The Technology & Construction Court's decision in Hufford v. Samsung Electronics (UK) Ltd was handed down in September 2014 to little or no fanfare. However, it appears to confirm the approach to be adopted in determining the precision with which a claimant relying on the Consumer Protection Act 1987 must prove the nature of a defect in a product alleged to have caused damage.
Ide and Hufford clearly reflect a rebalancing of the law in favour of injured claimants and defendant producers/suppliers and their lawyers should beware any (mis)placed reliance on the pre-Ide authorities.
The judgment sets out a seven-stage process for what must be proven and indicates that the Court of Appeal ruling in Ide v. ATB Sales & Lexus Financial Services v. Russell [2008] is accepted as clarifying this area of the law.
The central issue in Hufford was whether the appliance was defective within the meaning of section 3 of CPA 1987, which provides that:
"...there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect..."
The CPA 1987 (implementing the 1985 Product Liability Directive) does not detail the precision with which a claimant must prove the nature of the defect relied upon. Article 4 of the Directive is similarly vague: "The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage". While the burden of proof rests with the claimant, the Directive unhelpfully gives no guidance on the standard of proof that the claimant must meet.
However, the pre-Ide cases, including Richardson v. LRC Products [2000] (concerning a burst condom) and Foster v. Biosil (2000) (concerning a ruptured breast implant), suggested that a claim must fail if a claimant cannot show the precise nature of the defect relied upon (in both cases it was found that the failures could have resulted from alternative causes rather than the specifically alleged defect). Both Richardson and Foster had long been criticised for introducing or requiring a level of evidential enquiry more typically expected in a negligence claim than a strict liability regime. That was clearly to the benefit of defendant producers and suppliers.
The approach was revisited in Ide where the Court of Appeal had to consider the proper approach to be taken in determining proof of causation under the common law where alternative mechanisms of causation were put before the court. While the primary concern was not the CPA 1987, Thomas LJ held that it was unnecessary in a claim under the Act to ascertain the precise cause of a defect at all but simply to determine whether the loss was caused by the defect and not by another cause.
The issue was again considered in Hufford, which involved a claim under the CPA 1987 for damage caused to property when a fridge-freezer caught fire. The TCC determined there were seven points that must be considered in deciding what matters have to be proved, by whom, and how:
- The court must ask whether the case is a "closed
list" as regards the cause of damage. It was in Hufford
since only two causes of fire were contended:
- The claimant's case was that the fridge-freezer 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 could not say exactly how the fire had begun, but asserted that it originated inside the appliance, in the rear machinery compartment.
- The defendant contended 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 had failed to do so.
- The court must have regard to all the circumstances of, and the evidence adduced in, the case (Milton Keynes BC v. Nulty [2013])
- Following Ide, a claimant does not have to specify or identify with accuracy or precision the defect in the product he seeks to establish, and therefore prove. It is sufficient 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)" (as was the case in Ide).
- The court should not examine rival arguments on causation, and simply find that the one it prefers (whether because it is the more probable or the least improbable) has been proved on the balance of probabilities to be the cause of the subject incident or peril (Milton Keynes BC v. Nulty).
- The burden of proof remains on the claimant throughout. It is for the claimant to prove the existence of a defect (albeit unspecified), in the product, and that such unspecified defect caused the subject incident or peril.
- There is no burden of proof on the defendant. The defendant may raise, or seek to prove, an alternative cause, but he does not have to prove that it was the cause of the subject incident or peril. The ultimate question remains whether the claimant has proved, on the balance of probabilities, that the cause for which he contends was the cause of the subject incident or peril.
- While the court's analysis will involve consideration of causation, namely that the defect identified and proved by the claimant was indeed the cause of the subject incident or peril, and thus of the loss which was sustained, the court is not required to embark upon a detailed analysis of precisely how the subject incident or peril was caused (Ide v. ATB Sales).
Ide and Hufford clearly reflect a rebalancing of the law in favour of injured claimants and defendant producers/suppliers and their lawyers should beware any (mis)placed reliance on the pre-Ide authorities. While Ide confined itself to asserting that a claimant need not show the cause of a defect in order to succeed in a CPA 1987 claim, Hufford goes further in clarifying that it is not necessary for a claimant to establish the identity of the defect with any degree of precision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
