Busby v Berkshire Bed Company Litd [2018] EWHC 2976 (QB)

[2018] EWHC 2976 (QB)Case No HQ116P02856IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONDate 9 th November 2018
Before
HIS HONOUR JUDGE COTTER Q.C.
Between
CLAIRE BUSBYClaimantBERKSHIRE BED COMPANY LIMITEDDefendant
Winston Hunter Q.C. (instructed by Simpson Millar) for ClaimantNeil Block Q.C. (instructed by DAC Beachcroft) for DefendantHearing Hearing dates: 16 th,17 th, 18 th, 19 th October 2018
JUDGMENTHis Honour Judge Cotter Q.C. :ContentIntroduction ( page 2 paragraph 1 ) Outline facts ( page 2 paragraph 3 ) Claimant’s case ( page 4 paragraph 14) Defendant’s case ( page 4 paragraph 18) Law ( page 5 paragraph 20) Evidence ( page 5 paragraph 24) Expert Evidence (page 6 paragraph 27) Assessment of witnesses ( page 6 paragraph 28) Overview of expert witnesses ( page 7 paragraph 37) Findings of fact ( page 8 paragraph 41) The Gliders Issue ( page 13 paragraph 64) The cause of the accident ( page 19 paragraph 99) Liability ( page 24 paragraph 130) Conclusion ( page 28 paragraph 155)Introduction
[1]The Defendant company sells beds. It operates from premises at a shopping centre in Maidenhead under a “ Beds are Uzzz” franchise. It purchased beds from Kozee Sleep ( Midlands) Limited, but branded them under its own name. The Claimant (who shall refer to as “Ms Busby”) purchased such a bed; a double divan.[2]On 15th of August 2013 Ms Busby fell off the end of the bed sustaining devastating personal injury. It is her case that the accident was caused by a defect in the bed, alternatively that the construction of the bed was in breach of the contract between the parties and/or that the Defendant was negligent in relation to the supply and assembly of the bed. This is the judgment upon the liability issues within her personal injury claim against the Defendant. Outline facts[3]On 23 July 2013, Ms Busby ordered five beds from the Defendant company. These consisted of four single beds and a super king size double divan (‘the divan bed’). On 4th August, she also purchased 4 headboards for the single beds.[4]The divan bed consisted of; (a) Two ottoman divan bases which were designed to be joined together and retained in place by a clip over the edges of the two bases and a screw through the lids. The main attraction of ottoman bed bases is their storage capability. The lid of the divan base is designed to be lifted, with the assistance of gas struts taking the weight of the mattress, revealing the storage space.

(b) A Naturelle 120 mattress

[5]The divan bed is designed to accommodate castors or “gliders”( in effect a foot with a smooth base, which unlike a castor cannot be wheeled) underneath the bed, the effect of which is to raise the bed base by 40 mm off the floor.[6]On 7th August 2013, the beds which had been ordered were delivered to Ms Busby’s home at Rosewood House, Maidenhead, about two miles from the Defendant’s premises. Two employees from the Defendant company, Mr Jones and Mr Ford, attended to deliver and assemble the beds.[7]What happened during that delivery on 7th August 2013 and the exact condition that the divan bed was left in by the Defendant’s employees, were areas of factual dispute at the heart of the case.[8]Ms Busby slept in the divan bed between the 7th and 15th August 2013. For two nights she was joined by her partner Mr Marshall. Neither she or Mr Marshall noticed anything untoward with the bed.[9]On the evening of 15th August 2013, Ms Busby was having sex with Mr Marshall on the bed. She fell from the end of the bed onto her head, bending her neck, in the course of which she suffered a bilateral dislocation of C4 on C5 resulting in tetraplegia. She was left at the foot of the bed, partially leaning against it and unable to move.[10]Two paramedics, Ms Caroline Edwards and Mr Ludwig Holzer attended the scene as an emergency. Thereafter they were joined by other ambulance staff. The bed was split into its two component divans to allow better access to Ms Busby and she was taken from the property.[11]Ms Busby remained critically ill from many months. In December 2013 her sister Natalie returned to the property, which had remained empty save for the presence of a builder/handyman, Mr Hazier, who had been living in an annex. When she entered the bedroom she noticed that the bed was not even across its width due the fact that the two gliders which should have been at the base of the left-hand divan, were missing. She reported this back to Ms Busby.[12]Ms Busby blames her accident upon the defective nature of the bed, specifically that it was missing two gliders, and on 19th October 2015 (more than two years after the accident) a letter of claim was sent to the Defendant. Liability was denied. Specifically, it was denied that the divan bed was left in Ms Busby’s house with two gliders missing and, even if it was, that the missing gliders were not the cause of her fall from the bed. Subsequently on 12th August 2016 proceedings were issued.[13]Determination of the issue of liability requires consideration of disputes as to fact and the application of settled legal principles to the facts as found. I shall briefly outline the respective cases as to what lead up to the accident and how it occurred. Claimant’s case[14]It is the Claimants case that there were problems with each of the beds which were delivered. One of the children’s beds opened up the wrong way ( i.e. the storage space was not accessed in the manner requested) and there were problems with fixing all of the headboards supplied. So the delivery faced problems. The divan bed was assembled last. Mr Jones and Mr Ford refused to fit a headboard which Ms Busby had purchased from another source. There was a problem with “some of the feet” on the bed. Although he was only fourteen, Ms Busby’s son Samuel Nash was asked to sign for the beds and was informed that there was a problem and that the men would come back. He did not give much thought to the problem with the “feet” and did not tell his mother.[15]Ms Busy employed two maids/housekeepers Ms Martin and “Aneta”, who made the divan bed up. Neither appears to have addressed their minds to the missing “feet”; but Ms Martin recollects that the divan lid did not open properly (as she attempted to store some clothes/shoes) as the two sides did not lift up as one. This means that the screw which should have connected them was missing.[16]Neither Ms Busby or Mr Marshall noticed any problem with the bed despite the fact that the missing “feet”, which were in fact missing gliders, meant that there was a difference in level where the two sperate divans joined (which tapered from no difference in level at the head end to a significant step at the foot of the bed). The bed also sloped. Whilst having sex Ms Busby was in the process of repositioning herself on the bed when she fell due to the difference in level. Her weight was placed on the end of the mattress in the location where there was an absence of the expected support. So the missing gliders caused or materially contributed to her fall from the bed.[17]When the bed was eventually examined after the accident it was found to be missing not only two gliders but also one socket which would house a glider. Defendant’s case[18]It is the Defendant’s case that all four gliders on the left-hand base, and those on the right-hand base were properly installed; there was no absence of a socket housing at the time of delivery and assembly. The bed was not left sloping. When left by the Defendant’s employees, the two component divans were not left free to move relative to each other, the lids were secured by the appropriate metal bolt. Further the bases were secured by at least one metal clip. The Defendant is unaware, so has no positive case, as to who may have removed the items about which the complaint is made either before or after the accident.[19]So the bed was not left with the alleged defects and even if it had been it was not the cause of the accident. The simple fact is that Ms Busby leant too far backwards off the bed and lost her balance. Law[20]The causes of action advanced by Ms Busby require the application of settled legal principles to the facts. The claim is pleaded in contract, in negligence and pursuant to the Consumer Protection Act 1987.[21]As for the claim that the Defendant is liable by reason of the provisions of the Consumer Protection Act 1987 it is common ground that the Defendant was not the manufacturer of the bed in question. However, it branded the beds as its own and, as such, had a potential liability as a producer of the goods pursuant to the Consumer Protection Act 1987. Ms Busby contends that the divan bed as supplied was defective within the meaning of section 3 of the Act. Although a number of ‘defects’ in the bed as supplied were pleaded, the only defect that is material for the purposes of the causation of Ms Busby’s injury is that relating to the missing gliders. The Act does not require that she proves foreseeability, provided that she establishes that the defect ‘caused’ in the sense of materially contributed to the fall from the bed.[22]The claims in contract are brought under the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. It is common ground that the contractual relationship gave rise to duties under both Acts. It is Ms Busby’s case that the absence of the gliders was not a trivial defect but instead rendered the bed not of satisfactory quality. Further, failure to supply and fit the gliders placed the Defendant in breach of its duties pursuant to section 13 of the 1982 Act in that, the said service was not carried out with reasonable skill and care as was expected.[23]The pleaded case in negligence is founded on the Defendant’s failure to inform Ms Busby of the fact that the gliders to the left-hand divan had not been fitted. Had such information been provided, she would have been aware of the difference in level between the divans and effect on the stability and firmness of the mattress (in particular at the foot of the left-hand divan in the area where it abutted the right-hand divan). Evidence[24]I heard oral from Ms Bubsy and from Natalie Busby ( her sister), Catherine Busby ( her mother), Sharon Martin ( her housekeeper), Samuel Nash (her son) and John Marshall ( her partner). I also heard from the two paramedics who attended the scene of the accident, Ms Edwards and Mr Holzer.[25]Mr Hazier, who was Ms Busby’s handyman, now living in Scotland, did not attend trial as was intended/hoped. A civil evidence act notice was produced supported by a statement from Mr Clayton, the solicitor with conduct of the case on behalf of Ms Busby.[26]On behalf of the Defendant I heard from Mr Vittozzi, the shop manager, Mr Manders (a director) and Ms Zahoor (a director of Kozee Sleep; the manufacturer). I also heard from the two employees who attended at the house and installed the beds; Mr Jones and Mr Ford. Expert evidence[27]I also heard evidence, consisting of reports, a joint statement and oral evidence from two consulting engineers, Mr Glenn instructed by Ms Busby and Mr Barbour instructed by the Defendant. Assessment of witnesses[28]The lay witness evidence contained significant areas of dispute.[29]Generally speaking it is necessary, when considering the oral evidence of the witnesses whose evidence as to fact is challenged, to bear in mind, amongst other matters, the circumstances in which they came to give their statements, internal consistency, external consistency with documentation of the evidence of other witnesses and inherent plausibility. There are many reasons why testimony may not be correct and reliable; even when honestly given.[30]So what of the evidence of the key witnesses?[31]Ms Busby’s recollection of events, as set out within her pleaded case, witness statement and oral evidence were not consistent as to what happened on the day of delivery or the day the accident. Given the severity of her injury, and that she did not even begin to consider the bed as implicated in her accident until December 2013 (four months post accident), that she cannot accurately recall certain events is entirely understandable. However, a lack of internal consistency of her accounts once she has tried to remember matters is obviously significant.[32]Samuel Nash was just over fourteen years of age at the time. His statement is dated 8 June 2017; so approaching four years post accident. The letter of claim, which was itself over two years post accident, had stated- “the delivery men confirmed they would be back the following week. They did not mention any problem with the claimant’s double bed or the fact that there were two castors missing on the right-hand side divan at the foot of the bed.” However Samuel Nash’s witness statement as confirmed in his oral evidence was that he was told by the delivery men that- “..there was a problem with my mum’s bed in that two feet were missing at the bottom of the bed”[33]Such a significant contrast between how the case was initially put and subsequently advanced is always of concern. Given the inability to fully explore what was stated/known by the legal advisors before the letter was written, analysis is often unsatisfactory. It meant that Mr Nash’s evidence had to be all the more carefully considered.[34]The Defendant was not put on notice of the claim until October 2015 well over two years after the accident. Only after this did investigation of the matter begin.[35]Given the elapse of time it is wholly understandable that Mr Jones struggled to accurately remember the day of delivery. He was not employed by the company for a long period of time and was first asked to recollect the events years after their occurrence.[36]Mr Ford had some recollection of the delivery; for example, he remembered the road Ms Busby’s house was on as it used to be the site of a public house where his father drank. However the rest of his recollection must again be taken in the context of the fact that he was first asked to remember the events years down the line and that save for the fact that there were problems with the children’s beds (such problems being a matter of record) there was nothing else exceptional about this delivery as opposed to the many hundreds of other deliveries he had undertaken in the area over years of employment. Overview of Expert witnesses[37]This case did not constitute Mr Glenn’s finest hour in terms of expert evidence provided to a court. His first (and served) report following an inspection at Ms Busby’s home on 9th May 2017 contained serious flaws. He had failed to observe marks made by the clips which join the two divan bases to form a single bed, stating that “I was not able to detect marks” such marks being present as he later agreed). He also failed to consider if there were any marks inside the remaining empty socket yet stated “ in my opinion the remaining socket has never been used”. He opined “ it is not impossible to remove a glider, but the socket would have to be removed in order to do so”; which he later conceded is not the case.[38]I found Mr Glenn’s evidence as to how Ms Busby could have fallen off the end of the bed if she had been kneeling in or towards the middle of the bed, as she had stated she was, to be confused and confusing. He relied upon forward momentum which, given the circumstances, is not only very difficult to understand as a general concept but also does not tie in with Ms Busby’s evidence that she fell (or rolled) backwards off the bed and her feet came up in the air. It is not the role of an expert to try and support the witnesses evidence as to fact; rather to give objective and impartial assistance to the court upon a matter of expertise. The reality of this case is that whilst Ms Busby may have remembered being at or towards the centre of the bed, she could not have fallen in the manner she described had this been the case. Indeed for her hand to be at the point of greatest difference in level between the divans (which was also part of his hypothesis) it would have to have been very close to the edge of the bed and the Claimant gave evidence that the hand when it was placed down was not far from her body. In so far as Mr Glenn gave evidence in relation to the mechanism of the fall I do not believe it is proper to place any significant weight upon it.[39]Save as to mechanism of the fall, Dr Barbour and Mr Glenn reached agreement within the joint statement on the majority of the matters upon which they could properly give evidence. At a joint inspection of the bed on 4th April 2018 the six gliders fitted to the divan bed were examined. Two of the gliders fitted to the right-hand base unit were removed from the sockets by pulling them, leaving the sockets attached to the base unit. This was contrary to what Mr Glenn had said was possible in his first report. When each of the remaining gliders were pulled from the bed, the socket also came out.[40]The experts also agreed that(a) inserting a glider into the socket creates marks on the internal face of the socket. None of the sample sockets had internal marks as received, but each was marked after a glider had been inserted and removed. The vacant socket attached to the left-hand base unit of the bed had internal marks consistent with a glider stem having been inserted.(b) The marks on the left-hand base unit were consistent with clips having been present when the divans were the same height.(c) Taking into account the compression of the mattress, the slope caused by the lack of gliders would have had little effect upon the tipping point of a rigid body lying on the mattress. Findings of fact[41]I make the following findings of fact. I start with some discrete issues.[42]At the date of delivery Ms Busby was in the process of moving back into her home at Oakwood after separating from her husband. She needed to refurbish the property and as a result had purchased the beds from the Defendant. It was a very busy, if not hectic time for her.[43]The beds had not been assembled at the premises of Kozee Sleep Limited. I accept what Mrs Zahoor told me as entirely accurate. Gliders are not inserted into the divan bases, but the holes for their sockets are pre- drilled and the sockets themselves placed in the frame. As she set out- “To ensure that the sockets in the holes are clear we check each hole with a glide that is grounded down at the end to be able to insert it into the hole to check the whole is clear. The principal reason (for) the grinding down (of) the end of the test glide is so that it does not lock into the socket as the glide are designed to do”[44]Also within the process of construction fabric is stretched over the hole were a screw has to be fitted when the bed is assembled. So this part of the bed is not pierced at any stage of assembly of the product prior to being sent to the customer.[45]As Mrs Zahoor accepted, on occasions the correct number of gliders were not packaged with the bed. This could be because of a simple mistake in packaging together the components that went with the bed. To cater for this eventuality the company supplied what were described as “first-aid kits” to their customers which included spare gliders.[46]As the records confirm the beds in question were supplied by Kozee Sleep Limited to the Defendant on 7th August i.e. the day of delivery to Ms Busby’s house. They may have been held for a short time in the Defendant’s premises or loaded directly onto the Defendant’s van. In any event no prior assembly took place.[47]On 7th August 2013 Ms Busby was given a delivery slot between 3.00 pm and 5.00 pm. Mr Ford called Ms Busby to say that they were about to arrive at 4.54 pm; so just within the delivery period.[48]In her witness statement dated 25th of August 2015 Ms Busby set out a recollection of the date of delivery at paragraphs 8, 9 and 11. She appears to be referring to a conversation with the Defendant’s employees. However, in the Particulars of Claim (paragraph 20) dated 9th December 2016 it was specifically pleaded that Ms Busby was not present at the delivery address when the beds were delivered and installed or when the employees left the property. In the response to a request for further information dated 6th June 2017 it was pleaded that- “.. Claimant did not deal with the defendant’s employees when they attended her home”. Such matters could only have been pleaded upon specific instructions and directly conflict with both the witness statement and her oral evidence which dealt with her interaction with the employees in greater detail.[49]I accept that Ms Busby recognised Mr Ford as someone who had worked in the same road as her and there was a brief conversation. Ms Busby was in and out of the house that day probably being present on two occasions during the time when Mr Jones and Mr Ford were present. As for the content of the conversation Ms Busby can recollect being told something was wrong with all the children’s beds and they ( Mr Jones and Mr Ford) could not fit the headboards as they did not have the equipment and there was nothing in the van, but they would complete everything when they came back. She can also recollect a conversation about the headboard in her room and that Mr Ford and Mr Jones would not attach it to the wall as it was not supplied by the Defendant and there was a risk of damage.[50]I prefer the evidence of Ms Busby, who was quite certain on the issue, that she did not instruct Mr Jones and Mr Ford that her bed should be left in the middle of the room; rather it should be pushed towards the wall. I also prefer the evidence of Ms Busby that she was not shown how the bed worked i.e. there was no demonstration. Again, she was quite certain about this. It may well be, given the number of deliveries he made each week that Mr Ford, who was first asked to recollect the delivery years after the event, is mixing up aspects of this delivery with other deliveries. Certainly, he was wrong about the presence of a lift in the property, which indicates some degree of conflation.[51]Ms Busby’s son Samuel Nash, who was then aged 14 years and just over a month (he was the eldest of her four children) was in the house at the time of delivery. He can remember (correctly) Mr Ford and Mr Jones arriving in a Luton van.[52]There is a dispute of fact as to what he witnessed in respect of the delivery. He remembers that the men attending struggled at first with the large mattress and then the other mattresses. I find as fact that Mr Ford’s usual practice was not followed and the single beds were erected first. I accept the evidence of Samuel Nash that he can remember sitting on his new bed watching Star Wars as the other beds were erected. That the childrens’ beds were erected first is consistent with conversation between Mr Ford and Ms Busby taking place, but with her not being present after the double bed was erected.[53]Given the time of arrival it is also consistent with timings as Mr Ford spoke to Mr Vittozzi in the office because it was noticed that the orientation of the opening of one of the single beds was wrong. This was probably before 5.30pm (although the manager often stayed on to 5.45pm and sometimes as late 6.00 pm).[54]So if the divan bed was erected last then it was probably well after 5.30 pm and Mr Vittozzi would not be not in the office so there was nobody to answer the phone if Mr Ford wanted any further help.[55]At some stage after the bed was delivered Mr Max Hazier who was employed by Ms Busby to undertake general renovation works at the property put the headboard up in Ms Busby’s bedroom. In his witness statement he stated that he did not have any particular recollection of the job as it was normal straightforward apart from recalling that when undertaking the work he accidentally hit the panic button which was situated to the right-hand side of the bed. He took a photograph of the bed and headboard after completing the work. In passing, I observe that it is of some significance that the photograph shows bedding which obscures the foot of the bed (given that Ms Busby stated that she would not have made the bed rather that would have been a task for her employees).[56]Mr Block Q.C. submitted that Mr Hazier could not have failed to notice if gliders were missing as he moved the bed; yet he did not mention this in his witnesses statement (and did not attend to give oral evidence).[57]Mr Block Q.C. also submitted that anyone making the bed could not have failed to notice the difference in level; yet there was no evidence of this; including from Ms Martin who did deal with the bed when she put shoes inside storage unit.[58]Ms Martin gave evidence that she was expecting the lid which lifted to be one solid piece, but that when she and her fellow employee Aneta lifted it up she found that there were two separate lids that were not connected. This is consistent with the screw that should be present not being there, and I am satisfied that it was not present at that time (which Ms Martin could not be more specific about). However, she did not recall seeing any feet missing from the left-hand side of the Divan. Given that she would have had sight of the bases in order to lift the lids (and also when the lids were open) it is somewhat surprising she did not notice, and now still remember, the very strange feature of a significant difference in level. Mr Hunter Q.C. submitted that it may be that Ms Martin and Aneta simply thought this is how the bed was i.e. that Ms Busby knew about it. However, given what she recollects i.e. that she thought it was strange that the lid was not a single piece, this does not easily explain how she did not notice what was an obviously strange factor.[59]The bed was then used by Ms Busby who would have slept on the right-hand side of the bed when on her own. Mr Marshall also slept in the bed for two nights. Ms Busby believes that it is likely that they would have been intimate during this period; and no doubt the bed clothes would be moved around; but neither she nor Mr Marshall noticed anything untoward about the bed. Given that there was, on Ms Busby’s case as now advanced, a ridge along the centre of the bed where the two divans joined; progressing from no difference in level at the head end through to 40mm difference at the foot; this is somewhat surprising and shows sensitivity very far removed from that of Hans Christian Andersen’s princess. In any event it is clear that when using the bedroom and sleeping on the bed neither Mr Marshall or Ms Busby became aware of any missing gliders or difference in level in the bed. That they did not do so contrasts sharply with the evidence of Samuel Nash that it was immediately obvious to him when he entered the room on the night of the accident.[60]The accident occurred at 10.33pm (as recorded on contemporaneous medical records)[61]When Mr Holzer, the ambulance paramedic, attended at 10.41pm he was told that Ms Busby had fallen off the end of the bed and landed on her head in the position she was still in; which was with the back of her head against the base of the divan and lying on her right side, almost in a foetal position, with her legs and feet pointing towards the window.[62]He immediately recognised the severity of the position and after giving pain relief assessed with his fellow paramedic Ms Edwards how they were going to move Ms Busby. They decided to use a scoop, but due to her position the bed had to be moved. He recollected that staff then present (a second crew had arrived; so there were five paramedics in all) took the mattress off the bed and pushed it against the wall and they then moved the divan nearest to her head; being the left-hand divan; and then the right-hand base. He had no recollection as to whether any castors were missing and confirmed that they would not have needed to remove them. The whole process of removing Ms Busby was a difficult and delicate exercise and took until 12.11 a.m.[63]During the process Samuel Nash came into the bedroom and saw his mother lying injured at the foot of the bed. As I have already indicated he stated- “the left side of the bed was sitting on the floor and lower where mums head was. Her head was resting on the floor against the bed and she was in shock trying to talk but unable to move. I clearly remember this image, her face the room and feet missing on the bed.” In his oral evidence he stated “I remember as clear as the day, the divan was sitting on the floor” This would have been a terribly distressing incident for this 14 year-old boy and no doubt one he has thought about over and over in the years that have passed. It is concerning that he states that he could see the left-hand side of the bed was lower when Ms Busby and Mr Marshall who had been sleeping on the bed had not noticed it and also, as the photograph taken by Mr Hazier shows, any bedding would probably have obscured the foot of the bed. Indeed nobody else present at the accident scene remembers the left-hand bed being lower or that castors/gliders were missing. I also note the comments in his witness statement that- “It’s only after the accident that we discovered the feet on one side were missing…..”, yet on his recollection elsewhere he stated that it was immediately apparent when entering the room. In his oral evidence he said that Natalie found out that the gliders were missing. Mr Nash left the property that night and has not been back for two to three years until 2015 when he spoke to solicitors. I find that his recollection of noting the absence of gliders is not reliable. That brings me to a central issue of fact. The gliders issue (were all gliders present when the Defendant’s employees left on 7th August 2013?)[64]This was a central issue of fact. Given its importance I will set out the respective cases.[65]The Claimant’s case is that it was probably well after 5.30pm when it was appreciated by Mr Ford and Mr Jones that they were a glider short. It is possible that either they appreciated this after the other seven gliders had been inserted or when it was appreciated they were one short they pressed on to insert the others as it was thought there was a spare one in the van.[66]Mr Ford states that had they been a glider short then he would have cannibalised one of the single beds to gain one. However, this cannot be right. The children’s beds were needed, and, in the case of the beds in the room of the twins, not easy to access. It also would have required two gliders to be removed so the bed could rest on the floor at one end. By far the simplest thing to do was to remove one glider on the divan bed so one end could rest on the floor. It is common ground that to remove a glider, force is required and that there is a risk that the socket will come out as well.[67]The absence of a glider and the need to, in effect, backtrack is also consistent with the fact that the fabric was broken where the screw was inserted to combine the lids.[68]Mr Ford and Mr Jones knew they would have to come back within a relatively short period to replace the bed that did not open in the correct orientation and also to fit the headboards; so adding on the need to fix two gliders was probably seen as something that could be completed at that time. As it was late in the day there was probably nobody in the showroom to contact, and given that they were to return it is unlikely that a return trip to fetch a glider was seen as an attractive, if feasible, option.[69]Mr Ford mentioned the problem to Samuel Busby. In his witness statement Samuel Busby stated- “I remember very clearly that there was a problem with one of the twin’s beds. It had a storage lid which did not pop up properly. I also remember there was a problem with some of the feet on the beds. They were going to have to come back with replacement or missing parts but I cannot remember the specifics of the problems as there were a couple of problems with the beds. I recall that there were no problems with mine on my sister’s beds but there was a problem with one of the boy’s beds and I remember something about the headboards but not the specifics. I also remember that there was a problem with my mum’s bed in that two feet were missing at the bottom of the bed…….. My mum was aware the bed company had to come back as there are a few things wrong with the beds. I did not say anything to mum about the feet missing from her bed. This is because there were a number of problems with the beds and it didn’t occur to me to mention it. It is only after the accident that we discovered the feet on one side were missing and mum are not known anything about the missing feet before the accident.”[70]So that the gliders were not present when Mr Ford and Mr Jones left on the 7th August is consistent with; a) The evidence of Samuel Busby; b) The evidence about the difficulty opening of the lids in the days between the delivery and the accident; c) The ease with which it appears the paramedics were able to split the two bed bases after the accident. There has been no mention in any evidence of the need to remove a screw between the two beds; d) The combined view of the lay and expert evidence that significant tensile force is required to pull a glider out of the socket once installed and that during/as a result of this process the socket sometime comes out as well; e) The inherent implausibility of someone choosing to remove and not replace two gliders before or after the accident for no good reason. If a glider was pulled out by accident it could simply be replaced; f) The fact that nobody has mentioned, or found, gliders or a screw left in the bedroom at any stage.[71]Although Mr Ford and Mr Jones were adamant that they would not have left the bed without gliders at the base it would still have been usable and they intended to return within a short period.[72]It was the Defendant’s case that the evidence established that the first time the bed was assembled was at Mrs Busby’s home. Further, that it is clear that the bed was assembled at some point when it was level. This is proved by the fact the screw was inserted, which required the beds to be level and that the marks made by the clips which were consistent with the bed being level.[73]Gliders were placed into the sockets on the foot of the bed. This is proved by the fact that a socket was removed (requiring significant force through pulling it out with a glider) and the marks on the inside of the remaining socket being consistent with a glider having been inserted. Such marks would not be likely to be consistent with the use of a ground down glider (as described by Ms Zahoor), which was used to test the socket was clear as it was not likely to mark the end of the socket upon which the end of the glider bit (if it did then it would risk becoming caught with each test; hence the fact that it had been ground down).[74]The argument that there were insufficient gliders does not account for the fact of such assembly.[75]Mr Ford and Mr Jones gave clear evidence as to what occurred on the day of the delivery which cannot be explained away on the basis that they are likely to have forgotten what occurred with the passage of time. It would be, Mr Block Q.C. submitted, such a “bizarre situation” and a “unique act” had they placed two gliders into the divan when it was on its side, then assembled it so that the bolt is placed through the fabric; then for the gliders to be removed. Indeed it would have been so unusual that to have omitted it from the evidence would only be consistent with deliberately misleading the court for some reason (neither man remaining employed by the Defendant).[76]Samuel Nash is simply wrong in his recollection of mention of a problem with the gliders. As a I have already set out when the letter of claim was sent on 19 October 2015 it stated- “the deliveryman confirmed that they would be back the following week. They did not mention any problem with the claimant’s double bed or the fact that there were two casters missing on the right-hand side the divan at the foot of the bed.[77]Mr Block Q.C. submitted that it was not for the Defendant to prove what had happened after delivery such that the gliders were not in place at the time the bed was inspected by Natalie Busby in December 2013. However, he pointed out that there was the “intermediate act” of Max Hazier ( who had failed to attend court to give oral evidence) who had to move the bed to fix the headboard, and he suggested that it may well have been that Mr Hazier removed the screw to enable him to do so. This would be explained why was difficult for Ms Martin to lift the lids as she described. He also suggested that someone could have used the gliders and handles when moving the bed, pulled one or both out in the process. The court’s approach.[78]In a case such as this the civil "balance of probability" test meant that the court has to be satisfied on rational and objective grounds that the case advanced as to the cause of the accident is stronger than the case for not so believing. This requires careful analysis of the arguments for and against the suggested explanations having regard to the totality of evidence including any gaps. At the end of any such systematic analysis, the court has to stand back and consider whether it is satisfied that the suggested explanation was more likely than not to be true.[79]I have taken the time to set out the respective submissions as it can be seen that each has force and the court’s task is not an easy one.[80]When approaching the evidence from a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may, but does not necessarily mean, that the rest of the evidence is unreliable. There are a number of reasons why an incorrect element has crept in. Apart from the obvious loss of recollection due to the passage of time, there may be a process of conscious or subconscious reconstruction or exposure to the recollection of another which has corrupted or created the recollection of an event or part of an event.[81]The court must also have regard to the fact that there can be bias, conscious or subconscious within the recollection process. When asked to recall an event that took place some time ago within the context of criticism people often take an initial stance that they cannot have been at fault; all the more so if the act in question was in terms of their ordinary lives; unmemorable. There is a tendency to fall back on usual practice with the tell-tale statement being “I would have” rather than “I remember that I did”.[82]To approach the exercise of fact finding when faced with stark conflicts in witness evidence as necessarily requiring all the pieces of the jigsaw to be fitted together is often both flawed and an exercise in the impossible. This is because pieces of the jigsaw may be wrong, distorted to a greater or lesser degree or absent. Indeed, it is not possible to make findings if the state of the evidence or other matters mean that it is not proper to do so (see generally Rhesa Shipping Co SA v Edmunds (The Popi (M) [1985] 1 W.L.R. 948). However, often a sufficient number of pieces may be fitted together to allow the full picture to be seen. This the case here. Conclusion on the “gliders issue”[83]I start with the evidence of Samuel Nash. He has a memory of certain events which is certain and correct. He can remember the Luton van Mr Jones and Mr Ford arrived in. He can remember signing for the beds, itself unusual, and is accepted from the company’s perspective as an inappropriate act. He can remember sitting on his bed watching the film “Star Wars” as the men were assembling the other beds. He can also remember that the men mentioned that there was a problem with the feet of his mother’s bed. He was confident and certain on these issues. That he was told there was a problem is entirely consistent with him being asked to sign for the beds because it was presumably expected that he would communicate on the problem to his mother. However, the difficulty with asking a 14-year-old boy to sign for the beds, without making any note on the documentation about the problems, is that he may well not think it an important issue or forget to do so. In my view this what happened.[84]As I have set out I do not accept that his memory of seeing the feet missing at the end of the bed when he saw his mother immediately post accident is accurate. It may be that as he had a memory of been told by the men of the problem with the feet, perhaps seeing the problem when they did so, he has transposed this onto the terrible image of seeing his mother on the floor as a false memory. That is mere speculation. However, I have already set out just because an element of honest recollection is not correct does not mean that the rest is axiomatically unreliable.[85]I do not think that either Mr Jones or Mr Ford had a particularly good recollection of this delivery. Mr Jones admitted as such. Mr Ford made significant errors that showed conflation with other deliveries; such as the fact that he remembered there being a lift. He recollected- “I recall noticing a small personal or disabled lift in the premises and I was told we could use it. However it wasn’t suitable” There was no lift.[86]I find that Mr Ford’s recollection was in a large part, but not wholly, based upon what he ordinarily did or thought he would have done in the circumstances; such as in relation to the order in which the beds were erected (in respect of which I prefer the evidence of Samuel Nash given his clear memory of sitting on his bed). I also much prefer the evidence of Ms Busby that she was never given a demonstration of how the bed worked. Again this does not mean that the whole of his evidence is unreliable, just in respect of particular, albeit in this present case very important, issues.[87]This was the last delivery of the day, relatively late and it was problematic. Headboards to the children’s beds could not be fitted. One bed opened the wrong way. These matters require the phone call back to the shop and recognition that the job could not be completed and returned visit was necessary. The delivery had already gone wrong before assembly of the divan bed commenced.[88]I also find as a fact that there was a problem with what Samuel Nash is referred to as “the feet” of the main (his mother’s) bed. This is a crucial finding of fact and I have considered all relevant matters long and hard before arriving at it.[89]As a result, I find that it is not the case that eight gliders were fitted to the bed when Mr Jones and Mr Ford left. Rather I find as a fact that the left-hand base was resting on the floor and the bolt and clip connecting the two divans had been removed. Whatever the problem was it could not be rectified, and Mr Ford intended to deal with it upon his return in the near future. The only difficulty in the interim would be a step between the two divans and it would be difficult to lift the lids. I am sure he did not consider for a second that there was a safety issue. He had already had to recognise that his company had made mistakes in respect of the supply the beds; this was just an additional element.[90]I fully recognise that this finding leaves a number of issues unanswered. However, as I have stated it is not always possible to fit neatly together all the pieces of evidence presented to you as a Judge. I could only speculate as to why they do not do so. It may well have been that there was a glider short in the packaging; it is conceded that this happened on occasions. Contrary to what I was told by Mr Ford on this occasion there may not have been a spare glider in the van.[91]It may be that seven gliders were fitted before it was appreciated that there was not an eighth in the packaging or on the van. It may have been that an initial attempt was made to assemble the bed with seven gliders; perhaps after the glider was taken out of its socket at the outside corner of the base and put into the inside socket as it would be by the joined the beds. It could be that the marks seen by the experts in the socket that remained on the base of the left divan, whilst consistent with a glider having been inserted, were also consistent with marks left by the testing “ground down” glider. It may be the sockets supplied to the experts had not been tested. One or more of the suggestions may be correct; but it would be wrong to equate speculation with an adequate basis for a finding. Rather I have carefully weighed up the evidence against the findings that I have made and Iremain satisfied on balance of probabilities that I am correct.[92]It is strange that in the absence of Samuel Nash telling anyone what Mr Jones and Mr Ford had said that the fact that the base of the left-hand divan was resting on the floor was not discovered. However, this is not what could be considered an “average” household at the material time. Ms Busby was in the process of moving into the property and had two new “maids” ( Ms Martin and Aneta). The maids may not have known that Ms Busby did not appreciate the left-hand divan was sitting on the floor; indeed a quite ordinary presumption would be that she did know. Ms Busby for her part did not make beds and as the photograph taken by Mr Hazier shows the foot of the bed was obscured. When she slept on the right-hand side of the bed it would have felt normal. When he slept on the left-hand side divan Mr Marshall was sleeping on an unfamiliar bed. He just did not notice a slight slope. When engaged in intimacy and/or crossing over from one side of the bed to the other neither Mr Marshall or Ms Busby noticed a gap between the divans which at the head end was largely ameliorated by the mattress.[93]I repeat that I am surprised that Ms Martin did not notice or comment upon the difference in level when placing the shoes in the divan; but it appears that her concentration; as result her recollection; was focused upon the difficulty in lifting the lids.[94]I am also surprised that Mr Hazier does set out any recollection that that the left-hand divan was resting on the floor within his witness statement (which is all the evidence that I have given his non- attendance). However, there may be a number of reasons why he does not recollect this and I am not prepared to speculate further.[95]That the gliders were not present at the time of the accident would be consistent with Mr Jones and Mr Ford not having left them in place. It is difficult to understand why anyone would have removed them intentionally and, given the effort required, to have done so accidentally. If one or more had been removed accidentally then they could have been replaced relatively easily. It is also of some significance that no displaced gliders or the removed screw where ever found at the property. If there was one glider short and the glider and the socket came out together (i.e. with a glider jammed in the socket) then one can understand why Mr Jones and Mr Ford left no spare glider to await their return. Why they took the screw I cannot say.[96]That the gliders were missing means that it was relatively easy for the two divan beds to be separated by the paramedics. No significant difficulty in this exercise was recollected by anyone.[97]So, I find that time of the accident the two gliders were missing on the left-hand divan.[98]Of course, the cause of the accident itself could be weighed into the fact finding exercise. If the accident was only, or more probably, consistent with the bed having no gliders on the left hand side then this would also have supported such factual finding that they were absent. However, for reasons which I shall now set out, this is not the case. The cause of the accident[99]Understandably, as soon as her head had hit the floor, Ms Busby’s only concern was that she could not move. She appreciated she was very seriously injured. Thereafter whilst she remained in the bedroom for approaching an hour and a half her focus remained upon her terrible situation. Neither she or Mr Marshall gave a brief account of what had happened to Mr Holzer and/or Ms Edwards the first paramedics to attend. The Claimant did not start thinking about her accident until many weeks later and after she had survived a very turbulent period within which she could have died.[100]The Claimant’s sister Natalie Busby was shocked and devastated by what had befallen her sister. As she set out in her statement it did not make sense to her that she could have fallen off a bed and done so much damage to herself.[101]In December 2013 Natalie Busby went to her sister’s house to prepare it for rental. It had not been occupied since the night of the accident save for Mr Hazier who lived in an annexe. She stated “it was on this particular date that I went into her bedroom and noticed that there were no feet on the corner of the bed. The bed is two large divans pushed together and each divan has feet on each corner. As you are looking at the bed from the doorway, it was the left-hand divan where the two front feet were missing. The quilt was still on the bed and it had all been pushed back together. Left-hand divan and bed look lower than the right-hand side. I sat on the bed and when I stood up it was like the mattress pushed me off. It felt very weird and did not look or feel right in the whole corner of that side of the bed. I believe I took some video footage of it because it was very strange.”[102]Ms Natalie Busby told me that she sat on the corner where the feet were missing. She then checked the other bed and noticed problems such as the fact that the headboards were not fixed. I find as a fact that she then considered that a potential cause for her sister’s accident was the missing feet; being just one of the problems with the beds supplied. She then spoke to her sister. This was the first time that Ms Busby became aware of any issue with the bed.[103]Ms Busby at that stage had not really considered the precise cause of her fall from the bed; rather (and again wholly understandably) solely the devastating effects. She had played over in her mind the feeling of being catapulted off the bed and the moment of impact, but not associated her fall with any movement in the bed or other specific factor. Now her sister presented her with a theory; an explanation for how this terrible accident had happened. I have little doubt that that this then became the focus of consideration and discussion.[104]However, Natalie Busby had sat on the bed at the corner where the feet were missing (and knowing that they were missing) to see if their absence could have any effect. She did not consider or test the other side of the bed from which her sister had fallen. She was probably unaware of the part of the bed upon which the Ms Busby was keeling as this was and remains an embarrassing issue for her to recount in detail. Regrettably I find that in essence Ms Natalie Busby took two and two and made five; she took the absence of the missing feet and the fall from the bed and made a causative link. Why else would her sister have fallen from the bed? She assumed what needs to be proved; that there was a causative link.[105]In my judgment , after all the evidence is carefully considered, a much more likely cause for the fall can be seen. The Claimant was in an unusual position towards the foot of the bed and kneeling back on her feet. She had no means of support other than placing her arm down which she did as she attempted to swing her legs around from underneath her. It was not an easy manoeuvre. The mattress was new to her and was as she described it “very springy” (this is also I believe why Natalie Busby felt it “pushed her off”).[106]I find that Ms Busby moved her weight back whilst leaning in order to swing her legs from underneath her and lost balance. It may be that the springy and hence somewhat unstable mattress beneath her left arm played a part in the loss of balance. She had nothing to reach for support and fell backwards. Once she was beyond a certain point her legs then flipped up. This is entirely consistent with her description of the fall in her witness statement- “I was in bed with my partner John. He was laid (on) the right-hand side of the bed with his head near the headboard and his feet at the end of the bed. I was on his left side, in the middle of the bed, lent over him. My back was facing the window and my head was facing the bathroom. We were being intimate I sat up intending to lay down on the bed with my feet near the headboard and my head at the foot of the bed. As I manoeuvred from a kneeling position to lay down, I sat on my left buttock to swing my legs round from underneath me. As I went to roll back, my body seemed to continue rolling backwards and my legs and feet were catapulted over my head. My head was slightly off the edge of the bed at the time I continued rolling backwards and landed directly on the top of my head forcing my neck backwards and forwards. I felt with the full weight of my body directly onto the top of my head. My head was right next to the base of the bed my back was up against the end of the divan and mattress. I knew immediately that I’d seriously injured myself because my head did not seem connected to my body and I had no feeling from the neck down. My legs and body then slumped to the right towards the window”[107]She also described the mattress as “brand new and very springy” and that the bed company “had recommended that particular mattress.” There was an undercurrent to her evidence that the mattress played a part in the accident.[108]In her oral evidence Ms Busby confirmed that Mr Marshall was on the left hand side of the bed and that she was on the right. She initially said that she could not say could how close she was to the edge/end of the bed but then said she was sitting over him in the middle somewhere towards the centre of the mattress. She remembered that she was positioned kneeling over him with her face looking towards the door of the bathroom. She was sitting on her knees and was over “his private parts”. Her right hand was touching him and her left may have been on his leg. She said she put her left arm down, her weight on the left side of her bottom and started to swing her legs from underneath her, with the intention of lying next to him (head to toe) and that is when she fell. She felt “catapulted” off the back of the bed. She just remembered falling, she explained that she did not remember leaning away towards the end of the bed, but remembered rolling backwards and that her feet went up in the air.[109]In his witness statement John Marshall stated that he recollected that Ms Busby was- “… on top of me facing me. She sat up and rose off me intending to sit back on her bottom when she seemed to just roll off the bed. If you’re looking at the bed from the doorway it is a large bed and I was laid on the left-hand side. As Claire went to sit down beside me she just carried on going. I remember the image clearly of her falling off the bed with her feet in the air. It was one of those rolls you see in life in slow motion. She came up slowly and sat back and kept rolling backwards”[110]In his oral evidence he said that Ms Busby was over the top of him and that she “rolled off the back of the bed”. He recollected it in slow motion; seeing her somersaulting or backwards rolling off the bed. He clarified that Ms Busby had been “straddling him” with two legs over his body and had got off to the right side rolling onto her bum. He clearly remembered her feet flying upwards. Not surprisingly he found describing Ms Busby’s exact position in the bed difficult to recall with any precision and recollected her to be towards the middle of the bed, facing him.[111]It is instructive and illuminating that at no stage when initially recounting how the accident occurred did either Ms Busby or Mr Marshall say that her left arm somehow collapsed or slipped off the bed. In the main, and as set out above, the evidence was entirely consistent with Ms Busby being close to the foot of the bed and, in manoeuvring from the position of kneeling and sitting back on her feet to swinging her legs around underneath her, over balancing backwards, with her head and torso going backwards off the bed and causing her legs to flip up and over. She would have had nothing to grab onto to steady herself and save her fall.[112]Insofar as there are contemporaneous records to third parties these are also consistent with a simple accident.[113]The ambulance report sheet states- “patient was having sex with partner when she fell backwards off the bed head over heels landing on the floor”[114]Although the provenance of the information is somewhat unclear the Thames Valley trauma book records- “kneeling off edge of bed fell backwards and flipped back overhead”(emphasis added)[115]The hospital admission sheet states- “patient was kneeling on the edge of the bed and fell backwards onto a flat carpeted floor” (emphasis added)[116]The acute outreach team pro forma states- “kneeling on edge of bed; fell back and flipped back overhead”[117]I bear very well in mind that Ms Busby was immediately aware of the terrible nature of her accident and also that to third parties she presented as a medical emergency; so detail was not a priority. However nowhere in Ms Bubsy’s witness statement or the contemporaneous records is there any suggestion that the bed played a part in the accident through moving or somehow giving way underneath her or her arm.[118]The letter before action dated 19 October 2015 (over two years post accident) stated- “ she was kneeling in the middle of the bed and went to sit down on her left buttock and move her legs from underneath her by swinging them around the right as she lay back the end of the bed appeared to give way causing her roll backwards off the bed”. Reference is then made to the missing “castors”, but significantly in my view letter continues- “The claimant also purchased the mattress which is recommended to her by the store and the springiness of the mattress may have contributed towards the accident” This ties in with the statement made by Ms Bubsy that the mattress was very springy.

Reference is then made to the missing “castors”, but significantly in my view letter continues-

[119]The particulars of claim dated 9 December 2016 state- “ On 15 August 2013 the claimant was kneeling on the bed. Claimant intended to manoeuvre her legs from beneath her. In the process of undertaking this manoeuvre the claimant sat back and the bed moved causing her legs to go over her head” ( emphasis added).[120]As the case has evolved Ms Busby’s case has become that her left arm/hand was put down on the mattress at the point of the difference in divan levels below and this caused her arm to slip off the bed or otherwise for her to lose her balance. However, there was no mention of her left arm slipping or moving in the letter before action or the particulars of claim or, very significantly, her statement. The fact that it was wholly absent from her statement, indeed from her evidence in chief and initial answers in cross-examination was Mr Block Q.C. submitted a “beacon that shines out”. In my judgment the evolution is indeed telling; it was from an initial case that became unsustainable to one that was arguable. That process reveals the absence of adequate recollection of the cause of the fall.[121]Mr Busby’s oral evidence was itself telling. Mr Block Q.C. was careful in cross examination to give Ms Busby the opportunity to explain in her own words her current recollection of what had happened such that she came to fall off the bed. She did not mention that her arm, which she stated was not a way behind her, had moved unexpectedly.[122]Indeed, it was only when cross-examined upon the letter of claim that Ms Busby stated that as she put a hand down something happened and that was what caused her to move (at one stage she said it was “jolted”) and that whilst mattresses all do go down this was more than a sinking down. She stated that something moved, the bed or mattress, and “it didn’t feel right” it was just not a normal feeling and it was not a normal fall; something moved. She stated she felt it was not normal to be catapulted of the back of the bed and legs thrown behind her with force. When asked about the springy nature of the mattress she repeated that she felt catapulted and this was not a normal fall. Again the springiness of the mattress seemed to underlie her analysis of the fall. The oral evidence given (and how it was given) has to be measured against a clear and consistent recollection of her left arm moving unexpectedly.[123]If Ms Busby did have a clear recollection of what had happened I would have expected it to be set out, usually consistently, on the various occasions when her case was set out and certainly within her witness statement. This was not the case.[124]By the time Ms Busby came to give evidence in cross-examination she had the benefit of her sisters analysis and subsequently that of Mr Glenn. I believe that she has linked her feeling that this was not a “normal” fall to something unusual happening. However, Ms Busby will not regularly have fallen off a bed; so the comparison is of limited assistance.[125]My analysis of what happened is as follows. This was a new bed, just a week old, with a mattress Ms Busby has described as very springy. She was in an unusual position towards the foot of the bed and in my judgment she must have been at the edge of the bed (as the records set out) to have fallen as she did. I found Mr Glenn’s evidence to be most unconvincing insofar as he sought to suggest that horizontal momentum/force could mean otherwise.[126]Ms Busby was kneeling with her bottom resting upon her feet. The manoeuvre she was attempting was a little awkward and required her to lean back towards, and I find over, the edge of the bed. It may be that in so doing she found the mattress under her arm and, importantly, her bottom to be “springy” with the effect of pushing her, catapulting her to use her phrase, backwards.[127]Having carefully considered the totality of the evidence I am not satisfied that the difference in level between the two divans played any part in Ms Busby’s loss of balance backwards. Rather I am satisfied that this was a simple but tragic fall; she simply overbalanced probably in part because she was sitting on a mattress as opposed to a firm surface and underestimated the amount of give underneath her body. So such “defect” as there was played no part.[128]I find that the case against the Defendant grew with momentum after Ms Natalie Busby found the bed with the gliders absent. She was looking for an explanation for her sister’s terrible accident and thought she had found it. There was absolutely nothing wrong in her approach in general; she was simply not correct.[129]For the avoidance of any doubt I should add that I am satisfied that any slope also did not play any part in the fall. Liability[130]In light of my findings as to fact upon the issue of causation the claim fails under each of the causes of action.[131]Given that submissions were made I shall briefly set out my view upon the causes of action advanced. Consumer Protection Act 1987[132]By virtue of section 2 of the Act, where any damage is caused wholly or partly by a defect in a product, liability is established against the producer of the product and (by virtue of section 2(2)(b)) against; “..any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; This means that if there was a defect in the product then subject to establishing causation (which has not been stablished in this case) the Defendant would be liable.[133]So the question arises whether the bed as supplied, without the gliders at the foot of one of the divans, was defective. It was clearly not of satisfactory quality; but did the failings in construction materially affect the safety of the product safety such that liability attaches under the Act. Section 3 sets out the test to be applied in relation to a defect ; 3 Meaning of “defect”. (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. .[134]The issue is, of course, highly fact specific. As a consequence, and understandably, Counsel did not engage in a trawl through consideration of the issue in (the relatively few) other cases in which it has been considered, as it would be of limited assistance.[135]However, I can set out some general points indicating my approach to the issue.[136]First, it justifies statement to set out that the Claimant in an action must prove that the product was defective and it does not axiomatically follow from the causation of injury.[137]Application of the test requires an objective approach. In considering whether a product suffered from a defect, the court has to assess the appropriate level of safety, exercising its judgment, and taking into account the information and the circumstances before it. Section 3, directly reflects Article 6 of the Directive, in requiring 'all circumstances' to be taken into account,.[138]The key phrases is “such as persons generally are entitled to expect”. As Burton J put it in A v NBA, at [31]:
'… (iv) The question to be resolved is the safety or the degree or level of safety or safeness which persons generally are entitled to expect. The test is not that of an absolute level of safety, nor an absolute liability for any harm caused by a harmful characteristic. (v) In the assessment of that question the expectation is that of persons generally, or the public at large. (vi) The safety is not what is actually expected by the public at large, but what they are entitled to expect …' (Emphasis in the original.)
[139]Clearly, the intent is to cover a population which possesses a great inherent diversity of physical and mental attributes. Whilst it is not intended to produce an entitlement to protection for each and every possible use, regard must be had to likely use, and indeed reasonably foreseeable misuse, by a representative cross-section of the target population, which may include some consumers at heightened risk.[140]The reference within subsection is risk as opposed to hazard. Hazard is a method of injury; risk is the likelihood of the hazard occurring. Whether a particular risk is avoidable is not, of itself, determinative of the issue of defect. However, the ease and extent to which a risk could be eliminated or mitigated might be a circumstance bearing upon the issue of the level of safety that the public generally was entitled to expect.[141]In the present case the product was “not as it should be” i.e. not as designed. There was a tapering difference in level between the two component divans and also a one degree slope. Emphasis was focused upon the difference in level and it is difficult to see how the one degree slope could possibly constitute a defect for the purpose of the Act.[142]The bed would only be usable as a bed with a mattress on it and any mattress would greatly ameliorate, but not wholly remove, the difference in level between the divans. Was the result that the safety or the degree or level of safety or safeness was not that which persons generally were entitled to expect? Even taking into account the ease with which the difference in level could be rectified and reasonably foreseeable misuse I am not satisfied that the bed could be considered defective under section 3 of the Act. Had I found as a fact that Ms Busby’s hand/arm had not been supported or moved by virtue of the difference in level such that she lost her balance backwards that fact of itself would not have been sufficient in my judgement to mean that the test was satisfied. As Burton J stated the test is not that of an absolute level of safety. It required a most unfortunate and unusual combination of positioning on the bed and movement which I do not believe would have been foreseeable by any reasonable person prior to the incident. The foresight of a reasonable person is not the test; but it feeds into it.[143]So the claim under the 1987 Act would have failed in any event. Breach of contract[144]It was common ground between the parties that the contractual relationship gave rise to duties under the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. Mr Block Q.C, rightly conceded that if, as I have found, the gliders were absent, then this rendered the bed not of satisfactory quality. Further, the Defendant would be in breach of its duties pursuant to section 13 of the Supply of Goods and Services Act 1982 in that the said service was not carried out with reasonable skill and care as was expected.[145]In the event of breach the issue Mr Block Q.C. submitted that the issue was that of remoteness of damage.[146]The classic statement of the rules regarding remoteness of damage in contract is within the judgement in Hadley-v-Baxendale [1854] 9 Ex 341. “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either as arising naturally, i.e. according to the usual course of things, from such breach of contract itself, such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated…”[147]It has become the norm to describe the first limb of the rule relating to losses that arise “in the usual course of things” and the second limb relation to losses recoverable only because they were contemplated by the parties. Negligence[148]Mr Block Q.C.’s submission was that, if the gliders were missing, the loss in this sad case, was too remote.[149]Sometimes the consequence of negligence can go well beyond what reasonably could have been anticipated or damage can occur in a manner that could not have been in contemplation. The rules of remoteness of damage seek to provide a mechanism which helped identify what may be recovered in terms of damage in what may not. As Lord Wright stated in Liesboch Dredger -v-SS Edison [1933] AC 449 at 460 “ The law cannot take account of everything that follows a wrongful act, it regards some subsequent matters is outside the scope of its selection “[150]In very general terms consideration of the issue of remoteness of damage seeks to determine whether there is a reasonably substantial link between the defendant’s conduct and the damage that is caused. Put simply the test applied is that of reasonable foreseeability given the scope of the duty of which there has been breach. So long as the damage is of a kind that was reasonably foreseeable, it is not necessary that precise mechanism by which the damage was caused was itself foreseeable (see generally Hughes-v-Lord Advocate [1963] AC 837).[151]In circumstances were a cause of action in negligence lies concurrently with the cause of action in breach of contract it is sometimes the case that the test in tort of reasonable foreseeability is wider than the contractual test. In the present case Counsel agreed that there was, in effect, nothing between the tests.[152]Mr Block Q.C. submitted that it was simply not reasonably foreseeable and would not have been in anyone’s prior contemplation that the difference in level between the divans would potentially cause a person to fall out of/off the bed. He accepted that if it were so the fact that the Claimant’s injury was so unusually severe would not prevent recovery.[153]Mr Hunter Q.C. submitted that if consideration had been given to the potential effect of the absence of the gliders then it would have been appreciated that there was an area where the mattress was not fully supported and that could cause or materially contribute to someone falling off/out of the bed by reason of slipping or losing balance.[154]I fully recognise that any proper prior consideration for the event for the purpose of the test even in contract or tort would have to take into account the fact that the bed would be likely to be used by a range of individuals, including those with disabilities, and not solely for the purpose of sleep. However, the fact of an accident, without more, does not prove that its occurrence should not be considered as too remote. I return to what I have already stated ; it required a most unfortunate and unusual combination of positioning on the bed and movement of the body for the difference in level to cause or materially contribute to a person falling off or out of the bed. I do not believe that would have been foreseeable by, or in the contemplation of, any reasonable person prior to the incident. Put simply it would have been extremely difficult for anyone to have thought of a mechanism whereby what was undoubtedly a problem with the bed, could lead to a person falling off/out of bed. It bears repetition that Ms Busby and Mr Marshall did not even notice the difference in level in the bed when they slept in it. Because of the presence of the mattress it was only at the end of the bed where the difference would have been detectable. It required a person to place their weight on a sole supporting arm and be caught by the difference in level when in a position that the consequence would be that they fell backwards. As I have set out I do not accept that did happen, but in any event had it have happened, it is my view the devastating repercussions would have been too remote in law; whether the test be that applied in contract or tort. Conclusion[155]As a result of the matters set out above the claim in relation to this tragic accident, which is what I find it was, a simple accident, fails.[156]Counsel should now consider whether an agreed order can be drawn up, and if not the nature and extent of any further hearing that is required.

Cited in 2 later judgments