What does "defect" mean?
Rarely has the Court of Appeal been required to examine the meaning of "defect" within Section 3(1) of the Consumer Protection Act 1987 (the Act). In Baker v KTM Sportmotorcycle UK Ltd and another  EWCA Civ 378, the Claimant, a maxillofacial surgeon, had suffered severe personal injuries when the front brakes of the second-hand motorbike he was riding seized without warning and he was thrown off. The motorbike had been well-maintained, had low mileage and was only two years old. The Claimant sued the motorbike manufacturers (KTM) under the Act and in negligence, and won (under the Act) at first instance. KTM appealed, on the basis that the Recorder was wrong to conclude that the corrosion which led to the brakes failing was a "defect" within section 3 of the Act. The Appeal was unsuccessful—the Court of Appeal found that the brakes failed because they were defective. The Court explained that the Claimant did not have to prove the existence of a specific design or manufacturing defect for there to be a finding of defect within the meaning of section 3, nor did he have to show how the defect was caused. The Claimant merely had to show that a defect existed at the relevant time and that this caused the accident. The Court found on the expert evidence that there must have been a defect in the brakes of this particular motorbike, which Hamblen LJ described as "a susceptibility for galvanic corrosion to develop in the front brake system when it should not have done i.e. after limited and normal use and notwithstanding proper servicing, cleaning and maintenance". This susceptibility was not present in other bikes of the same type, and therefore the Court was entitled to infer that these particular brakes were defective, and the Claimant had proved his case.
What are the requirements of Section 3?
The Court clarified the requirements of Section 3: Claimants should focus on establishing whether or not the alleged defective product is as safe as persons generally are entitled to expect, rather than on pleading and proving any particular mechanism or reason why the product is defective.
What is the likely effect of the judgment?
It remains to be seen how this case may affect very complex pharmaceutical product liability cases in future, but Claimants are likely to rely upon it to argue that the Court should infer the existence of a defect, based on limited evidence regarding the safety of the product.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.