Palmer v Palmer, the estate of & Ors

Under the Consumer Protection Act 1987, a product is defective where its safety is less than persons generally are entitled to expect, having regard to all relevant circumstances, including its design, instructions and foreseeable use. A product may be defective because its design or instructions create a tendency for users to misuse it and thereby compromise an essential safety feature. The absence of previous injury claims does not establish that a product is safe, particularly where adequate testing has not been undertaken. Where expert evidence shows that a product-induced defect probably caused the claimant’s injuries, causation may be established despite competing speculative explanations.

The claimant suffered severe brain injuries in a road accident while travelling as a front-seat passenger in a car driven by her father. An inertia-reel seatbelt was fitted with a Klunk Klip, an after-market device designed to introduce slack and improve comfort. Liability for the accident was conceded by the deceased driver’s estate, and the Motor Insurers’ Bureau required proceedings against the product manufacturer.

The trial was confined to liability issues concerning whether the Klunk Klip was defective under the Consumer Protection Act 1987, whether the manufacturer was negligent, and whether the device caused the claimant’s injuries. The separate issue concerning the alleged fault of the claimant’s mother was resolved before trial.

1. Defect. The Klunk Klip converted an inertia-reel seatbelt into a static belt while engaged. Its purpose was to introduce slack, and its design and incomplete instructions made it liable to induce some users to introduce excessive slack. The instructions failed to tell users to disengage the device before fastening the belt and gave no meaningful indication of what amounted to excessive slack.
2. The manufacturer had not adequately tested either the product’s performance in collisions or the accessibility and efficacy of its instructions. Informal testing and a limited report did not address foreseeable misuse. The product therefore failed to provide the safety persons generally were entitled to expect under sections 3(1) and 3(2) of the Consumer Protection Act 1987.
3. The court rejected the submission that the absence of previous claims or known injuries demonstrated safety. The lack of reported incidents had several possible explanations, and the product had not been properly tested in conditions of foreseeable use.
4. Causation. The claimant’s head could not have reached the fascia in the observed manner unless the seatbelt’s protective operation had been severely compromised. The court preferred the evidence of Professor Mackay and Dr Searle, whose expertise was materially greater than that of Mr Cowan. The most likely explanation was that excessive slack had been present throughout the journey and had been inadvertently introduced or concealed when the claimant’s mother fastened the belt.
5. The alternative theory that the claimant herself extended the belt during the emergency was implausible and required substantial speculation. The excessive slack was attributable to the Klunk Klip, not to fault by the claimant’s mother.
6. Liability was established against the third defendant both under the Act and for breach of the common-law duty of care. The judgment determined liability only; outstanding matters, including the form of order and costs, were left for agreement or further consideration.

Not an appeal. The judgment was a first-instance determination of liability. The judgment itself states that outstanding matters concerning the form of order and costs were to be agreed or dealt with at the handing-down hearing.