Love v Halfords Ltd

On 26 May 2008 the claimant, who was then 19 bought a new Saracen “Raw 2” mountain bicycle from the defendants for £250, plus £50 for a three year care maintenance plan. He returned it for a routine after-sales service on 23 August 2008. Nothing untoward was found.

On 28 February 2009 when he was riding the bike on a tarmac cycle path next to the A2 Road in Kent he says that the steerer tube in the mechanism of the bike fractured, causing him to lose control of the bike and he fell from it. He landed on his face striking a sharp metal stanchion and suffered very serious head and facial injuries including the loss of one of his eyes. Because of his injuries he has no recollection of the accident or his journey leading up to it.

His evidence is that over the nine months or so over which he had owned the bicycle he used it regularly for short journeys to and from his place of work and for recreational trips with his friends at weekends. He had effected no alterations or repairs to the bicycle of any kind.

This is the trial of the liability issue in his claim for damages under the Consumer Protection Act 1987, the Sale of Goods Act 1979 (as amended) and the Supply of Goods and Services Act 1982.

The Consumer Protection Act 1987 in its relevant parts reads as follows:

“2

Liability for defective products

(1)

Subject to the following provisions of this Part where any damage is caused wholly or partly by a defect in a product every person to whom sub-section (2) below applies shall be liable for the damage.

[It is common ground that the defendant as supplier of this bicycle is a person to whom sub-section (2) applies.]

This claim has been put forward principally on the basis of this statute. The claimant’s case turns on it. If he cannot succeed on it the whole of his claim falls with it.

Joseph Love had always been a keen cyclist. He had a serious accident when he was 8 years old, a collision with a car when running over a crossing, which led to his spending 3 months in hospital; but he recovered in due course and gradually resumed his hobby of cycling. The accident, said his father Kevin Love, himself a former cyclist, did mean that he was probably more concerned about Joseph’s safety as a result of almost losing him in that accident. It was “just a fatherly thing’, he said, but Joseph was capable of dealing with the ordinary events of life.

He and his father went together to buy the bike from Halfords. The claimant paid for the purchase himself from his earnings of £600-£700 per month. He chose this bike because he liked the look of it and it was capable of going off-road. It is a mountain bike with disc brakes and sprung suspension at front and back. He decided to take out a care plan for an extra £50 in case anything went wrong with it. That gave him free servicing and free repairs, with him paying for parts only not labour.

He used the bike to go to and from work (a five mile round trip approximately) and for riding at weekends with his friends when they went to the Cobham Park Woods a few miles away and rode off-road.

One who went with him on such trips was James Pitcher who had known him since schooldays, saw him nearly every day and was both a keen cyclist and close friend. He said the Cobham Park Woods had rides covered in wood shavings “like gravel, like a pathway” and there were no jumps or ramps. There were slopes or hills you could ride up and down.

The claimant said that after the first service was carried out on 23 August he did nothing to effect any alteration to the bike. The only alteration he had ever effected was to fit mudguards and lights; when he rode it he would have known if something was wrong with, he said, and it “felt alright” to him. He could not remember ever feeling there was anything wrong with the steering or handlebars. If anything had been he said “I would have thrown it back to Halfords”. Mr Lynagh QC for the defendants put to him what is now the defendant’s case, that before the accident something had happened to the bike to bend the steerer tube and somebody had tried to straighten it. The claimant firmly denied that; he said “no nothing at all like that happened; if it had I would have just taken it back to Halfords because of the contract I had. I never had any accident on the bike”. He denied that he ever lent it to any of his friends for them to ride.

James Pitcher who was a very close friend said the claimant was very pleased with the bike, it was his pride and joy and nothing was wrong with it. As he put it “I would definitely know if anything had happened to his new bike”. He was in the lead and heard but did not see the accident. He saw nothing on the cycle path, which from the photographs looks well surfaced and in reasonable condition, to suggest why the claimant had come off the bike. It is lined on the rider’s right by substantial metal stanchions, one of which was the one the claimant struck. Both knew the path well.

The possibility of the bike having been stolen and used by others without the claimant’s knowledge was explored. The claimant said he invariably locked it with a cable lock when he went to places like Bluewater, which was where he and his friend had ridden to that day. When he was at college it was kept inside the workshop where he worked as an assistant, locked with a motorcycle lock to a stand which held the metal for the students to work on. When he locked it he would not lock it by the front wheel alone but would lock the frame and the wheels. He summed it up by saying he was never aware of any attempt to steal it and was “100% sure” that he had never lent it. “I was a bit careful with it because it was a new bike”. When he was at home (he lived with his parents) the bike was kept in a back garden shed which was brick built, fitted with a lock and connected to the alarm system of the house. In order to take the bike out and put it back he had to take it through the house. His father said he saw this on a daily basis and would have spotted if there was anything seriously wrong with it. As his father put it “he comes to me for most things if he has any problems.”

I will have to hold this evidence in my mind when considering the technical evidence, which is at the heart of this case.

For the defendant, Lee Tickle explained the structure of the headset of the bike and demonstrated in a DVD how the bike was finally assembled in the shop after it had been received from the manufacturers in the Far East. Of relevance to this case was the fact that the machine came out of its box with the forks already assembled, and the steerer tube, whose lower end was already fixed in the top of the forks, had been passed through the steering head of the frame, which already had bearing cups fitted at top and bottom. All this had been done at the factory; all the shop had to do was to disentangle the handlebars, which were fastened loosely to the frame with all their cables attached, and screw them to the stem, the component which connected and clamped the handlebars to the top of the steerer tube. The result was that the handlebars could then turn the forks, into which the bottom end of the steerer tube was already secured, and the two bearing cups at top and bottom of the headset, as it is called, were in place to permit the smooth rotation of the whole steering mechanism. The bearing cups were identical and were made of steel. They were an interference fit with the aluminium head tube, the relevant part of the frame proper, and, said Mr Tickle, were pressed into position by a hydraulic press in the factory. All agreed it would be impossible to remove a properly fitted bearing cup by hand. A special tool would be required.

The person in the shop who assembled this particular machine was David Smith, not a witness. Joseph Weatherall was primarily a salesman but he had also performed many final assemblies of these bikes as described in the DVD. He was responsible for the handover of the bike to the Loves and the final check of the seat, brakes and tyre pressures. He did nothing to the headset or handlebars. He described the Raw 2 model as a good looking bike with eye appeal, suitable for light mountain riding for an amateur for which purposes it was “a good bike”.

Mr Byatt, Halfords Head of Far East Sourcing, described the manufacturer of this bike, Strongman, as a key supplier of Halfords, at times supplying over 200,000 bikes of various descriptions a year. Halfords’ quality personnel audit Strongman’s factories to check on their manufacturing process and Strongman is described as “one of our better performing suppliers”. He was not aware of any other incidents of a fork failure such as the plaintiff suffered.

Justin Stevenson had designed the RAW 2 and was familiar with Strongman as a company, having a high regard for them. The forks were made by a Taiwanese company and he called them strong and reliable. There was a “very slight chance” of a non-standard headset or bearing component being substituted, he could not rule it out but thought it very unlikely. That apart, he was not cross examined on any part of the design or specification of the bike.

There is a high degree of controversy as to how this steerer tube came to fracture as it did. I should first consider the legal tests to apply when resolving it.

The often-cited case of Rhesa Shipping Co SA v Edmunds (“the Popi M”) [1985] 1 WLR 948 establishes these general propositions:-

Of immediate relevance to this case is the Court of Appeal’s decision in Ide v ATB Sales Limited [2008] EWCA Civ 424. Giving the judgment of the Court Thomas LJ at paragraph 3 held that the result of the Popi M was that –

“a trial judge is not compelled to choose between two theories, where the evidence was unsatisfactory; he could decide the case on the basis that the claimant had not proved his case. Secondly it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation however improbable must be the cause unless all the relevant facts were known.”

And later at paragraph 4 he continued -

“what is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event.”

In Ide there were only two possible causes. Either the claimant had lost control and the handlebar fractured in the course of the accident which resulted, or the handlebar was defective and broke causing the accident. As the Court of Appeal put it at paragraph 20:

“Dr Chinn’s theory [the claimant’s loss of control] was rejected as most unlikely to be right. The judge had found that the bicycle had been regularly maintained and there was no suggestion of misuse or damage; the judge was entitled to infer, as the handle bar had failed in normal use for a bike of this type, that it was defective within the meaning of the Act. This was not a process of reasoning that led the judge to conclude that the defect was the cause because it was the least improbable of the two; once the other cause had been eliminated, all the evidence pointed to the defect in the handle bar. The judge was entitled to conclude that the defect was on the evidence the probable cause of the loss of control of the bike and the fall.”

Thomas LJ added that it was not necessary for the judge to go any further than he did or to make any finding as to why the part had failed. That is the effect, as I understand it, of the wording of the Act which requires only the proof of a causative defect and the elimination of a Section 4 defence.

The claimant accepts rightly that he has the burden of proving to the normal civil standard that the fracture of the tube caused this accident. When it comes to the further question of whether that fracture was a defect within the meaning of the Act there is an issue. In opening the case Mr Martin QC for the claimant stated in answer to my question that although the claimant did not have to give specificity he had to provide an explanation for the event and could not succeed if the court found his expert’s theories improbable. It was not clear whether he was accepting that there was an evidential burden on the claimant to satisfy the court that it was a defect and that it existed at the time of supply and that it was therefore for the claimant to disprove the defendant’s theories of the reason for the failure. In closing, however, he withdrew that concession and said that the plain meaning of the Act and its underlying Directive mean that the burden of proving a Section 4 defence rests with the defendant.

The Directive includes these recitals:

“Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;…

Whereas to protect the physical wellbeing and property of the consumer the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of safety which the public at large is entitled to expect;

Whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances

Whereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as the existence of certain exonerating circumstances”.

I was referred to textbook authority supporting his argument namely Product Liability: Miller and Goldberg at 13.17 and Clerk and Lindsell on Torts 20^th edition 11-68 supporting this construction of the Act.

There are cases which Mr Lynagh QC relies on and appear to take a different view and on which the defendant relies. These include Foster v Biocil, a County Court decision of 18.4.2000 by Recorder Booth QC and Richardson v LRC Products, a first instance decision of Ian Kennedy J. I have also been directed to McGlinchey v General Motors UK Limited [2012] CSIH 91, a decision of the Inner House of the Court of Session. These cases, particularly the last named, are coloured by failures on the part of the claimant to prove a causative defect within the meaning of the Act. I am content to accept the correctness of Mr Martin’s argument in closing submissions, which best gives effect to the plain intention of the Directive, while bearing in mind that it is a rare case which turns upon the incidence of the burden of proof. I have in mind the wise words of Lord Reid in McWilliams v Sir William Arrol & Co [1962] SC (HL) 70 at 83 when he said:

“In the end when all the evidence has been brought out it rarely matters where the onus originally lay: The question is which way the balance of probability has come to rest”.

In the present case there are the following competing theories as to causation. The claimant says the steerer tube fractured and he lost control. The defendant says (i) that on some prior occasion the steerer tube was bent in a high velocity accident or a failed attempt to steal the bike, and was incompetently repaired and weakened by an attempted re-straightening exercise; and/or (ii) that the claimant’s loss of control on the occasion of his accident was not caused by any component failing, but was a high velocity accident in the course of which he sustained his injury and the steerer tube was fractured.

In my judgment in relation to (i) above there is an evidential burden on the defendant to show that there was no defect in the component at the point of sale.

Both engineering experts agreed that if this bicycle was built according to its design and specification and fitted with a non defective steerer tube that tube ought not to fracture when the machine was ridden in normal road conditions, by which they meant to include bumps, potholes, kerb jumping and moderate off road activity.

These can be described as follows:-

The two engineering experts called were, for the claimant, Dr John Morgan, a senior lecturer for 30 years at the Department of Mechanical Engineering in the University of Bristol. For the defendant Dr P.S.J Crofton, senior tutor in the Mechanical Engineering Department at Imperial College London was retained. Both these experts have, as the case proceeded, radically changed their views on this matter in respects which are significant. Both were under considerable difficulties in the sense that key components of this bicycle were not recovered after it was removed from the accident scene, particularly the top and bottom bearing cups and their constituent components.

Dr Morgan’s initial opinion was that the steerer tube broke as a result of fatigue failure and it appeared “probable/possible” that a top bearing cup may have been missing, which would have exacerbated bending of the tube leading to early catastrophic failure. Both he and Dr Crofton agreed that a steerer tube should never break under normal cycling use. Dr Morgan now believes that over a period of time what began as a fatigue fracture process progressed to final failure. He accepts that the fracture exhibits no evidence of a classical fatigue fracture, which occurs when steel is exposed to a cycle of stresses which are lower than its yield strength but combine to cause an eventual fracture. He accepts that the progression of the fracture from its initiation site to the point where the final fracture occurred was a process of ductile overload (in metallurgical terms microvoid coalescence).

When he discovered that the grade of steel used for the tube was not 4130, as both experts had assumed, but 1020, a lower grade, he thought that it lent itself to plastic failure according to research, which when produced by him in re-examination proved nothing of the sort. He also believed there might have been a loose top cup originally fitted which permitted increased bending stress to fall on the steerer tube.

By the end of the trial for all intents and purposes he had abandoned the allegation that grade of steel was relevant. He agreed that there was nothing wrong with using 1020 steel for this component. As to the wrong bearing being fitted, he accepted that that would have left telltale marks on the inside of the headtube and said that he thought it was “a bit of a mystery” and “I have to go back to a loose bearing”. Without abandoning his expert in terms, Mr Martin addressed no argument to me that I should so find this point, and it receded in importance as the trial progressed.

In the second joint statement of the 5 February 2014 for the first time Dr Morgan mentioned the significance of what at trial became known as the “ladder marks”. They are now the cornerstone of the claimant’s case.

These were, I am satisfied, impressed on the inside of the steerer tube at some stage of the manufacturing process, probably at the stage of cold drawing. They are small horizontal marks and run up the length of the tube having the appearance of the rungs of a ladder without stiles. They are plainly visible to the naked eye. Dr Morgan had not mentioned these marks in his original report in December 2012 or his various further reports through 2013, although he had explained the importance of marks or scratches on a surface in relation his fatigue failure theory. It was not until Mr Scott, the single joint expert appointed by the court, drew his attention to the inside of the steerer tube (albeit for a different purpose) that he expressed for the first time the view that these ladder marks “could act as a classic stress raiser”.

His final position was that the fracture initiated on the steerer tube not as a result of a classical fatigue fracture, as he called it, but was brought on by repeated bending, as in the case of a paperclip bent to and fro, probably caused by the ladder marks as a stress raiser. The fracture itself was, he agreed, all in the form of a ductile overload failure. The final failure occurred when the brakes were released which would cause tensile loading.

For his part Dr Crofton has also changed his position in material respects. His initial view in his report of July 2013 was that there had been a prior incident in which the tube had been bent and then re-straightened, probably without the upper bearing set, and the bike was then used in this configuration “for some time”, leaving asymmetric wear patterns on the lower crown race and other tell-tale marks now evident on the steerer tube. “Eventually” and perhaps while trying to stop suddenly going downhill, the claimant overloaded the previously weakened tube which fractured. His supplementary report of March 2014 repeated this view that the bike had been ridden in this form “for a significant period of time”. In evidence he now believes this period was to be measured in hours or days, as he said for the first time in the witness box; that was because he had cut through the crown race of another Raw 2 and found that the metal was softer than he had expected, and thus the eccentric marks seen on the crash bike would not have taken long to develop. But more to the point he was now contending for a final accident of much greater severity and moment that an application of the brakes would produce. He says this bike has been in two serious accidents, and the final failure was the result of “a very large crash”.

I have summarised rather than set out in full the many areas of dispute between these two witnesses, which occupied much of the trial. Both were at times open to the criticism of partisanship, and the debate between them has been rendered far less significant than it would have been by the remaining expert evidence, to which I now turn.

The critical turning point in this case is the evidence of Mr Scott, who had been appointed by the court on the application of the defendant and who was identified and nominated by Dr Morgan. The questions he was asked included (from Dr Morgan) whether he could identify where the fracture started, and whether it could have been initiated as a result of prior repeated bending of the tube, and (from Dr Crofton) what was the most probable fracture mechanism, and whether the plastic deformation around the circumference of the fractured surface was an accepted characteristic of fatigue crack propagation. He was instructed as a fractographer and plainly has very considerable experience and skill in this sphere.

In the event he gave live evidence before me. This is an unusual state of affairs with a court appointed sole joint expert but both sides urged me to call him and I agreed. I had my attention drawn by Mr Lynagh to what the Court of Appeal said in Coopers Payen Limited v Southampton Container Terminal [2004] Vol 1 Lloyds Law Reports 331 at paragraphs 41-43. I advised Mr Scott before he started on his evidence that he was free to decline any questions that he thought travelled outside the sphere of fractography and the explanation for the fracture in this case and he understood the effect of what I said.

The key points of his findings and evidence are these:

As Dr Morgan put it, the ladder markings are now “the main point” in this case. He sees them as stress raisers which could have initiated fatigue cracks which would then in turn have led into a failure through ductile overload. I must now rule out fatigue cracks as having any place in the analysis of what happened to cause this failure. No expert witness has said that these ladder marks could have initiated microvoid coalescence. It is important to note that Mr Scott on a number of occasions in his reports and in his evidence said that on balance he considered that the fracture initiation site was on the external not internal surface of the tube where the smaller of the two bulges was to be found as a result of the straightening exercise. The crack having been so initiated, he thought the ladder marks may have directed it, but he believed the fracture could have happened irrespective of the ladder marks.

Mr Martin’s final position, in his skilful cross examination of Mr Scott and his realistic final submissions to me, represented an abandonment, to put it bluntly, of Dr Morgan’s final position and an attempt to elicit from Mr Scott, if he could, that the ladder marks were causative of the ductile overload fracture. He had already identified an obvious candidate for this role, namely the prior weakening of the tube and the smaller bulge. Dr Crofton, in Appendix 1 to his further supplementary report of March 2014 carried out a careful and well explained calculation of the theoretical stresses likely to be felt by the steerer tube under various loading conditions, and at the fracture initiation site under heavy braking that would have been about 100 N whereas cold drawn 1020 steel had a yield stress of over 500 N. He concluded that “some serious incident” must have occurred to cause the final overload fracture, which could not have occurred simply due to braking, even allowing for the intervening incident which compromised the ductility of the tube.

Mr Scott said in his report that the greatest contribution to the overload failure was made by the previous bend and the attempt to repair it by re-bending, each of which would have weakened the ductility of the tube. In evidence he said the ladder marks were “associated” with the fracture initiation site, and in a positional sense they plainly did coincide with it. He accepted that they may have had a contributory role and played a part in the fracture, but were probably more relevant to its propagation rather than initiation, assisting the fracture rather than being the prime cause, directing it so that it followed the line of least resistance. He pointed out that while the ladder mark indentations were themselves a stress raiser, they amounted to a small amount of additional cold work on the tube which would have had the effect of stretching the metal and so increasing its hardness and strength, but only by a very small amount. He said the fracture propagated at a speed of 350 metres per second.

Based on this evidence Mr Martin submits that the ladder marks were a defect in the form of a potential stress raiser present from the moment of supply and which as a matter of probability made a material contribution to the fracture. He does not have the support even of Dr Morgan for this submission, as his view was that they could have acted as the cause of crack initiation due to a fatigue mode, and not of ductile overload itself. It was a valiant attempt to rescue his case from the wreckage of Dr Morgan’s theories but in my judgment it has failed.

I am therefore driven by the scientific evidence to draw the following inferences as to how this failure happened.

First there must on a clear balance of probability have been a prior event in the course of which the tube was damaged by being bent and further damaged by being subjected to a crude and amateur attempt at repair by re-straightening. The claimant and his witnesses deny such an event ever occurred, but I confine myself to saying that I do not accept that evidence. Mr Martin makes the valid point that it would have made no sense for the claimant to have done this or allowed others to do it on his behalf, given his 3 year care plan, and without Mr Scott’s evidence this would have carried significant weight and given me pause. He also says that the attempted theft scenario envisaged by Dr Crofton as a possible prior event must be ruled out as too far-fetched, and with that I agree. But Mr Lynagh points to the fact that the claimant worked each day in an engineering environment, where he would have had access to tools and other facilities, including students who may have been all too ready to assist or encourage him in the repair task. While the defendant cannot be specific as to how it happened, the evidence drives me to conclude that some accident in the nature of a collision, or aggressive jumping or similar riding on the bike involving the placing of excessive bending force on the tube took place and there was a botched attempt to repair it which made it worse.

The tube has therefore been shown by the defendants, on a clear balance of probability, not to have been defective at the relevant time, namely on the date of supply. There was nothing defective about its design, assembly or the steel from which it was made.

Secondly the probable cause of the final fracture was a second accident, involving considerable speed and force. That this is so is again a matter of reasonable inference from the expert evidence, and it is not possible to suppose exactly how it happened; the claimant may have been riding too fast, to catch his friend who was 100 yards or so ahead, and momentarily lost concentration or been distracted so coming into collision with one of the row of fixed metal stanchions he was riding past. This is likely to have been the violent event which caused the fracture of the tube by ductile overload, which occurred as a result of it and was not the cause of it.

Those being my findings of fact in this case I am obliged, with great regret because of the severity of this young man’s injuries, to dismiss this claim.