DOES A CLAIM FOR A DEFECTIVE PRODUCT FALL WITHIN THE DEFINITION OF PUBLIC LIABILITY CLAIMS? A JUDGMENT AT FIRST INSTANCE

I am grateful to solicitor Gareth Edwards from Mooneerams, solicitors,   for providing me a copy of the judgment of District Judge Vernon, sitting at Cardiff 17th March 2021, in the case of X (a Minor) -v- MPL Home & Senza Group Ltd.  The judge considered the question of whether a defective product fell within the public liability Protocol.

THE CASE

The judge had earlier approved a settlement on behalf of a minor who had suffered injury whilst using a hair dryer.  There was, however, a n issue as to what costs regime. The claimant argued that the facts of this matter took it outside the public liability protocol.

THE JUDGMENT: CLAIMS SUCH AS THIS REMAINED IN THE PROTOCOL

The judge set out the facts and issues being considered.

“She was drying her hair with an electric hairdryer when an electric spark came off the hairdryer, causing a flame which burned her wrist. The Claimant intimated a claim for damages for the injuries she sustained. The matter was then subject to agreement between the parties as to a settlement, by way of a payment of an amount of money. That resulted in a claim being made for the purposes of having that agreement approved by the court and is, in fact, a matter which came before me on 31December of last year, when I approved settlement.

3. The issue that remains is an issue of costs. There is a dispute between the parties as to the principle that should apply to costs; not as to who should pay the costs but the basis upon which those costs should be assessed or fixed. It is the defendants’ position that the matter should be seen in the context of the EL/PL protocol; that is the pre-action protocol for low value personal injury employers’ liability and public liability claims, and therefore should be subject to a fixed costs regime. The claimant’s position is that it is not subject to that protocol and therefore is not subject to any fixed costs regime.

4. There was insufficient time to deal with that issue at the hearing on 31 December and therefore I adjourned that matter for further consideration. It has come before me today. I have had the benefit of a skeleton argument from Mr Evans for the Claimant and oral submissions in support from him. I have also heard oral submissions from Mr Forster of counsel who appears on behalf of the defendant.

5. I will start by making these observations. The pre-action protocol for low-value personal injury employers’ liability and public liability claims includes within it a pre-amble which says, “This Protocol describes the behaviour the court expects of the parties prior to the start of proceedings where a claimant claims damages valued at no more than £25,000 in an employers’ liability claim or in a public liability claim. The Civil Procedure Rules 1998 enable the court to impose costs sanctions where this Protocol is not followed.”

6. Paragraph 4.1 of the protocol then sets out the scope of the protocol and indicates that the protocol applies where (1) the claim arises from an accident occurring on or after 31 July 2013 (I note that the accident in this case did occur after that date), (2) the claim includes damages in respect of personal injury (which this claim does); (3) the claimant values the claim at more than £25,000 on a full liability basis, including pecuniary losses but excluding interest (that also applies here); and (4) if proceedings were started, the small claims track would not be the normal track for that claim (again, that is the case here).

7. Therefore, this claim falls within the scope envisaged by paragraph 4.1. However, the issue in this case is whether the claim that has been made by the claimant is a “public liability claim” for the purposes of the protocol.

8. Public liability claim is a term defined in paragraph 1.1(18) of the protocol. That paragraph says, “‘public liability claim’ means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against (i) a person other than the claimant’s employer; or (ii) the claimant’s employer in respect of matters arising other than in the course the claimant’s employment”. Paragraph (ii) does not apply here; this is not a claim against the claimant’s employer. Sub-paragraph (b) of paragraph 1.1(18) also does not apply here because this is not a disease claim.

9. The defendants’ argument principally is that this is a claim for damages arising out of a breach of a statutory or common law duty of care owed by the defendants to the claimant and that the defendant is not the claimant’s employer and therefore this is a claim which falls within the definition of public liability claim that I have just set out.

10. The claimant’s position is that this is a claim that does not fall within the definition, and/or is a claim that is not suitable, effectively, for the EL/PL protocol. Mr Evans has set out in detail in his skeleton argument and in oral submissions today why that is said to be the case.

11. Principally, the argument can be reduced into four component parts, as per his oral submissions.

12. The first point is that product liability claims, which this claim is an example of, is a complex area of law that the EL/PL protocol was not intended to cater for because the protocol is intended to be a streamlined process for straightforward claims.

13. In my judgment, it is right to say that the EL/PL protocol is a streamlined process. However, I do not agree that that means that the protocol is unsuitable for claims that eitherare or turn out to be complex claims.

14. In my judgment, there are two provisions within the protocol that indicate that if a claim either is or becomes complex, then it will exit the protocol process.

15. The first of those is paragraph 6.13, which is a provision that indicates that if contributory negligence is raised in a claim or there is a denial of liability, then the matter will fall out of the protocol. I agree with the submission made by Mr Forster that those are matters that are most likely to lead to a claim being a complex claim and they are the matters which are likely to lead to, for example, extensive disclosure or extensive witness evidence or extensive expert evidence being required, as envisaged by Mr Evans’ submissions. It is those matters which are likely to mean a claim is complex and that provision, therefore, provides a mechanism for the claim to fall out of the protocol.

16. Secondly, in paragraph 7.59 of the protocol, under the heading ‘General provisions’, the protocol also allows a claimant to give notice to the defendant that the claim is unsuitable for the protocol and specifically, for example, because there are complex issues of fact or law or where the claimant contemplates applying for a group litigation order.

17. It therefore seems to me that complexity is not a reason that a specific claim should not fall within the protocol to begin with, there being clear mechanisms within the protocol enabling a claim to be excluded from the protocol if indeed it is too complex, either as a matter of fact or law, to remain within the protocol. I therefore reject the assertion that is made that, by its very nature, a product liability claim is too complex to be handled within thepre-action protocol for EL/PL claims.

18. I should also say that, in my judgment, not all product liability claims will be complex claims. Some will, but not all will, in exactly the same way as some road traffic accident claims will be complex, whereas some are very straightforward. Similarly, with employers’ liability claims. And therefore, in my judgment, complexity is not a reason to say that this claim falls outside of the scope of the EL/PL protocol.

19. The second point then focusses on the definition of a public liability claim. The central point made on behalf of the claimant in respect of this is that this is a claim for product liability, which can be a claim brought as a breach of contract claim and that a breach of contract claim falls outside of the definition of public liability claim in paragraph 1.1(18) of the protocol.

20. I pause there to note three things. Firstly, Mr Forster accepts that if a claim were to be made alleging a defect in a product that had caused injury, and in the particular circumstances of a case was brought by the claimant solely as a breach of contract claim, then that is a claim that would appear to fall outside of the definition of public liability claim within the protocol. However, in my judgment, there is nothing in this particular claim to indicate that this is a claim which is brought specifically or solely as a claim for breach of contract. Secondly, in light of the age of the claimant and the circumstances of the accident, it is not at all clear that it could be brought as a breach of contract claim, there being no indication before me that the claimant was a party to any contract giving rise to liability. Thirdly, and in any event, in light of those observations, it seems to me that it is not necessary for me to determine, as a matter of principle today, whether a claim for breach of contract does fall inside or outside of the EL/PL protocol, this specific claim not being a claim of that sort.

21. The next point that is made is that when one looks further on in the protocol, at paragraph 4.3, paragraph 4.3 appears to provide a number of exceptions to the claims which fall within the protocol; the defendants’ argument being that product liability is not named there, and so is not excluded. However, the claimant argues that there are other claims which are not expressly set out in that paragraph which also fall outside of the protocol, and therefore the absence of the mention of product liability claims is no indication that they are included or excluded from the protocol.

22. In making that submission, Mr Evans referred to various types of claims which are not specifically mentioned in the protocol; for example, housing disrepair claims and holiday sickness claims. There is also mention of professional negligence claims. It is right to say, in my judgment, that all of those categories of cases, whilst not specifically mentioned in paragraph 4.3 of the EL/PL protocol, are themselves the subject of specific pre-action protocols. We went through some of those protocols during the course of the hearing today and it seems to me, that no categories of cases were clearly identified that are not specifically mentioned in paragraph 4.3, but where there is no specific pre-action protocol to cater for them.

23. The only passing example that could be referred to was the mention of personal injury claims arising from housing disrepair, where the housing disrepair protocol indicates that they should be dealt with under the general PI protocol. In my judgment, that is a specific provision within a specific pre-action protocol, indicating how claims of that sort are to be dealt with, even though it indicates that it is to be dealt with under the general PI protocol, and therefore, in my judgment, that is consistent with the conclusion that I have reached inrelation to the other specific types of claims to which I have referred.

24. Therefore, applying those reasons, I am not persuaded that any of those arguments should lead to the conclusion that this case is one that falls outside of the definition of public liability claim within the EL/PL protocol or that protocol itself.

25. As to Mr Evans’ third argument, that there is another specific protocol that should apply to a product liability case, the only specific protocol that can be pointed to by the claimant is the professional negligence protocol.

26. In relation to that issue and as to whether product liability claims are of a type that should fall within the professional negligence protocol, I take this view: Mr Forster has referred me to chapter 9 of Clerk & Lindsell when looking at what is meant by the term ‘profession’ or ‘professional’. As far as I can see – and I have not been told otherwise – the professional negligence protocol does not define the words ‘profession’ or ‘professional’, nor is there any conclusive definition of those terms as set out in Clerk & Lindsell.

27. Clerk & Lindsell goes on to say that a profession, according to Scrutton LJ from a case in 1919, involves the idea of an occupation requiring either purely intellectual skill or manual skill, controlled – as in painting, sculpture or surgery – by the intellectual skill of the operator, as distinguished from an occupation, which is substantially the production or sale or arrangements for sale of commodities.

28. A case of product liability, certainly one brought under the Consumer Protection Act, is one that is brought against a producer of a product, or against an importer or a seller of a product. Those are categories of defendants, or potential defendants, which more accurately fall within the terms set out in Clerk & Lindsell, referring to the production or sale or arrangements for sale of commodities than they do within the meaning of the words ‘profession’ or ‘professional’.

29. I also note that the Consumer Protection Act does not seem to cater for any action or claim against, for example, the designer of a product, as opposed to the producer or the importer or seller. A designer may well be a professional within the meaning of the terms set out in Clerk & Lindsell, but those catered for for being potential defendants under the Act are not, in my judgment, of that category.

30. Therefore, for those reasons, again I am not persuaded that the defendants, in a product liability case, mean that any claim is likely or more appropriately to be catered for by the professional negligence pre-action protocol.

31. As for the final argument that was advanced; namely that it was Parliament’s intention that the product liability claim should fall outside of the EL/PL protocol, the argument there relies upon the provision within the Limitation Act for product liability claims, there being a separate provision.

32. It would be incorrect, in my judgment, or at least inappropriate, to draw any analogy between Parliament’s intention in the drafting of the EL/PL protocol and its terms, and the inclusion of section 11A in the Limitation Act.

33. The provisions serve different purposes; there may well be very good reasons for the inclusion of section 11A that have nothing at all to do with the operation of the EL/PL protocol. Therefore, I am not persuaded, again, that that is a reason to come to any conclusion other than that this claim is one that should fall within the EL/PL protocol.

34. One final point to deal with is the issue raised again by the claimant that refers to the notes within the White Book which suggests that public liability claims are claims to be brought against “authorities”. There are two points to be made, in my judgment, about that. The first point is that, now I have had a chance to look at the paragraph that is referred to, it is commentary within the White Book but, in my judgment, it is identifying an issue about the insurance arrangements of people who may be defendants to a public liability claim. It seems to me to be doing nothing more than that and in identifying that some authorities insure themselves, whereas others do not. Given that view, I take the view that that does not materially assist me in dealing with the issue that I am dealing with.

35. Secondly, and in any event, it simply cannot be right, in my judgment, that public liability claims are designed to only be brought against authorities. In particular, I note paragraph 4.33 of that protocol only seems to exclude claims being made against a defendant where that defendant is an individual, but notes that even individuals may be sued in their business capacity or in their capacity as an office holder. So, by way of an example, as was explored during the course of submissions, one could readily see how you have a public liability claim within the meaning of the protocol where there is a defendant who is a sole trader in charge of, for example, some premises, who is not an authority in any sense of the word, but would fall within the definition of a defendant within a public liability claim within the protocol.

36. For all of those reasons, I am drawn back to what I said at the outset as to the definition of public liability claim and the scope of the EL/PL protocol. For all of the reasons I have given, I am not persuaded by any of the claimant’s arguments that a product liability claim –or rather, I should say, this product liability claim – falls outside of that definition or that scope and therefore, in my judgment, this is a claim that should have been commenced in accordance with the EL/PL protocol and the costs implications which follow from that are, as I understand it, that the fixed costs regime should apply to these proceedings.