximate range of pressure appropriate for this journey, that is about 30 lbs per square inch.

The judge concluded that the high speed at which the car was driven by Fearon, combined with the reduced pressure in the rear nearside tyre, had triggered off the tread strip. Accordingly, although far less blameworthy than Dunlop, he attributed some responsibility for the accident to Fearon and Bent.

In my judgment criticism of this conclusion is well founded. In Fearon’s case this particular accident could not be attributed to the only relevant fault found against him, namely excessive speed. Bent’s responsibility, if any, depended on whether any relevant blame attached to him for permitting the car to be on the road with a rear nearside tyre in a significantly under-inflated condition. The overwhelming effect of the evidence was that the air pressure found in the offside tyres after the accident should be disregarded as any indication of the pressures before the accident. The judge appeared to accept that this was indeed the effect of the evidence when he observed “it is common knowledge, and plainly proved, that after a car has spun and been involved in a serious collision a tubeless tyre may well lose pressure if the beading is dislodged from the wheel”. However this did not quite fully summarise the effect of the evidence. The witnesses called by Dunlop, who could reasonably be expected not to underestimate the culpability of Fearon and Bent, suggested that to draw any conclusions from the pressures found in tyres after an incident such as this one would involve using “unreliable” information (Newland) and that any such assessment would not be “fair and reasonable” (Paine).

Even if the judge were entitled to limit his conclusion in the way that he did, the second difficulty with it is that he appears to have misunderstood the effect of the experts’ evidence about driving with under-inflated tyres. He noted that Mr Manderson indicated that one factor in this disaster was the use of the tyre for long periods in a relatively under-inflated condition. This consideration depended not on Mr Manderson considering a reduced pressure of 22/23 lbs as against 30 lbs per square inch, but a much more significant reduction in pressure to 50% of the appropriate level. In fact there was no evidence to suggest that even if the tyre had been running at 23 lbs per square inch this would have had any significant impact on a properly manufactured tyre driven at the speed found by the judge, nor that Mr Bent himself had persistently driven the tyre in a significantly under-inflated condition for the 4000 or so miles it had travelled while in his ownership.

Accordingly, in my judgment, the judge’s conclusion that Fearon and Bent had made a blameworthy contribution to the tread strip was not supported by the evidence.

Again, several authorities were cited in the course of the argument on this part of the appeal. Equally, and again without disrespect to counsel, this is not a case which requires any analysis whatever of authority. Although differing with caution from the findings arrived at by the judge I have been driven to the conclusion that this tyre, with a latent defect hidden both from the owner of the car and his driver, was the single effective cause of this disaster.

For these reasons I have concluded that Dunlop alone should be held responsible. Accordingly the appeal by Dunlop should be dismissed. The appeal by both Fearon and Bent should be allowed. Counsel will draw up the consequential orders to dispose of the litigation.

THE RT HON LORD JUSTICE AULD:

1 agree

THE RT HON LORD JUSTICE NOURSE:

I also agree

Order: appeal by Dunlop dismissed; appeal by both Mr Fearon and Mr Bent allowed; counsel to lodge an agreed minute of consequential orders.