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Ide v ATB Sales Ltd [2008] EWCA Civ 424

Richard Lynagh QC and Thomas Saunt appeared successfully at first instance and in the Court of Appeal for the Claimant in this case which considers the provisions of the Consumer Protection Act 1987 and the issue of what is required before a Claimant can be found to have proved causation in a case where two or more possible mechanisms of causation are advanced for what has happened. The Popi M [1985] 1 WLR 948 (Rhesa Shipping Co SA v Edmunds) considered.

The Facts

The Claimant sustained serious head injuries in an accident while riding his mountain bike. After the accident the Claimant was found lying unconscious with the bike. The left-hand end of the handlebar had snapped off. Due to his injuries the Claimant had no recollection of the accident and there were no witnesses to the accident itself.

The bike had been imported into the UK by the Defendants and accordingly the claim was based upon the provisions of the Consumer Protection Act 1987.

The issue was whether the handlebar had failed in normal use as a result of a “defect” within the terms of the 1987 Act or whether, as the Defendant contended, the Claimant had lost control of the bike for unconnected reasons and fallen thereby causing the handlebar to break in the fall.

The case involved expert metallurgical, engineering and accident reconstruction evidence and necessitated consideration of the possible relevance of Japanese and British Standards.

The Judge rejected the explanation proposed by the Defendant’s expert and accepted that advanced by Mr. Ide’s engineering expert who was of the view that there had been weakening of the handlebar due to fatigue cracking although subsequent microscopic examination of the fracture surface had not confirmed the presence of fatigue.

Mr. Justice Gray found that there had been a defect in the handlebar which caused it to fracture so that the Claimant then lost control of the bike and crashed. The Judge described fatigue cracking as being “at least a possible cause” of the fracture.”

The Court of Appeal

The Defendant appealed with the permission of the Court of Appeal.

The appeal was heard by Ward, Thomas and Dyson LJJ and judgment was given on 28 April 2008.

The Defendant contended that the Judge had adopted an approach to causation which was contrary to that prescribed by the House of Lords in The Popi M [1985] 1 WLR 948 (Rhesa Shipping Co SA v Edmunds). It was argued that the Claimant had failed to discharge the burden of proof of causation and that, although the Judge had rejected the Defendant’s expert’s contentions the judge should not have found for the Claimant. In particular it was contended that without securing a finding that fatigue cracking was the probable cause of the fracture the Claimant had not established his case.

In dismissing the appeal Thomas LJ (with whose judgment the other members of the Court agreed) held that:

  1. There had been only two competing mechanisms for the failure advanced at trial. Neither was inherently improbable. Accordingly the difficulties encountered in The Popi M did not arise. Having rejected the explanation for the fracture given by the Defendant’s expert, the Judge was fully entitled to accept the only alternative explanation put forward.
  2. The Judge was fully entitled, on the evidence, to find that the handlebar had failed in normal use as a result of a defect. He had not reached that conclusion simply because the presence of a defect was the less improbable of the two competing explanations. Once the theory of an accidental fall had been eliminated all the evidence pointed to the presence of a defect in the handlebar.
  3. Once the Judge had found that there was a defect whereby the handlebar failed in normal use and caused the injury it was not necessary for him to go further and make any finding as to the cause of that defect. Accordingly the Claimant was entitled to succeed in his claim under the Consumer Protection Act 1987.

The judgment is available here.

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