Party like it's 1-999: New Years Eve fire provides reminder of proof requirements under the Consumer Protection Act 1987

Party like it's 1-999: New Years Eve fire provides reminder of proof requirements under the Consumer Protection Act 1987

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Author: Richard Marshall

When Mr Hufford invited his parents around for a celebratory lunch on New Years Eve 2009, he couldn't have envisaged it would bring product liability notoriety.

Yet that is exactly what happened when His Honour Judge Grant handed down judgment in Hufford v Samsung Electronics (UK) Ltd [2014] EWHC 2956.

So how did it happen?

Mr Hufford and his parents had a New Years Eve lunch in Mr Hufford's newly refurbished £14,000 kitchen. Mr Hufford and his parents departed early evening. Mr Hufford headed for a New Years Eve party.

On New Years Day, Mr Hufford returned home to find it devastated by fire. The fire brigade expressed a preliminary view that a Samsung fridge freezer, purchased in 2007 was at fault. Samsung disagreed.

Mr Hufford sued Samsung under the Consumer Protection Act 1987 for damage to his property. Rarely for a CPA claim, the matter proceeded to trial.

The Consumer Protection Act in a nutshell

The CPA 1987 provides consumer claimants with a right to sue retailers, importers and manufacturers where a product causes personal injury or property damage. To qualify under the Act, a claimant must show a product to be 'defective' within the meaning of Section 3 which states:

".there is a defect in a product.if the safety of the product is not such as persons generally are entitled to expect..."

An ambiguous test if ever there was one.

So when can a 'defect' be established / inferred?

HHJ Grant utilised the case to provide a helpful and much needed summary of the judicial approach to CPA 'defect':

  • The burden of proving a defect is on the claimant
  • A claimant does not need to specify or identify with accuracy or precision the specific defect; It is enough to prove the existence of a defect in broad or general terms (e.g. 'electrical fault').
  • When determining whether there was a defect, it is necessary to consider all the circumstances of the case including the full factual background and expert opinion.

So what happened next?

HHJ Grant favoured expert evidence obtained by the fridge freezer manufacturer that burn patterns suggested the fire had started at a low level outside the fridge freezer (not in the fridge freezer itself). Neither expert could find a precise physical fault with the fridge freezer (perhaps not surprising as it had been part destroyed by fire). Mr Hufford therefore sought to rely on broad and general 'electrical defect'.

Dismissing the claim, HHJ Grant noted that the fridge freezer had neither been historically defective or the subject of a relevant product safety notice. HHJ Grant felt Mr Hufford and his mother to be less than impressive witnesses. To the contrary, HHJ found sufficient factual evidence that discarded smoking material caused the fire (e.g. an ashtray on top of the fridge freezer).

Practical points

Despite the result being favourable to the manufacturer, the Hufford case is notable for the judge's approach to determining whether a 'defect' exists.

The following are useful tips for potential claimants and defendants alike:

  • in order to prove a defect it is sufficient for a claimant to infer a broad and general defect when a product does not perform as the general public are entitled to expect (e.g. 'electrical fault').
  • a defendant does not have to plead a positive alternative theory to explain away loss. The burden is on the claimant to prove its case based on all the circumstances
  • whilst it is not necessary for a claimant to highlight a specific defect, a claimant's case will be more susceptible to failure where a defendant advances a credible alternative theory. It is our experience that judges rarely like to make an order of 'no findings of cause at all'. Defendants should plead positive competing theories where the evidence permits
  • in cases where physical evidence has been damaged or destroyed, all the circumstances of the case will have elevated importance. The role of experts is crucial and a court will place great emphasis on how competing theories knit with factual evidence

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Richard Marshall

Senior Associate

03700 86 5806

Richard is a Senior Associate at Shoosmiths Manchester specialising in insurance and product liability. Richard is regularly instructed by leading household appliance manufacturers to advise on consequential loss claims, supply agreement disputes and preventative liability action.

Richard leads the insurance team in Manchester and works closely with National Head of Insurance Paul Eccles. Richard is an experienced insurance litigator specialising in large loss insurance policy coverage disputes, professional negligence and property damage claims.

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