Hazel Wilson (as Administratrix of the Estate of the Late John Wilson) v Beko Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 10 December 2019 |
| Neutral Citation | [2019] EWHC 3362 (QB) |
| Date | 10 December 2019 |
| Docket Number | Case No: HQ18P02345 |
| Court | Queen's Bench Division |
[2019] EWHC 3362 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: HQ18P02345
Simeon Maskrey QC and Adam Korn (instructed by Leigh Day) for the Claimants
Charles Dougherty QC and Isabel Barter (instructed by Kennedys) for the Defendant
Hearing dates: 13 November 2019
APPROVED JUDGMENT
Introduction
This case raises important issues of law but at its heart are the tragic death of John Wilson aged 63 in a house fire in Manchester on 9 August 2016 and the serious injuries suffered by members of his family. Nothing in this judgment is intended to minimise the loss and suffering they have experienced.
The inquest into Mr Wilson's death found that the fire was caused by a faulty component in a Beko fridge-freezer which he had purchased in 2005. The model in question was subject to a product recall in 2011 following a death in 2010. There was a further death in 2014. The Defendant admits in its Amended Defence at [4] that ‘it is likely on the balance of probabilities’ that the fire started in the fridge-freezer.
The Defendant was responsible for the sale, marketing and distribution of the fridge-freezer. It is a UK based company and describes itself on its website as ‘one of the leading home appliance brands in the UK’ which has been ‘operating in the UK and Ireland since 1990 and have sold over 30 million appliances in the UK.’ It is a subsidiary of Arçelik AS, a Turkish company based in Istanbul, who manufactured the fridge-freezer.
As well as John Wilson's death, the fire caused serious injuries to the other Claimants and property damage. Mr Wilson, his wife Mrs Hazel Wilson and the Third Claimant were in the property at the time of the fire. The Fourth and Fifth Claimants were rescuers and were injured in the rescue attempt.
The Claimants claim damages for personal injury and insured and uninsured and consequential losses arising out of the fire. The pleaded value of the claims exceeds £575,000. The claim is brought in negligence and breach of statutory duty, the latter arising from an alleged breach of s 41(1) of the Consumer Protection Act 1987 (the 1987 Act), which is contained in Part V.
The issues before me concern the claim for breach of statutory duty. Let me set them out straight away. By an order dated 30 May 2019 Senior Master Fontaine ordered the following be tried by way of preliminary issue:
“(1) Are, on a true construction, section 41(1) of the Consumer Protection Act 1987 (‘the 1987 Act’) and/or the Electrical Equipment (Safety) Regulations 1994 applicable in this case (on the basis of the matters pleaded in the Amended Particulars of Claim), and taking into account insofar as relevant Products Directive (No 85/374IEEC) and EU law, and if so to what extent and on what basis?
(2) In light of the answer to (1), should judgment be entered?”
The Claimants are represented by Mr Maskrey QC and Mr Korn. The Defendant is represented by Mr Dougherty QC and Ms Barter. I am grateful to all of them for the high quality of their written and oral submissions.
Mr Dougherty accepted that the issues before me are ones of pure law. In particular, notwithstanding the lack of available forensic evidence, he said the Defendant was content to proceed on the basis that the fire was probably caused by an electrical fault in the product and that the fridge-freezer was unsafe under the relevant legislation (considered below).
As to the second issue, one of the defences relied upon by the Defendant is that there was a novus actus interveniens because it says the Claimants continued to use the fridge-freezer despite having been put on notice that it was defective. Mr Maskrey accepted that this defence will require evidence to be called, and thus that I could not enter judgment for the Claimants even if I were with him on the first issue.
The legal framework
Before turning to the parties' submissions, it is necessary to set out the relevant legal provisions.
Domestic law
Section 1 of the 1987 Act, as amended, declares that Part I (entitled ‘Product Liability’) was enacted for the purpose of making such provision as is necessary in order to comply with the Directive specified in s 1(2), namely the Directive of the Council of the European Communities, dated 25 July 1985, (No 85/374/EEC), on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. I will refer to this as ‘the Directive’. The UK was the first Member State to implement the Directive when it enacted Part I of the 1987 Act.
Section 1(2) defines ‘product’ (in summary terms) as meaning any goods or electricity.
Section 1(2) defines ‘producer’, in relation to a product, as meaning the person who manufactured it.
Section 2 is headed ‘Liability for Defective Products’. Section 2(1) provides that subject to the provisions of Part 1, where any damage is caused wholly or partly by a defect in a product, every person to whom s 2(2) applies shall be liable for the damage. Such persons include any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product (s 2(2)(b)) and; any person who has imported the product into a Member State from a place outside the Member States in order, in the course of any business of his, to supply it to another.
Section 3(1) provides that a product is ‘defective’ ‘[i]f the safety of the product is not such as persons generally are entitled to expect … in the context of risks of damage to property, as well as in the context of risks of death and personal injury’.
Section 3(1) defines ‘defect’. There is a defect in a product for the purposes of Part I if the safety of the product is not such as persons generally are entitled to expect. Section 3(2) specifies number of matters that are to be taken into account for the purposes of s 3(1) in determining what persons generally are entitled to expect in relation to a product.
Section 4 provides for a number of defences. For example, s 4(1) provides that it is a defence to civil proceedings under Part I against any person (the person proceeded against) in respect of a defect in a product for him to show that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any EU obligation. Section 4(1)(e) contains what is often known as the ‘Development Risks’ defence. It is a defence to show that:
“… the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control ….”
Section 5 sets out what constitutes relevant damage. It includes death and personal injury and property damage. There is a minimum £275 threshold (s 5(4)).
The longstop limitation period for a claim under Part I is 10 years beginning with the data the product was supplied: Limitation Act 1980, s 11A(3) read with s 4(2) of the 1987 Act.
Part II of the 1987 Act is headed ‘Consumer Safety’. Section 11(1) provides that the Secretary of State may by regulations under s 11 (safety regulations) make such provision as he considers appropriate ( inter alia) for the purpose of securing that goods to which s 11 apply are safe. Section 11(7) provides that s 11 applies to any goods other than those specified in the sub-section (eg, growing crops (s 11(7)(a)).
Section 19(1) defines ‘safe’ for the purposes of Part II:
“‘safe’, in relation to any goods, means such that there is no risk, or no risk apart from one reduced to a minimum, that any of the following will (whether immediately or after a definite or indefinite period) cause the death of, or any personal injury to, any person whatsoever, that is to say—
(a) the goods;
(b) the keeping, use or consumption of the goods;
(c) the assembly of any of the goods which are, or are to be, supplied unassembled;
(d) any emission or leakage from the goods or, as a result of the keeping, use or consumption of the goods, from anything else; or
(e) reliance on the accuracy of any measurement, calculation or other reading made by or by means of the goods,
and … ‘unsafe’ shall be construed accordingly …”
Section 41 of the 1987 Act is contained within Part V of the 1987 Act ( Miscellaneous and Supplemental) and is headed ‘Civil Proceedings’. Section 41(1)(2) provides:
“(1) An obligation imposed by safety regulations shall be a duty owed to any person who may be affected by a contravention of the obligation and, subject to any provision to the contrary in the regulations and to the defences and other incidents applying to actions for breach of statutory duty, a contravention of any such obligation shall be actionable accordingly.
(2) This Act shall not be construed as conferring any other right of action in civil proceedings, apart from the right conferred by virtue of Part I of this Act, in respect of any loss or damage suffered in consequence of a contravention of a safety provision …”
The relevant safety regulations for the purposes of this case are the Electrical Equipment (Safety) Regulations 1994 (SI 1994/3260) (the 1994 Regulations). These transposed Council Directive No 73/23/EC on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits as amended by the CE marketing Directive (overall, the Low Voltage Directive).
EU law
The...
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