Al-Iqra & Ors v DSG Retail Ltd

Under the Consumer Protection Act 1987, a claimant need not identify the precise mechanism by which a product became unsafe. It is sufficient to establish, on the balance of probabilities, that the product caused the damage and that it was defective. Where a product used normally ignites spontaneously, the court may infer that its safety fell below the level persons generally were entitled to expect, particularly where misuse is absent. The court must assess the evidence as a whole. It must not treat conformity with safety standards, safety features, or the absence of previous incidents as determinative.

The claimants, two children, sought damages for serious injuries sustained in a domestic fire. They alleged that a Matsui fan heater supplied by DSG Retail Ltd caused the fire and was defective within the meaning of the Consumer Protection Act 1987.

The trial concerned liability only. The principal issues were whether the heater was the source of the fire and, if so, whether it ignited because of a defect. The defendant denied that the heater was defective and relied on other possible causes.

1. Judgment for the claimants. The court found on the balance of probabilities that the heater was the source of the fire. The evidence of the claimants’ mother was credible, consistent and independently corroborated by the contemporaneous fire and police investigations. Her evidence that flames and smoke came from the heater, rather than from behind it, excluded the proposed alternative sources such as the extension lead and fish-tank transformer.

2. The court applied the causation guidance in Ide v ATB Sales and Lexus Financial Services t/a Toyota Financial Services (UK) Plc v Russell [2008] EWCA Civ 424. The court was required to identify the probable cause on the evidence. It was not required to select the least improbable cause or to eliminate every conceivable alternative.

3. Once the heater was found to have caused the fire, and misuse was absent, its defect followed by necessary inference. Applying the approach in Gee v Depuy International Ltd 2018 EWAC 1208 (QB), the claimants did not need to prove the precise mechanism of ignition. The heater had been used normally but had ignited spontaneously in circumstances in which it should not have done so. Its safety therefore fell below the standard persons generally were entitled to expect under section 3 of the Act.

4. CE marking, compliance with European standards, the heater’s safety features, and the absence of previous reported incidents did not determine whether it was defective. The defendant’s statutory defences were not relied upon.

5. Damages were to be assessed. The parties were invited to agree an order reflecting the judgment, including costs.