Busby v Berkshire Bed Company Litd

A product may be defective under the Consumer Protection Act 1987 only if its safety falls below the level persons generally are entitled to expect, assessed objectively and in all the circumstances. The test is not absolute safety or automatic liability whenever injury follows. Likely use and reasonably foreseeable misuse may be relevant, as may the ease of eliminating or mitigating a risk.

Causation must still be proved. A defect which did not cause or materially contribute to the injury cannot establish liability. In contract and negligence, damage must also satisfy the applicable remoteness test. Where the same practical test applies, loss is recoverable only if the relevant kind of damage was reasonably foreseeable.

The claimant suffered tetraplegia after falling from a double divan bed supplied and assembled by the defendant. She alleged that two gliders were missing from one base, creating a difference in level, and relied on the Consumer Protection Act 1987, contractual duties under the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982, and negligence.

The defendant disputed that the gliders were missing when its employees left and denied causation. The court determined the factual issues concerning assembly, the condition of the bed and the mechanism of the fall, followed by the statutory, contractual and tortious liability issues.

1. Liability and disposition. The claim was dismissed. The court found that two gliders were missing from the left-hand divan when the defendant’s employees left, but that the absence of the gliders did not cause or materially contribute to the fall.
2. Fact-finding. On the balance of probabilities, the court had to decide whether the claimant’s explanation was stronger than the competing explanation, considering the totality of the evidence, including evidential gaps. Conflicts in witness evidence should be analysed by component parts; an error in one element does not automatically make the whole account unreliable. It is unnecessary, and sometimes improper, to force every piece of evidence into a complete factual reconstruction. The approach in Rhesa Shipping Co SA v Edmunds (The Popi (M) [1985] 1 W.L.R. 948 was noted.
3. Causation. The claimant was kneeling near the foot of the bed and overbalanced backwards while moving her legs. The springy mattress and her position provided a more likely explanation. The difference in level and any slope played no part in the accident.
4. Consumer protection. The defendant had potential liability as a producer because it branded the bed as its own, under section 2 and section 2(2)(b) of the Consumer Protection Act 1987. The court considered section 3 and held that the statutory defect test is objective and fact-specific. The bed was not as designed, but the unusual combination of positioning and movement required to cause a fall did not make its safety below the level persons generally were entitled to expect. The claim would therefore have failed on this ground in any event. The approach in A v NBA was adopted.
5. Contract and negligence. If the gliders were absent, the bed was not of satisfactory quality and the assembly service breached section 13 of the Supply of Goods and Services Act 1982. However, the alleged loss was too remote. Applying the principles in Hadley v Baxendale [1854] 9 Ex 341, Liesboch Dredger v SS Edison [1933] AC 449 and Hughes v Lord Advocate [1963] AC 837, the relevant kind of accident was not reasonably foreseeable or within the parties’ contemplation.