The Claimant, Mrs Richardson, alleged that on 20 May, 1995, a condom manufactured by the Defendant, LRC Products Limited, ("the Company") fractured during sexual intercourse, leading to an unplanned pregnancy.

She claimed damages for the pain and suffering occasioned by the birth, and consequential losses, consisting mainly of the costs of raising her child. The proceedings were brought under The Consumer Protection Act 1987 ("the Act"). The matter was heard before Mr Justice Kennedy, who gave judgement on 1 February, having heard arguments on liability issues only.

The Consumer Protection Act 1987
Mrs Richardson contended that the condom was defective within the meaning of Section 3 of the Act; ie. that the safety of the product was not such as persons generally were entitled to expect. The Act provides that in determining "what persons generally are entitled to expect" all the circumstances shall be taken into account including: the manner in which the product has been marketed; any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product; what might reasonably be expected to be done with or in relation to the product; and the time when the product was supplied by its producer to another.

Mrs Richardson's primary argument was that the fracture of the subject condom occurred because the latex from which it was made had been weakened by ozone exposure at the factory. Her second argument, which emerged principally in the course of trial, was that the fracture was itself sufficient to establish a defect within the meaning of Section 3 of the Act, even if it was not possible to identify the actual cause of the breakage.

The decision
The Company accepted that the subject condom had been damaged by ozone, but contended that this occurred after use. They relied upon the evidence of Professor Graham Lake, a leading expert in the properties of rubber, to establish that the ozone cracking represented post-fracture damage. The Company also relied upon the first-class nature of its manufacturing and testing procedures, which were sensitive to the need to minimise ozone exposure in the factory.

Mr Justice Kennedy accepted Professor Lake's evidence commenting that he was "very impressed" by the level of "expertise and scientific rigour", finding that the ozone cracking represented post-fracture damage, ie. that the ozone attack could not have been a cause of the failure.

The judge did not accept Mrs Richardson's arguments that the fact that a condom breaking in ordinary use was, of itself, evidence of a pre-existing defect. Instead, he accepted the evidence of Dr Rosenberg, an American expert epidemiologist called by the Company, whose evidence was that condoms break for inexplicable reasons. He therefore concluded that a defect cannot be inferred from an apparent failure and commented: "So to the question: does a fracture prove a defect? I answer, no, not by itself."

Section 4 of the Act provides a statutory defence for producers. This is if they can establish that the state of scientific and technical knowledge at the relevant time was not such they might be expected to have discovered the defect if it had existed in their product whilst under their control.

Mr Justice Kennedy interpreted this section strictly, noting that the test under the Act is not what the Company knew, but what it could have known if it had consulted those who might be expected to know the state of research and all available literature sources. "This provision is, to my mind, not apt to protect a defendant in the case of a defect of a known character merely because there is no test which is apt to reveal its existence in every case."

Obiter remarks

The morning after pill
Mr Justice Kennedy was referred to an unreported 1992 decision of the Court of the Appeal, Shearing Agrochemicals Limited v Residell MDSA on causation. The defence contended that Mrs Richardson could not recover damages in any event, because she was aware of, but did not seek, the morning after pill. If she had done so, the likelihood was that she would not have subsequently given birth to a child.

The Shearing case concerned a factory where manufacturers had supplied a device for heat sealing caps on containers which were to hold highly inflammable material. The production line jammed on one occasion and heat damage was evident to bottles which were spending longer under the heat source than was intended. Nobody reacted to that and when the same thing happened again, the factory burned down. The Court of Appeal denied the claimant factory owners a remedy on the basis that though there had been a breach of contract, the effective cause of the loss was of their own making. It was stated that "the duty to mitigate loss is the duty to act reasonably, a breach of that duty should involve some act or omission which can fairly be categorised as unreasonable having regard to the state of knowledge of the person or entity whose act or omissions are in question".

Applying that test, Mr Justice Kennedy found that Mrs Richardson, on realising the condom broke and she may have fallen pregnant, should have acted to avoid an unwanted pregnancy by obtaining the morning after pill. In arriving at the decision, he considered that it was essential Mrs Richardson knew of the existence of the "morning after pill" which, in evidence, she had accepted. Thereafter it was an objective test as to whether her subsequent actions were reasonable. He believed she had not acted reasonably by failing to telephone her GP even though the sexual act took place on a Saturday afternoon. As the mother of two previous children she was aware that her local GP surgery had facilities for 24 hour a day assistance.

Level of Damages
Mr Justice Kennedy made it clear that, in his view, the recent House of Lords decision in McFarlane v Tayside precluding an award of damages arising out of an unwanted pregnancy applies equally to cases brought under statute as well as to those framed in negligence.

Implications for insurers
The primary defence to any claim brought under the Act must be that the product in question was not defective given the difficulty in establishing a "state of the art" defence.

Any claimant must adduce evidence as to the cause of the alleged defect; it is not enough simply to state that a product failed therefore it must have been defective. Defendants in such a case should consider whether studies have been undertaken regarding failures of similar product types and if so, whether any discernible cause of failure was identified.

The Shearing decision is applicable to any case involving a duty to mitigate. This duty is now greater than ever; as soon as it is reasonable for a claimant to take steps to avoid or reduce a loss that a particular factual situation would otherwise cause him, it is permissible and appropriate that damages should only be awarded on the basis that he has discharged the duty to mitigate.

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