Country:

UK (England)

Case Name:

Richardson v LRC Products Ltd (2000) 59 BMLR 185

Court:

Queens Bench Division, 24-28 January; 2 February 2000

Topics/Issues:

Consumer expectations

Extent of manufacturer liability for a product defect

Claimant's obligations to reasonably attempt to mitigate damage suffered

Legislation referred:

Consumer Protection Act 1987 (CPA) ss. 3 and 4

Cases referred:

Shearing Agrichemicals Limited v Resivel NV SA & Anr (CA unreported 26 November 1992)

County Limited & Anr v Girozentrale Securities [1996] 3 All ER 834

MacFarlane v Teeside Health Authority [1999] 3 WLR 1301

Facts:

The Claimant and her husband had used condoms as a means of contraception as they no longer wished to have any children. Mr Richardson used the condom manufactured by the defendants for sexual intercourse. When he withdrew, he found that the teat had parted from the body of the condom. As a result of the fracture, the Claimant became pregnant. The teat was not recovered but the body of the condom was kept for expert examination.

The Claimant brought an action for damages against LRC Products Ltd as a result of the failed condom under the Consumer Protection Act 1987 on two counts:

(1) That the fracture of the condom was caused by a weakening of the latex occurring before the condom left the factory

(2) The fact of the fracture itself evidenced the existence of a defect for the purposes of the Act.

The Court rejected both counts.

Legal Questions:

1. What are consumers naturally "entitled to expect" under section 3 of Consumer Protection Act?

2. Did the fact of fracture of condom in itself provide evidence of a defect for the purposes of the act?

3. Is there an obligation to mitigate loss/damage for the sake of recovering damages?

Decisions:

1. Consumer expectations: albeit the natural expectation of a consumer would be that the condom would not fail, such expectations under section 3 are viewed in light of the circumstances of the product. These circumstances include (a) the manner in which and the purposes for which the product was being marketed, (b) its get up (c) the use of any mark used in relation to the product and (d) any instructions or warnings given for the product's use. Since the Defendant made no claim of 100% effectiveness, this should not be supposed by the consumer.

2. Defect: the fact of a fracture, in itself, did not point to a "defect" in the product for which the Defendant would be liable under the CPA. The evidence showed an "inexplicable failure".

3. Obligation to mitigate? Yes. The concept of mitigation required a claimant to show that damage suffered was damage that could not have been reasonably avoided. The "reasonableness" takes its colour from the state of knowledge of the person or entity in question. The Claimant knew that she could take the morning after pill within 72 hours.

Comments:

This case illustrates, and puts into perspective, the extent to which a consumer is "entitled to expect" a certain standard from a product under section 3 CPA.

Section 4 is also considered in respect of its use as a possible defence for the defendants in the event of the section 3 claim going against them. The Court rejected such submissions, holding that it could not be used unless the defendants could show the defect to be one of which leading scientific knowledge was ignorant. The Court continued, stating that where the character of the defect is known, section 4 did not protect a defendant from liability merely because there was no test, which could reveal the existence of the defect.

Original Text:

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