Court of Appeal holds that the voluntary use of a defective product defeats product liability claim

Facts

On 12 February 2007, there was a fire in one of the factories of the claimant, Howmet. As a result of the fire, Howmet suffered losses amounting to approximately £20 million.

Howmet issued a negligence claim against the defendant, EDL, alleging that the fire had been caused by a defective themorlevel manufactured by EDL. In particular, Howmet alleged that the thermolevel had failed to switch off the heater of the tank in which it was immersed, causing the tank to catch fire. Howmet also issued a statutory claim under section 41 of the Consumer Protection Act 1987 ( www.practicallaw.com/9-384-3461) . The statutory claim is outside the scope of this update, save to say that it failed.

Prior to the fire of 12 February, there had been two other incidents where the thermolevel had failed to switch the heater off, but employees of Howmet had managed to extinguish the fire swiftly on both occasions so that no damage was suffered. As a result of the second fire, certain of Howmet’s employees put a system in place to reduce the risk of the tank catching fire and also purchased a float switch, as an alternative to switch off the heater if the water level in the tank fell. However, the alternative switch had not been installed by 12 February when the fire occurred.

Decision

The Court of Appeal unanimously dismissed Howmet’s appeal for want of proof of causation. The effective cause of the fire had not been the defective thermolevel, but the failure of the system which Howmet had put in place to protect the tank following the malfunction of the thermolevel. Alternatively, given that Howmet had discovered the defect before the damage took place, EDL did not owe Howmet a continuing duty in respect of the safety of the thermolevel.

The decision is authority for the proposition that a negligence claim will fail, where the claimant becomes aware of a defect in a product before damage occurs, and voluntarily continues to use it.

Jackson LJ delivered the lead judgment of the court. Sir Robert Akenhead and Arden LJ each disagreed with some aspects of Jackson LJ’s judgment, but not with his overall conclusion to dismiss the appeal.

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