Scottish Court of Session Decisions

"2(1) Where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for the damage.

(2) This subsection applies to -

(a) the producer of the product.

3(1) .... 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 these 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 ....."

"(1) Whereas approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products is necessary because the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property;

(2) Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;

(3) Whereas protection of the consumer requires that all producers involved in the production process should be made liable, in so far as their finished product, component part or any raw material supplied by them was defective; ......

(5) Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances;

(7) Whereas the protection of the consumer requires that the liability of the producer remains unaffected by acts or omissions of other persons having contributed to cause the damage; whereas, however, the contributory negligence of the injured person may be taken into account to reduce or disallow such liability;

(12) Whereas under the legal systems of the Member States an injured party may have a claim for damages based on grounds of contractual liability or on grounds of non-contractual liability other than that provided for in this Directive; in so far as these provisions also serve to attain the objective of effective protection of consumers, they should remain unaffected by this Directive; ......"

"4. The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage.

6.1 A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including

(a)                the presentation of the product;

(b)               the use to which it could reasonably be expected the product would be put;

(c)                the time when the product was put into circulation.

8.1 Without prejudice to the provisions of national law concerning the right of contribution or recourse, the liability of the producer shall not be reduced when the damage is caused both by a defect in the product and by the act or omission of a third party.

13. This Directive shall not affect any rights which an injured person may have according to the rules of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified."

The pleadings

[7] The pursuer avers that there was a manufacturing defect in the nearside rear tyre for which the defenders are in law responsible and which caused his loss, injury and damage. He sets out his lengthy principal case in condescendence 2, p 9C-D to p 13A, as follows:

"The vehicle (including the tyres) was being used at the time in a way in which the consumers (in this case the driver and passengers in the coach) would have expected to be safe. The defect which probably caused the tyre failure which caused the loss of control of the vehicle was a manufacturing defect in the nearside rear tyre. The tread joint on both the outer and inner shoulders of the tyre had opened. That would not have occurred in a tyre which had been properly manufactured. During the moulding and curing process of a tyre a correctly made joint effectively loses its interface and becomes a single homogenous mass. Only if there is contamination on either of the two surfaces when the joint is consolidated after the tread is applied to the casing will an interface remain, with the potential for separation in service. The defect in manufacture caused the innermost facing tread edge to open, thereby allowing ingress of moisture which came into contact with the ends of the steel cords at the belt edges and caused loosening and corrosion of the steel strands within the tyre which should have held it together, but which, by reason of the open joint and the corrosion, were unable to do so. The defect in manufacture also caused the outermost facing tread edge to open, albeit to a lesser extent. There was substantial feathering, which had developed over the life of the tyre by reason of the tread joint having opened. At least four of the steel cords in the first breaker were corroded and loose, and there was localised excessive treadwear and localised excessive smoothing of the rubber topping between the steel belts. The areas of excessive wear around the open tread joint created differential forces between them and adjacent areas of tyre, and led to eventual failure. The open joint was the point at which the tread of the tyre began to strip and come off at the time of the accident. It was probably that defect which initiated the failure of the tyres at the time of the accident. Esto it was the offside tyre which failed first, it is likely that the vehicle would have been able to be brought under control safely but for the additional failure of the nearside tyre. The nearside tyre, having regard to its manufacturing defect, was inevitably going to fail immediately upon the failure of the offside tyre and (on this hypothesis, it did so). There was no material prospect of keeping the coach under control. The defect was such that the tyre would have failed in consequence thereof at some time during its use, irrespective of any other cause. It is further explained and averred that both of the rear tyres, when examined after the accident, also showed signs of having been used in the past while the vehicle was overloaded, or the tyres under-inflated, or both (the signs being similar whichever the cause). In, particular there was (sic) chaffing and grooving and loose wire filaments. Each of these tends to weaken the integrity of a tyre. Any use of the coach during the nine days prior to the accident would have had no material effect on the said state of the tyres. The defenders were aware of the risk of failure of tyres from each of said causes, both as a matter of general expertise and experience, and particularly in relation to the 225/70 R15 tyres fitted to Mercedes 312 Sprinters. In late 1997 it had become clear that there was a material risk of that type of tyre failing and causing accidents. There had been at least 20 such failures by then, and in consequence thereof the defenders, in early 1998, instituted a recall programme of all such vehicles in order to check each of the said tyres. The first defenders were aware of the results of a survey by tyre manufacturers to the effect that the air pressure in 50% of the tyres in Germany was too low. They were aware that overloading of the vehicle would increase the risk of such damage. They were aware that the damage caused by any such under-inflation and / or overloading would be likely to manifest itself immediately, but would do so at an unpredictable later date, in respect that, as they put it in the circular hereinafter mentioned, 'tyres have a "long-term memory" and never forget maltreatment'. The matters set forth in the three foregoing sentences were mentioned by the first defenders in a circular to customers sent by them in August 1997, some months prior to the recall, but in light of their growing knowledge of the failure of some of the said tyres. In response thereto the pursuer believes and avers that the first defenders, at some time (the details of which are not known to him) after the defects became known, significantly increased what they termed as 'the reserve load-bearing capacity of the tyres'. It is explained and averred that the tyre load rating is the same as the plated rear axle weight of the vehicle. The pursuer did not know (and would not reasonably have been expected to know) at the time of the accident that the plated gross weight of the vehicle was 3.5 tonnes and the plated rear axle weight was 2.24 tonnes. After the accident the police weighed the vehicle (without passengers or cargo) at a gross weight of 3.4 tonnes and the rear axle at about 2.28 tonnes. The vehicle, accordingly, was bound, without passengers and / or cargo, to be operating at the cusp of its tyre load rating. Were it to be full of passengers and / or cargo, and / or to be driven with under-inflated tyres, as was reasonably foreseeable to the defenders, the tyres would be likely to sustain damage which was likely to manifest itself in failure at a later, but unpredictable, date. Persons would generally expect that the vehicle would be loaded with passengers and cargo. That would mean that the tyre load rating would routinely be exceeded. Persons would generally expect that, in the period of many months prior to the use on the day of the accident, there would have been occasions when the tyres would have been under-inflated during use. No information, instructions or warnings were given to the pursuer or any of his colleagues in the coach as to any of the risk factors mentioned herein."

[8] An alternative case is pleaded in condescendence 2 at p 13A-B in the following terms:

"Esto it was not the manufacturing defect in the nearside tyre which by itself caused the failure and loss of control (which is denied), the failure was caused wholly or partly by said reasonably foreseeable defects in the tyres. The tyres were inappropriate for the parameters within which the vehicle would be used."

The issues, according to the defenders

[9] Mr Murphy submitted for the defenders that the following issues arose:

(i) In seeking to aver "defect" under the CPA, has the pursuer applied the correct test in law, namely, legitimate public expectation of safety, rather than proof of a defect caused in manufacturing? The scheme of the Act was purely to consider "defective", whereas the pursuer was looking at negligence, which was not the test under the CPA.

(ii) To what extent were the pursuer's averments inconsistent and contradictory, and, if so, to what effect?

(iii) The pursuer's alternative case was as follows: a defect in the tyre arose solely by reason of its under-inflation and/or overloading of the vehicle. Were these averments by themselves relevant? Could these facts result in a defect? So far as information and warnings were concerned, could a failure in either of these respects ever amount to a defect? It was possible to have an item which was prima facie not defective, but which was rendered defective by a lack of information or warning. If under-inflation and overloading were foreseeable to tyre manufacturers, what information and warning should a passenger on a bus be given? A fortiori, what information and warning could a bus passenger be given by tyre manufacturers, absent some knowledge (actual or imputed) on their part of under-inflation of the tyres or overloading of the vehicle? In reality, tyre manufacturers told vehicle manufacturers what the operational parameters were for their tyres and the latter included that in their operations manual for the vehicle so that any user of the vehicle knew of the use to which the vehicle could be put in terms of weights and tyre pressures. Tyre manufacturers could not warn passengers of overloading or under-inflation and the danger of a tyre failing. The CPA provided a test, not of foreseeability on the part of the manufacturer of a product, but of what the public was legitimately entitled to expect in terms of information and instruction. If a load of 20x were placed on a vehicle designed to take a load of 1x, that would be an unreasonable use of the vehicle and the tyres would be expected to fail, so there was no defect. The applicable test had nothing to do with foreseeability and everything to do with legitimate public expectation. The pursuer's alternative case was not that the tyre was defective in itself: the complaint was that the tyre was not safe for the coach. In other words, the tyre became unsafe when attached to the converted, overloaded coach.

(iv) If conversion of the vehicle on its own resulted in overloading, which, on the pursuer's pleadings was a defect, what was the consequence if the tyre manufacturers were not responsible for such conversion? How did that situation impinge on the public expectation test? The public would not expect tyre manufacturers to foresee conversion of a vehicle on which the public might be passengers.

(v) If overloading was a permanent feature of the use of the vehicle after its conversion, what scope was there for disentangling the pursuer's principal case from his alternative case? On the pursuer's pleadings once the vehicle had been converted it was always overloaded on its rear axle, even when empty. The pursuer's principal case was based on a manufacturing defect, but if the reality of the pleadings was that there was permanent overloading after conversion, how was it possible to take the defect case in isolation?

(vi) If disentanglement of the principal and alternative cases was not possible, what was the effect of the pursuer's pleadings? Did they amount to two irrelevant cases, inconsistent cases or contain an alternative case which was weaker in law? The primary submission for the defenders was that both cases were irrelevant and in any event inconsistent.

(vii) If the pursuer's averments amounted to a case that misuse was foreseeable and therefore a defect, was all misuse foreseeable, irrespective of its nature, and relevant, or should one apply under the CPA the legitimate expectation of safety test to determine what was an acceptable degree of misuse? The parameters of public acceptability of a degree of misuse were not categorised. The pursuer had not set any parameters in terms of reasonableness: he did not attempt to deal with misuse, which, under the Act, had to be ignored. In this situation what the pursuer was desiderating was a warranty to the world.

(viii) If the alternative case was predicated on permanent misuse of the tyre leading to tyre failure, how could the averment at p 9E (that the opening of the tread joint on the inner and outer shoulders of the tyre would not have occurred in a tyre which had been properly manufactured) be a relevant averment? It was completely contradicted by the alternative case, based on overloading and under-inflation. That averment had to be looked at very critically indeed because of the use of a future conditional tense in relation the use of the past tense in the manufacture of the tyre. Instead of "would not" it should read "cannot" or "will not" and the words "assuming normal use" should be added.

(ix) Were the pursuer's averments about defect and recall of the tyres relevant?

(1)               The CPA places the onus on a pursuer to aver and prove a "defect", loss and a causal connection between the defect and the loss.

(2)               Under the CPA a defect is only relevantly averred if it is averred that the safety of the product is not such as members of the public may legitimately expect.

(3)               If proposition 2 is correct, it follows that products may contain defects which do not fall within the CPA due to a failure to pass the public legitimate expectation test. Liability was strict, not absolute, and qualified.

(4)               The CPA sets out a defect-based system of liability which is not to be confused with concepts and tests used in a fault system. Foreseeabilty was relevant under section 3(2), but not as understood in the law of delict. Fault required to be eliminated from any consideration whatsoever.

[22] Mr Campbell submitted that the principal case had been adequately set forth in the averments between pages 9D and 11A. The defect was precisely averred between pages 9D and 10D (beginning with the sentence "The defect which probably caused the tyre failure ..."). Those averments set forth a specific defect in the manufacture of the tyre which was going to cause it to fail. That was the reason for the accident. There was a factual dispute between the pursuer and the defenders because the defenders said that the tyre failure was due to overloading and under-inflation. The interface in the tyre, which should not have existed, pointed to a manufacturing defect. The general public would expect a tyre to be manufactured so that it did not blow. It was accepted by the pursuer that there were supervening "defects" caused by overloading or under-inflation. These were different defects. Damage from misuse was accepted, but the pursuer maintained that it was a manufacturing defect which caused the accident. If he was wrong about that, there were other cases averred from p 11A (beginning with the averment "It is further explained and averred that both of the rear tyres") to the end of condescendence 2 at p 13B. If I were against the pursuer on those cases, it was accepted that those averments fell to be deleted. Those averments indicated that the tyres were supplied for an empty van which would be loaded, the conversion occurred and would have been likely to reduce the actual load carried in the vehicle and decreased the prospect of misuse. One was back to what one might reasonably have expected to be done to the vehicle at day one. In Wetherill, EU Consumer Law and Policy, it was stated at page 139, under reference to article 6.1(b) of the Directive, that "a product may be defective where it causes damage as a result of foreseeable misuse".

[23] So far as the alternative case was concerned, it was said that tyre manufacturers ought reasonably to expect that a vehicle will be used when it is overloaded or the tyres under-inflated. The vehicle would support a weight up to its plated rear axle weight. The tyres were only just good enough for a vehicle of this unladen weight and a load in the back was reasonably to be expected, making the vehicle overloaded. The tyres were sufficient for an unladen vehicle, but it was reasonably foreseeable that stuff would be put in the vehicle, making it overloaded. The pursuer maintained that what Mr Campbell called "the overloading failure" was a defect within the meaning of the CPA. Misuse was not only foreseeable, but all but inevitable. The tyres were inappropriate as they were near to supporting only the rear axle weight of the van or coach. The public would expect that the tyres would be able to cope with a loaded van. The pursuer could not specify the parameters. It was necessary to take "a broad axe" approach to what a reasonable person would expect. The circumstances averred in which the tyres as supplied were going to be just enough to support the unladen vehicle when everyone would expect it to be laden amounted to a defect, a fortiori in the absence of a warning. The court might have to consider in due course the absence of warnings in a situation where, as Mr Campbell put it, "we are on the cusp". The alternative case amounted to saying that a reasonably foreseeable risk was itself a defect. The tyres were too insubstantial under section 3(2) (b) of the CPA. It was known that the weight limit would be routinely exceeded. The pursuer did not dispute the applicable law but submitted that the damage had been caused wholly or partly by the defect. What might reasonably be expected to be done with or in relation to the product was a matter for evidence. The defenders accepted that a pursuer would be expected to know the parameters of use. People in the vehicle would expect that the tyres would be manufactured without defects. Non-avoidability had not been a defence in the A case, and equally in the present case it was not a defence in relation to the inadequate parameter aspect, which was a matter of fact and degree.

[24] Mr Campbell did not accept Mr Murphy's criticism of the use of the future conditional tense in relation to the averment at p 9E - "That would not have occurred in a tyre which had been properly manufactured." The pursuer was there saying that no tyre which was properly manufactured would open at the tread joint in the way that this one did. The public expectation was to receive non-contaminated tyres.

[25] Mr Campbell concluded by submitting that the pursuer had averred facts and circumstances habile to a proof before answer, which should be allowed.

Discussion
[26] It is first of all convenient to consider together the legislative provisions about defectiveness. Recital 3 to the Directive recites that the defectiveness of the product should be determined not by reference to its fitness for use but to the lack of safety which the public at large is entitled to expect, and that safety is assessed by excluding any misuse of the product not reasonable under the circumstances. Article 6 of the Directive provides that a product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including: (a) the presentation of the product; (b) the use to which it could reasonably be expected that the product could be put; (c) the time when the product was put into circulation. Article 8 provides that, without prejudice to the provisions of national law concerning the right of contribution and recourse, the liability of the producer shall not be reduced when the damage is caused both by a defect in the product and by the act or omission of a third party. Section 3(1) of the CPA provides, subject to subsection (2), that there is a defect in a product if the safety of the product is not such as persons generally are entitled to expect. Section 3(2) provides that, in determining 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.

[27] It seems to me that the difficulties in this case have arisen because the pursuer's averments are both confused and confusing. It is plain that, for a case such as the present to be relevant, it must aver that the defectiveness test under the CPA has been met. The principal question which arises is therefore whether the pursuer has pleaded a case setting out the general public's legitimate expectation of safety for the tyre in the circumstances. So far as his principal case is concerned, the pursuer has made averments of what he describes as a manufacturing defect and averred that it was, at least partly, responsible for the accident. The nature of the manufacturing defect is clearly specified in condescendence 2 in the passage which I have quoted above. Mr Murphy submitted that a "manufacturing defect" was meaningless under the CPA as it referred to a basis of fault and that, reading the pursuer's averments pro veritate and fairly, at no stage did he seek to aver and prove the defectiveness test applying under the CPA. I think that that submission takes too strict and pedantic a view of the pursuer's pleadings in his principal case. I have difficulty in seeing how, if the court were to find that there were a manufacturing defect such as that averred by the pursuer and that it was at least partly responsible for the accident, it could be maintained that under no circumstances could the court then hold that the defectiveness test under the CPA had been met. Essentially what the pursuer is claiming in his principal case is that a faulty tyre burst and (at least partly) caused the accident. It can hardly be asserted that the public are not entitled to expect that a tyre will not burst due to a manufacturing defect and so cause or contribute to an accident. At this stage the pursuer does not have to show that he is bound to succeed on the basis of the averments which he has made, only that it is possible for him to succeed on the basis of those averments (see Jamieson v Jamieson 1952 SC (HL) 44 and Miller v SSEB 1958 SC (HL) 20). I therefore think that in these circumstances it would be open to the court to hold that the product was defective within the meaning of Article 6.1 of the Directive or that there was a defect in the product within the meaning of section 3 of the CPA. It is true that the pursuer does not in his pleadings use the verbal formula set out in either of these provisions, but in my opinion it is not necessary for him to do so as long as he makes averments of facts which are capable of satisfying the statutory requirement. In my opinion he has done so.

[28] Further, it seems to me that the other matters which are the subject of averment in the pursuer's principal case are matters on which he is entitled to lead evidence before the question of relevancy is determined. I refer here to the averments about overloading and under-inflation. The "use to which it could reasonably be expected the product would be put" (Article 6.1(b) of the Directive) or "what might reasonably be expected to be done with or in relation to the product" (section 3 (2) (b) of the CPA) must be a matter of fact and degree in each case. I therefore accept Mr Campbell's submission that this must be a matter for evidence.

[29] On the other hand, I am satisfied that the alternative case pleaded by the pursuer is irrelevant. Mr Campbell described the alternative case as amounting to saying that a reasonably foreseeable risk was itself a defect. In my opinion a reasonably foreseeable risk cannot amount to a defect in a product within the meaning of section 3 of the CPA or make a product defective within the meaning of Article 6.1 of the Directive. Recital 5 to the Directive makes plain that the defectiveness of the product should be determined not by reference to its fitness for use but to the lack of safety which the public at large is entitled to expect, and, as Burton J pointed out in the case of A v National Blood Authority (supra), liability is defect-based, not fault-based. I agree with Mr Murphy that if the reasoning in the Tesco case were to be applied to the alternative case the defenders would be giving a warranty to the world that the tyres would withstand unspecified misuse over an unspecified period and that that is patently irrational in the context of applying the public expectation test.

Decision
[30] For the reasons given above I shall delete the averments in the pursuer's alternative case from the word "Esto" to the word "used" at p 13A-B and quoad ultra allow to the pursuer a proof before answer of his averments.