12 October 2010
Public Liability: Probably the Best Beer in the World?
I am always troubled when I see the sweeping statements made by advertisers on behalf of their clients. I appreciate that this is all ‘part and parcel’ of advertising and selling a product and perhaps it is the staid lawyer in me that requires evidence when I am asked to accept that I am buying what is ‘probably the best beer in the world’.Whatever advertisers say, manufacturers are however still required to ‘come up with the goods’. The law requires someone who manufactures an article for sale, to manufacture this to a sufficiently high standard so that it is seen as being fit for the purpose for which it was intended.If I therefore buy a kettle which does not work or alternatively boils the water to a certain temperature but not to a sufficiently high temperature to enable me to make a good cup of tea, the kettle will not be said to be fit for the purpose for which it was intended.Equally, if I buy a bicycle which provides me with good service and enables me to commute as I intended to from my home to work and back for some months but then causes me to have a cycling accident resulting in a broken arm when the pedal sheers off for no apparent reason, I will look to see whether, given the nature of the defect which caused my injury, the fault lies with the manufacturer of the bicycle. The Courts are well aware that products do wear down over time. The Court will therefore not allow me to return my broken kettle to the shop where I bought it from and ask for a refund some 5 years or, in some circumstances, even earlier after I bought it, depending upon the nature of the product.If therefore the pedal sheared off my bicycle some 5 years after I bought it and the bicycle had been involved in a collision or I had knocked the pedal on numerous occasions against the kerb by accident and there was evidence of this on the bicycle or pedal, it would be very difficult for an expert to say that the reason the pedal had sheared away causing my injury was due to the nature of the metal used or metal fatigue. Instead, a Court is likely to find that I, as a Claimant, had failed to discharge the burden that I have of establishing that the product which I had purchased was defective.Much therefore depends upon the nature of the product I have purchased. I would of course have to produce evidence that it was purchased on a certain date and was adequately maintained in the case of my bicycle and equally, that I rode the bicycle in a reasonable manner so as to not cause any damage to the bicycle and therefore increase the risk of any part of the bicycle failing.This does not in any way, remove the onus that the manufacturer has of ensuring that the product which they manufactured is produced to a high standard so that the bicycle was safe for me to ride.Instead the onus does not shift upon the Claimant but instead the passage of the time and the way I have treated my bicycle makes it easier for the manufacturer to be able to defend the claim and to say that there must be other reasons that caused the metal to shear away rather than the initial metal fatigue caused by the manufacturer’s negligence.I have of course used examples of my kettle and bicycle above to illustrate the point. The fact of the matter is that an incalculable number of products are manufactured each day for sale. Some of these can harm us greatly if they are not manufactured to a sufficiently high standard. If I therefore take medication and do so for some time which results in my developing a serious condition which would not otherwise have occurred had it not been for any defect in the medication that I was taking which had not been adequately tested, the manufacturer will be responsible for my condition and should rightly pay me compensation. The manufacturer therefore owes the person to whom the product was sold a duty of care as indeed we all owe each other and if that breach of duty results in an injury occurring, I should be entitled to compensation for the injuries and losses I have sustained. Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form or email email@example.com and one of our specialist personal injury team will review your compensation claim for free.