Recent developments in claims for defective products – where does the burden of proof lie?
The burden of proving whether there is a defect in a product, rests with the claimant pursuant to s.3 Consumer Protection Act 1987.
The burden of proving whether there is a defect in a product, giving rise to a claim for damages, rests with the claimant pursuant to s.3 Consumer Protection Act 1987. However, what is the reality? Fiona East, Head of Product Liability Claims, considers whether the recent cases of Love v Halfords  EWHC 1057 (QB) and Hufford v Samsung Electronics  EWHC 2956 (TCC) have increased the evidential burden on the claimant.
The previous cases of IDE v ATB Sales  EWCA Civ 424 and Lexus Financial Services v Russell  EWCA Civ 424 suggest that it was not an onerous task for claimants to overcome this burden. The case law also suggested that, on occasion the court may accept the claimant has satisfied the burden of proof by inference.
In Ide v ATB Sales  EWCA Civ 424, where the handlebars on a bike fractured, the claimant was unable to identify the particular nature of the defect. However, the judge was willing to accept that a manufacturing or design defect was”not improbable” and therefore found for the claimant. This decision suggested that a judge may find a product defective if it failed in its use and no other plausible explanation is available.
A frequent question raised by defendants is that if the claimant is unable to prove the precise defect how can the defendant be held liable? Why should a judge decide liability based on what explanation he prefers? claimants, on the other hand, argue that the complexities of products make it almost impossible in certain cases to prove a specific defect.
More recent cases arguably go some way in demonstrating that the burden does remain on the claimant to prove that the product is defective, albeit on the balance of probabilities.
In the recent case of Love v Halfords  EWHC 1057 (QB) the claimant brought a claim against a supplier on the basis that the steerer tube of the bike had fractured causing the claimant to fall. The judge found that there was no evidence of any type of failure of the steerer tube and therefore dismissed the claim. The Judge also found that there must have been a prior event in which the steerer was damaged and not repaired properly and that the probable cause of the final fracture was the result of a second accident – notwithstanding that the Judge could not reach a conclusion as to how it happened.
Meanwhile, in Hufford v Samsung Electronics  EWHC 2956 (TCC), a case involving a fridge/freezer which caught fire, the claimant argued that the fire originated inside the appliance. The defendant argued that it was a combustible material outside of the fridge/freezer that caught fire which subsequently spread to the appliance. The court accepted the opinion of the defendant’s expert. The Judge held that the claimant had failed to discharge the burden of proof which required evidence that a) there was a defect in the product or b) the fire had started in the appliance.
The Judge in Hufford clarified that the burden of proof remains on the claimant throughout. His comments together with the decision in Love should give some reassurance to defendants.
However, whilst the Judge did confirm that the burden of proof rests with the claimant, he also said that the claimant does not have to identify the precise defect in the product. It is enough for the claimant to prove that there was a defect in broad or general terms, although the Judge did go on to say that a court will be slow to infer a non-specific defect without strong evidence.
The case of Love is shortly due to be heard in the Court of Appeal which means there is uncertainty as to whether the Judge’s approach in the first instance will be followed. The cases of Love and Hufford also demonstrate the importance of obtaining robust expert evidence in cases where there is a dispute over whether the product in question was defective.