Legal disgest: United Kingdom

Liability for defective products Consumer Protection Act 1987 causation and burden of proof

The Claimant, Ms Foster was given silicone breast implants in August

Ms Foster brought an action for damages under the Consumer Protection Act 1987 against the manufacturer of the implants, Biosil, alleging that the implants were defective. She claimed that the left implant had ruptured seven months after it had been inserted and that the right implant had leaked silicone. Ms Foster claimed that all she had to demonstrate to the court in order to prove that the implants were defective was that the implants were unsafe, and that the safety of the implants was not such as persons generally are entitled to expect. Biosil disputed Ms Foster's interpretation of the law and instead claimed that Ms Foster had to show both that a defect had actually occurred, and that the implants were defective under section 3 of the Act. This section states that `...there is a defect in a product for the purposes of this part (of the Consumer Protection Act) if the safety of the product is not such as persons generally are entitled to expect...'.

Also in issue was the question of which party bears the burden of proof in cases such as this regarding proving that the defective product had been the cause of the alleged harm or damage. Ms Foster claimed that the Directive of the Council of the European Communities dated 25 July 1985 (which was implemented into UK law by the Consumer Protection Act 1987) had changed the burden of proof from the consumer to the producer.

Judgement was given for Biosil and Ms Foster's claim for damages was dismissed. The judge held that in cases where it was alleged that a product was defective, the claimant had to prove, on the balance of probabilities (ie that there was a greater than 50 per cent chance), that the product itself was in fact defective and that this defect was caused by the fact that it was a defective product within the meaning of the Consumer Protection Act 1987. It was not sufficient for Ms Foster to show that the implants had failed in an unsafe manner and that she was entitled to expect that they would not so fail.

On the evidence produced to the court, the facts and circumstances did not prove that the implants were defective. The reasons for this finding were that the evidence showed that when the right implant was removed, it was intact meaning that the liquid that Ms Foster claimed to be leaked silicone was probably a substance exuded internally by her body. As regards the left implant, the evidence showed that implants rarely ruptured, and it could not be proved that the left implant was defective. As a result, Ms Foster had failed to prove both that the implants were in fact defective (that they had leaked and ruptured) and that these defects were caused by the fact that the implants were defective products (that they had been manufactured to a standard of safety that was below what people generally are entitled to expect).

The judge also held that the Directive had not reversed the burden of proof, and the consumer still had to prove that the defective product had been the cause of the harm suffered by the consumer. However, the Directive had replaced the test of negligence with strict liability of the producer meaning that provided a consumer proved that a defect had in fact occurred, and that the product itself was defective under the Consumer Protection Act, the producer would be liable. Therefore it would not matter whether the defective product was defective because it had been manufactured in a defective way due to negligence on the part of the producer, or whether the product was defective due to no fault of the producer. Foster v Biosil (2001) 59 B.M.L.R. 178 Solicitor involved in personal business dealings with former client --Solicitor's duty to observe fiduciary obligations in relation to former client

In 1987, Mr and Mrs Longstaff instructed solicitors, Peter and Michael Birtles, to act for them in relation to their intended purchase of a property called the Moorcock Inn. Mr and Mrs Longstaff were looking to buy the property as a business venture, however, the purchase did not go ahead and negotiations were ended by a letter which was sent by the solicitors.

Shortly after the retainer between the Longstaffs and the solicitors in relation to the purchase of the Moorcock Inn had come to an end, the solicitors suggested to the Longstaffs that they enter into a partnership agreement with the solicitors and two other parties, for the purpose of purchasing a hotel business at Brough. The solicitors suggested that the Longstaffs should consult a local valuer to advise them on the value of the hotel business, but they did not suggest that the Longstaffs should consult an independent legal adviser for advice as to whether they should enter into the partnership. The Longstaffs signed the partnership agreement in April 1988, and they paid the sum of L40,000 for a 50 per cent share in the partnership.

The hotel venture was not successful and after some time the partnership was dissolved and the Longstaffs were left unemployed and in dire financial circumstances. In 1992, the Longstaffs issued a writ against the solicitors, claiming damages for professional negligence.

At the trial hearing, the judge found in favour of the solicitors, on the grounds that they owed no fiduciary duty to the Longstaffs. However, on appeal the Court of Appeal reversed the trial judge's decision after the Longstaffs amended their statement of claim, the amendment being allowed in the interests of ensuring justice between the parties.

The Court of Appeal decided that (a) there was a fiduciary relationship of trust and confidence between the Longstaffs and the solicitors, (b) such relationship had not ended on the termination of the retainer in respect of the purchase of the Moorcock Inn, and (c) the fiduciary duties of the solicitors in respect of such relationship conflicted with their personal interests. The fiduciary relationship was created not by the retainer itself but by all the circumstances (including the retainer) that led the Longstaffs to trust and have confidence in the solicitors. Moreover, the solicitors had made use of a business opportunity that arose from the retainer with the Longstaffs, in that the solicitors became aware that the Longstaffs were seeking to invest in a hotel business because of the retainer.

The Court of Appeal held that where a solicitor was either selling property to or purchasing property from a client, and in circumstances such as these a former client, the solicitor was under a duty to ensure that the client (or former client) obtained independent legal advice. The Solicitors were therefore in breach of their fiduciary duties in failing to advise the Longstaffs to seek independent legal advice on whether to enter into the partnership. The Longstaffs were entitled to equitable compensation for the loss suffered as a result of the solicitors' breach of fiduciary duty.

Longstaff and Another v Birtles and Others; The Times 18 September 2001 CA

Negligent advice by surveyor loss of enjoyment of property by owner due to noise - surveyor liable for damages for breach of contract -- Appeal to the House of Lords

Mr Farley instructed Mr Skinner, a surveyor, to survey a property that he wanted to buy. The property was situated in Sussex, about 15 miles from Gatwick International Airport. It was a priority for Mr Farley that he purchased a property that was quiet and tranquil and with this in mind he specifically instructed Mr Skinner to investigate whether the property would be affected by noise from aircraft. Mr Farley made it clear to Mr Skinner that he did not want to buy a property that was situated in a flight path. Mr Skinner informed Mr Farley that he did not think that it would be likely that the property would be affected very much by noise from aircraft, and Mr Farley decided to go ahead with the purchase of the property.

Mr Farley then spent L125,000 on works to the property, before moving in a few months later. Once Mr Farley was living in the property it became apparent that it was significantly affected by noise from aircraft. This was due to aircraft flying over, or nearby the property and the fact that when the airport was congested, aircraft would circle round a navigation beacon which was close to the property. It was agreed that Mr Farley's enjoyment of the property was much reduced by the noise. At trial, the judge awarded Mr Farley 10,000 in damages for the discomfort he suffered due to the aircraft noise.

On appeal, the Court of Appeal overturned the trial judge's decision and decided that although there had been a breach of contract, the exception to the principle decided in Watts v Morrow (1991 1 WLR 1421) did not extend to the current circumstances, because the object of the current contract was not to provide pleasure, relaxation and peace of mind. (The principle in Watts v Morrow being that a person who is in breach of a contract is not liable for any distress, anxiety etc. caused to the innocent party, unless the subject matter of the contract is to provide pleasure, relaxation and peace of mind, or unless mental suffering results from a physical inconvenience or discomfort which is caused by the breach.) Refer to Consumer Policy Review Jul/Aug 2000 edition for a full legal digest report of the Court of Appeal decision (pages 152-153).

Mr Farley then appealed to the House of Lords, which decided that the decision of the Court of Appeal was incorrect and that Mr Farley was entitled to damages for breach of contract. The House of Lords decided that the investigation into aircraft noise was a major part of the contract and that Mr Farley's claim was not for injured feelings, but was for damages for the failure of Mr Skinner to make the proper investigations under the terms of the contract. This then had the effect of denying Mr Farley the opportunity to make an informed decision about whether to purchase the property and as a result caused Mr Farley distress and disappointment.

In particular the House of Lords decided that there was no reason why the exception to the principle in Watts v Morrow (detailed above) should be limited to where the overall object of the contract was to provide pleasure, relaxation or peace of mind. Instead it was enough that a significant or important part of the contract related to pleasure, relaxation or peace of mind, as was the case with the contract in these circumstances.

The House of Lords rejected Mr Skinner's submission that the exception described above did not relate to the situation where there was a breach of contract, but was only applicable to the situation where a guarantee had been given to secure the achievement of the object of the contract. This was on the grounds that the submission had no authority and in any case would be wrong.

The House of Lords also rejected the submission that Mr Farley had given up his rights to claim damages due to his decision to remain living in the property, on the grounds that there was no legal basis for this argument. The House of Lords decided that Mr Farley had acted reasonably in trying to make the best of the situation, and by doing so had avoided the need to make a larger claim against Mr Skinner.

Farley v Skinner; The Times 15 October 2001 HL