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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Divya & Ors v Toyo Tire and Rubber Co. Ltd (t/a Toyo Tires of Japan) & Anor  EWHC 1993 (QB) (27 July 2011)
Cite as:  EWHC 1993 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) Ms JOSHI DIVYA
(2) Ms MONIKA MADAN
(3) Mr DHARMENDRA JOSHI
(4) Ms RAKSHA SANGANEE
(5) Mr SIVANANTHARAJAH KANDRIAH
|- and -
|(1) TOYO TIRE AND RUBBER CO. LTD
(t/a TOYO TIRES OF JAPAN)
(2) Mr KATHIRGAMATHAN PARANIRUPASINGHAM
Mr P. Shepherd QC (instructed by Fox Hartley) for the First Defendant
Mr. R. Walker QC &Miss F. Newbury (instructed by Greenwoods) for the Second Defendant
Hearing dates: 28-30 June, July 1, 4 and 7.
Crown Copyright ©
Mr Justice Mackay:
The impact theory
The Expert Evidence
i) The remaining tread on the tyre was consistent with "normal rear axle use" and there was no evidence of any creasing of the side wall flexing zones and no evidence of use of the tyre in a deflated or significantly under inflated condition.
ii) In the area of failure the steel crown plies were devoid of rubber and there was no evidence of rubber penetration into and around the filament structure of the cords.
iii) The extent of the brass coating remaining visible on these cords together with the complete absence of rubber indicated a failure to secure a bond between the cords and the rubber during manufacture.
"The investigator, seeing areas of bright shiny brass gleaming at him from the belt area of the failed tyre, will have no difficulty in deciding that there was a deficiency in the bonding process".
Mr Newland believes that some brass remaining visible is not conclusive evidence of a failure to secure a bond. He was also aware of Vanooij's views on the absence of rubber penetration. But he thought with this tyre that the brass covering was very extensive and there was also a complete absence of any rubber penetration into the centre area of the filaments making up the cords in the areas of maximum looseness. His conclusion was that there had been partial bonding, that is to say there would have been initially some adhesion of rubber to cord but without full rubber penetration allowing the tyre to complete approximately one third of its life before separation and failure.
The Absence of Other Complaints
Other possible causes
Was the Defect Caused by the Negligence of the First Defendant?
"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  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'….. 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…"
Judge LJ continued at 422:-
"In the present appeal res ipsa loquitur is not in point. This tyre burst many years after it left the factory and had been regularly used. In such circumstances 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 group of employees or the acts or omissions which resulted in inadequate penetration of the cords. If the manufacturing process had worked as intended this defect would not have been present". [Emphasis added]