England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEICESTER COUNTY COURT AND FAMILY COURT
(RECORDER MAINDS HANDED DOWN BY HER HONOUR JUDGE HAMPTON)

		Royal Courts of Justice Strand London, WC2A 2LL
		03 May 2017

Lord Justice Hamblen:

Introduction

1. On 24 February 2010 the respondent claimant, Mr Baker, was riding his KTM Supermoto 990 motorcycle ("the motorcycle") along Manor Road, Derby. He was travelling within the speed limit. Suddenly, and without warning, the front brake of the motorcycle seized, causing Mr Baker to be thrown from the motorcycle, as a result of which he sustained severe personal injuries.

2. Mr Baker sued the appellant defendant, KTM Sportmotorcycle AG, now KTM Motorrad AG ("KTM"), the manufacturer of the motorcycle, alleging that the accident and the resulting injuries were caused by a defect in the motorcycle contrary to section 3(1) of the Consumer Protection Act 1987 ("the CPA") and / or KTM's negligence.

3. Following a five-day trial in early 2015 the judge, Mr Recorder Mainds QC, in a judgment dated 8 May 2015 upheld Mr Baker's claim under the CPA and awarded him for provisional and special damages. The Recorder found that the cause of the seizing of the brakes was galvanic corrosion which had happened "as a result of a design defect combined with faulty construction or the use of inappropriate or faulty materials".

4. KTM appeals on the ground that there was no or no sufficient evidence before the court that the galvanic corrosion was caused by a defect in the motorcycle within the meaning of the CPA.

The factual background

5. Mr Baker, who was 49 years old at the time of the accident, is a locum maxillofacial surgeon. He is a very experienced motorcyclist, having been motorcycling for years and regularly riding a motorcycle to and from work at his hospital.

6. KTM is an Austrian motorcycle manufacturing company. The motorcycle was manufactured in around March 2008 utilising brakes manufactured by Brembo, an Italian company.

7. The motorcycle was first registered in the United Kingdom in April 2008. Its first owner was a Mr Michael Pegler, from whom there was no evidence at trial. It was bought by Mr Baker in November 2009 from a dealer. At that stage its mileage was 1,676 miles and it had been fully serviced by a KTM dealership prior to the sale. At the time of the accident its mileage was 3,935 miles, which was approximately halfway through its service cycle of 4,500 miles.

8. Mr Baker owned six motorcycles. It was his evidence that he would always wash them down when he had used them, using a hose. He understood that it was important not to leave road salt in and around the motorcycle.

The evidence at trial

9. In support of Mr Baker's case there was evidence from Mr Baker, Mr Taylor, an expert mechanical engineer, Mr Grant, a retired professional motorcycle racing driver, Mr Quinlan, who gave evidence of having a similar experience to Mr Baker with a KTM motorcycle, and an unchallenged report from LPD Laboratory Services Ltd, containing an analysis of the deposits on the brake disc assembly.

10. In support of KTM's case there was evidence from its engineering expert, Mr Ward, Mr Esposito, Brembo's design department manager, and Mr Tiller, KTM's sale support co-ordinator. In his judgment the Recorder set out the evidence of each of these witnesses and we have been provided with the trial transcripts.

11. In brief summary, Mr Taylor inspected the motorcycle in October 2010. He found that the front wheel had to be pushed around and would not freely spin. He noticed a blue surface discolouration of the surfaces of the left-side brake disc, suggesting that it had been subject to significantly high operating temperatures on the right disc and that the brakes were not operating in an evenly balanced way.

12. LPD found deposits containing copper, iron, chromium, nickel and zinc to the area on the inner wall of the piston between the top edge of the housing and the first seal of the piston ball. Mr Taylor considered these white deposits to be aluminium oxide / hydroxide as produced by galvanic corrosion rather than the build-up of road salt. He explained the galvanic corrosion process as follows:

"The body parts of aluminium alloy in the calliper become an electrical anode on one side and what appears to be the steel of the brake pistons on the other side of any liquid bead of salted water becomes the cathode of what is effectively an electric battery. The galvanic corrosion process apace principally the aluminium alloy of the anode because of the direction of the flow of electrical current in the electrolyte between the anode and the cathode."

13. Mr Taylor pointed out that aluminium oxide / hydroxide is insoluble in water and would be difficult to wash out of confined spaces within a brake by the recommended procedure for cleaning. His conclusion was that, although there might be some provision in the brakes of the motorcycle for resistance against galvanic corrosion, it did not appear to provide sufficient protection.

14. KTM's expert, Mr Ward, did not inspect the motorcycle until 30 July 2013, nearly three-and-a-half years after the accident. He found that the motorcycle rolled quite freely when it was pushed out of storage and that the brakes seemed to be operating normally when examined. This was explained by Mr Taylor to be likely to be due to forced movements at the time of his earlier inspection. Mr Ward that there was no evidence of corrosion in the annular space which could have affected normal operation and that the seizing of the brakes could be explained through a failure to undertake the recommended maintenance.

15. Mr Grant gave evidence that KTM's advice that the brakes be cleaned after every use would be "completely impracticable" and was unheard of. He considered that the level of corrosion was not something one would expect given the motorcycle's age and that removing corrosion of the nature identified would necessitate removal of the piston, which would have to be done using specialist equipment and knowledge.

16. Mr Quinlan, an owner of a similar KTM motorcycle, stated that he was riding his motorcycle at 30 MPH when the wheel locked and he was thrown from the motorcycle. His complaint was dismissed on the basis that he was at fault for not cleaning the motorcycle properly.

17. Mr Esposito said that the brakes had been examined by Brembo's returned parts analysis department, that dust with a local high content of chloride was found and that the callipers were working properly.

18. Mr Tiller stated that he had addressed a number of complaints from KTM owners about brakes. He maintained that there was no mechanical issue with the brakes and that the principal problem was a failure to clean the brakes properly.

The CPA

19. Section 3 of the CPA provides as follows:

"Meaning of "defect"

E+W+S

(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes "safety", in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

(2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including—

(a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;

(b) what might reasonably be expected to be done with or in relation to the product; and

(c) the time when the product was supplied by its producer to another;

and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question."

20. In summary, there is a "defect" under section 3 if "the safety of the product is not such as persons generally are entitled to expect". In determining what persons generally are entitled to expect, regard is to be had to all the circumstances, including those specified in section 3(2).

21. Guidance as to the proper interpretation and application of section 3 is provided by the case of Ide v ATB Sales Ltd and Another [2007] EWHC 1667 (QB), [2008] EWCA Civ 424 (CA), to which the Recorder was referred.

22. In that case personal injury was caused to the claimant when he fell from his mountain bike. The handlebar of the bike was found to be fractured and the issue was whether the fracture occurred because the handlebar was defective or whether it fractured when the claimant fell from his bike. At first instance, Gray J directed himself in the following terms at [86]:

"I do not consider it to be necessary for me to determine the precise mechanism which led to the handlebar fracturing but rather whether the evidence supports the conclusion that, as a matter of probability, the handlebar was defective in a way which caused it to fracture."

23. He found that it was defective and he accepted that the fracture was both instantaneous and catastrophic, that it was not caused by the fall and that a standard non-defective handlebar would not have failed in such circumstances.

24. On appeal this was held to be a permissible approach and the judge's decision was upheld. Thomas LJ observed as follows at [7]:

"The application of this approach by a court considering the claim under the Consumer Protection Act 1997 in respect of a defective product can often be simpler. Under section 2 and 3 of the Act, if a person is injured by a product his claim succeeds if he establishes there is a defect in the product and that defect caused the loss, unless the defendant can rely on one of the statutory defences. In determining whether the loss or injury has been caused by a defect or by some other cause, although the process of reasoning may involve an explanation of how the defect was caused, the task of the court is simply to determine whether the loss was caused by the defect and not by another cause. As is apparent from the first of the appeals, that distinction is important and can make the task of the court a simpler one, as no doubt Parliament intended."

25. In upholding the judge's decision on the facts that there was a defect, Thomas LJ stated as follows at [22]:

"The judge had found that the bicycle had been readily maintained and there was no suggestion of misuse or damage. The judge was entitled to infer, as the handlebar had failed in normal use for a bike of this type, that it was defective within the meaning of the Act."

26. The Ide case accordingly illustrates that there may be a defect within the meaning of section 3 of the CPA, even though the precise mechanism by which that defect arose is not proven. In the Ide case, the handlebar was defective in that it failed following normal use and in circumstances where a standard non-defective handlebar would not have failed.

The judgment

27. The Recorder's concluding findings are set out in paragraph 20 of the judgment.

28. The Recorder rejected Mr Ward's evidence that the blurring of the left-hand disc had occurred prior to the purchase of the motorcycle by Mr Baker or on some earlier occasion. He found that it occurred by the seizing of the brakes in the run-up to the accident.

29. The Recorder found that the white corrosion products which were found were the result of galvanic corrosion and not simply road salt conditions. He specifically rejected the suggestion that the seizing of the brakes was caused by a failure to clean them.

30. The Recorder found that the galvanic corrosion "happened as a result of a design defect combined with faulty construction or the use of faulty or inappropriate materials". He further found that this corrosion "was the probable cause of the brakes seizing". The Recorder found that these "defects in the braking system" meant that "the safety in the braking system" on the motorcycle was "not such as persons generally are entitled to expect" that they were defects within the CPA and that they caused the accident and resulting injury to Mr Baker.

The grounds of appeal

31. Permission was given in respect of the following grounds of appeal:

(1) the Recorder was wrong to find that there was a defect in the construction and design of the motorcycle's front braking system;

(2) the Recorder was wrong to find that the galvanic corrosion was the result of a design defect and / or faulty construction or the use of faulty or inappropriate materials;

(3) the Recorder was wrong to conclude that the galvanic corrosion was the immediate cause of the accident.

32. Although this was a major issue at trial, KTM does not now dispute the judge's finding that there was galvanic corrosion. Ground 3 is accordingly no longer pursued.

33. KTM submits that galvanic corrosion is not itself a defect within the meaning of section 3 of the CPA and that no specific design or manufacturing defect which would lead to such corrosion was advanced in Mr Baker's pleaded case or in the evidence.

34. It is submitted that to prove his case Mr Baker had to show that there was a particular feature of the design or manufacture of the braking system which led to galvanic corrosion and that he had not done so.

35. In my judgment, however, there was no need for Mr Baker to plead and prove a specific design or manufacturing defect. As the Ide case makes clear, it is not necessary to show how a defect was caused; it is sufficient to find that there is a defect.

36. In the present case the defect found was a susceptibility for galvanic corrosion to develop in the front brake system when it should not have done, i.e. after limited and normal use and notwithstanding proper servicing, cleaning and maintenance. At the time of the accident the motorcycle was less than two years old, its mileage was low, it had been fully serviced, it was only halfway through its service cycle, it was regularly and appropriately cleaned and its use was normal.

37. As is submitted on behalf of Mr Baker, it is self-evident that one does not expect to find a heavily corroded brake system in a recently purchased, low mileage motorcycle which had been properly serviced and maintained. It was open to the Recorder to infer that the susceptibility of this motorcycle's braking system to do so was a defect. There must have been a defect for the galvanic corrosion to develop as it did.

38. It was also open for the Recorder to infer that this susceptibility must have been a result of a defect in design and / or manufacturing process, but there was no necessity for him to identify the precise nature of that defect.

39. In the Ide case the handlebar was defective in that it failed from normal use and in circumstances where a standard non-defective handlebar would not have failed. In the present case the brakes were defective in that they allowed galvanic corrosion to develop following normal use in circumstances where standard non-defective brakes would not have done.

40. KTM submits that the inferential conclusion that there must have been a defect cannot safely be drawn given that there was no evidence relating to the motorcycle during its ownership by Mr Pegler and, as the Recorder observed, "significantly, nothing as to the cleaning regime, if any, employed by him". The Recorder found, however, that the motorcycle had been serviced before its purchase by Mr Baker, that the brakes were "in excellent showroom condition" at that time and that the blurring of the discs occurred in the run-up to the accident and not prior to purchase or at any earlier stage of Mr Baker's ownership of the motorcycle. In the light of those findings, the previous history of the motorcycle was not material to the galvanic corrosion or its cause.

41. KTM further submits that a finding of a defect was not supportable without some evidence that there had been a departure from the standards employed by other motorcycle manufacturers and there was no such evidence. On the contrary, as Mr Taylor accepted, there was "nothing remarkable about the component parts" of the motorcycle's front braking system. The essential point, however, is that there was galvanic corrosion when there ought not to have been. There was no necessity for comparative evidence. The Recorder was entitled to infer from that fact that there must have been a defect in the braking system on this particular motorcycle.

42. At paragraph 9 of the judgment the Recorder appropriately identified the issues that he had to consider on the evidence, namely:

(1) Was there galvanic corrosion? He found that there was.

(2) Can it be inferred from the fact that if there was such corrosion that there was a defect in the motorcycle which gave rise to it? He found that it could be so inferred.

(3) Was that a defect within the meaning of the CPA? He found that it was?

(4) Did that defect and consequent corrosion cause the ceasing of the brakes and the consequent accident and injury? He found that it did.

43. The Recorder identified the relevant issues to be addressed and he made findings on those issues which were open to him on the evidence and were consistent with the primary findings of fact made by him. No error of law has been identified.

Conclusion

44. For the reasons outlined above, I would dismiss this appeal.

Lord Justice Lloyd Jones:

45. I agree.

46. Costs of and occasioned by the appeal will be paid by the appellant to the respondent to be assessed by detailed assessment if not agreed.

Order: Appeal dismissed