Alerter
Product Liability
9 January 2015
Proof of defect under the CPA 1987:
Hufford v Samsung Electronics
By Matthew Bradley
Broad brush or a pin point?
1.
To what extent must a claimant relying on the Consumer Protection Act 1987
(“the Act”) prove with precision the nature of a defect in a product said to have
caused him or her damage?
2.
That important question, seldom addressed by the authorities under the Act,
was central to the decision in Hufford v Samsung Electronics (UK) Ltd 1, handed down in
the latter part of last year. Whilst having received little by way of fanfare, it is a
decision of some note for product liability lawyers, if only in signalling that the decision
of the Court of Appeal in the joint appeals in Ide v ATB Sales Ltd; Lexus Financial Services
(t/a Toyota Financial Services (UK) plc) v Russell 2 appears to have cleared this area of the
law up for good.
The status quo
3.
Section 3 of the Act provides that a product is defective if its safety is not such
as persons generally are entitled to expect. That does not assist in clarifying the extent
to which a claimant must prove, with specificity, the nature of a defect relied upon.
1
2
[2014] EWHC 2956 (TCC)
[2008] EWCA Civ 424
© 2015, by Matthew Bradley
Product Liability Alerter
By Matthew Bradley
4.
Some guidance is afforded by article 4 of the Product Liability Directive 3, which
provides that: 'The injured person should be required to prove the damage, the defect and the
causal relationship between defect and damage'. So the burden of proof falls as it usually
would. However, unanswered questions remained.
5.
Did the requirement to show a causal relationship between defect and damage
entail that a claim must fail if a claimant cannot show the precise nature of the defect
relied upon? Early cases under the Act certainly favoured such a conclusion. In
Richardson v LRC Products Ltd 4, a case concerning a fractured condom, Kennedy J held
that the mere existence of a fracture was, without more, not probative of a defect.
That finding was heavily dependent on the evidence that condoms do, albeit rarely,
regularly fail in use. “Persons generally” do not expect condoms never to fail.
6.
Perhaps somewhat overlooking that aspect of the decision, Cherie Booth QC,
sitting as a Recorder in the County Court case of Foster v Biosil 5 took matters a little
further. She held herself bound by Richardson to hold that a claimant in a claim relating
to allegedly defective breast implants must show precisely what the defect was.
7.
No negligence was asserted against the surgeon and the implants in question had
both ruptured within seven months of their implantation: fairly strong circumstantial
factors redolent of a defect, one might think, but the claim failed. Both the fact of the
defect and its cause were matters which had to be proven. The requirements of section
3 of the Act were not satisfied merely because a claimant could show that a product had
failed in a way which was unsafe and which was contrary to what persons generally are
entitled to expect. Mrs Foster was unable to satisfy the court on the balance of
probabilities as to the mechanism of failure, and she lost.
8.
The decision in Foster v Biosil has long been subjected to criticism. Both it and its
interpretation of Richardson import into a supposedly strict liability regime the same
evidential enquiry as one expects in a negligence claim. Good for defendants; not so
good for claimants.
Ide v ATB Sales Ltd
3
85/374/EEC of 25 July 1985
[2000] Lloyd's Rep Med 280
5
(2000) 59 BMLR 178
4
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Product Liability Alerter
By Matthew Bradley
9.
In the joint appeals in Ide the Court of Appeal primarily
approach a judge should take to the determination of proof
alternative mechanisms of causation were put before the court.
was therefore not the Act, but the proper approach to proving
general common law.
had to consider the
of causation where
Its primary concern
causation under the
10.
However, in the course of Thomas LJ’s judgment, he held 6 that it was
unnecessary in a claim under the Act to ascertain the cause of a defect at all: whilst the
court’s process of reasoning may involve an explanation of how the defect was caused,
this was not essential to its task under the Act, which is simply to determine whether
the loss was caused by the defect and not by another cause. He concluded: “that
distinction is important and can make the task of the court a simpler one, as no doubt
Parliament intended.”
11.
So, you do not have to show the precise cause of a defect. But that still leaves
open the question of whether you have to show the precise way in which a defect
manifests itself so as to trace causation from the defect to the damage? That distinction
was not explicitly addressed in Ide.
12.
6
It may be, however, because it is one without a difference.
At 7 and 19
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Product Liability Alerter
By Matthew Bradley
Hufford v Samsung Electronics
13.
That seems to have been the conclusion in Hufford. A fridge caught fire and
caused damage. The claimant’s case was that it caught fire in its normal use, such that it
was "not such as persons generally are entitled to expect" and there was a defect. The
claimant understandably could not say exactly how the fire had begun, but asserted that
it originated inside the appliance, in the machinery compartment at the rear.
14.
The defendant said that the fire originated outside the appliance, in some
combustible material, but that in any event the claimant had to prove with a reasonable
degree of specificity the respect in which the product was defective, and he had failed to
do so.
15.
The judgment makes no mention of any party relying on either of the decisions
in Richardson or Foster. HHJ Grant’s reasoning was based squarely on Ide in holding
that:
“in relation to a claim under the 1987 Act, a claimant does not have to specify or
identify with accuracy or precision the defect in the product he seeks to establish, and
thus prove. It is enough for a claimant to prove the existence of a defect in broad or
general terms, such as "a defect in the electrics of the Lexus (motor car)"
16.
This aspect of the decision is perhaps most notable for a force of expression not
found in Thomas LJ’s judgment in Ide. But it also goes somewhat further than Ide, which
confines itself to asserting that a claimant need not show the cause of a defect in order
to succeed in a claim under the Act. Per Hufford, you do not even need to show with
precision what the defect itself is or was. There will be limits to how far that sentiment
can be stretched, but as a matter of logic it is probably the inevitable corollary of the
Court of Appeal’s decision in Ide. Defendant product liability lawyers should be wary of
(mis)placing reliance on some of the older authorities on this point.
Matthew Bradley
© 2015 by Matthew Bradley
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