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DWF Defendant Insurance Scotland: Case Alert – November 2021

10 November 2021

Insurance litigation expert, Caroline Coyle, reviews two case updates in this edition and provides her commentary on the outcomes and what this could mean for future claims. 

Failure of bicycle pivot bolt – Manufacturing defect or cyclist error?

MacDonald v Cube Bikes UK Ltd, All Scotland Sheriff Personal Injury Court, Sheriff J K Mundy, 15 September 2021.

Facts

  • Cyclist sought damages for personal injury sustained when he fell from his mountain bike whilst competing in a triathlon event. 
  • The first defender sold the bike and the bike had been manufactured by the second defender
  • During the triathlon event the pivot bolt snapped, causing the pursuer to jolt forward and fall, hitting his head. 

Issues

  • The action was brought under the Consumer Protection Act 1987 s.2 on the basis that the pursuer's injury was caused by a defect in the mountain bike's manufacture resulting in the fracture of the pivot bolt. The action against the first defender was subsequently abandoned. 
  • The pursuer contended that s.2 of the Act provided for strict liability on the part of the supplier in the event of injury caused by a defect, that a "defect" had to be interpreted plainly and favourably to consumers in the sense of what an owner was entitled to expect, and that he was entitled to expect that, without professional maintenance or unreasonable misuse, the pivot bolt would not snap or shear on a bicycle which was only six months old. 
  • The second defender denied that there was any defect in the pivot bolt and that the problem had arisen as the pursuer had tightened several bolts in excess of their specification.   

Decision - decree of absolvitor granted

  • It was up to the pursuer to prove damage, the defect and the causal relationship between the defect and damage.   
  • Whilst not necessary to establish the precise cause that led to the bolt snapping, it was not possible to infer defectiveness merely from the occurrence of the failure in the pivot bolt. 
  • The pursuer's adjustments to the bike were contrary to the instructions in the handbook
  • The overtightening of the pivot bolt by the pursuer constituted misuse, which was not reasonable.

DWF takeaway - important consideration of "defect"

  1. Held no defect established.  The pursuer had not maintained and serviced the bike in line with guidelines and had overtightened bolts. 
  2. Even if there had been a defect this was not causative of the accident. 

Disease - Scots law damages for "loss of society" awarded  in English court

Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021] EWHC 2924 (QB)

Facts - an action for damages was brought by the family of Mr Haggarty who worked at an explosives factory based in Ardeer (Stevenston), Scotland in the 1970s. Mr Haggarty subsequently  contracted cancer as a result of exposure to asbestos in the factory.  The defenders accepted that the pursuer was required to handle asbestos without adequate warning or protection. Mr Haggarty was diagnosed with mesothelioma in 2018 and died the following year.  

Issues – the action was raised in the English High Court by the widow, children and stepchildren of the deceased, Mr Haggarty.  While Mr Haggarty's family alleged he contracted mesothelioma at work in Scotland, they resided in England at the time of raising the action.    

This claim was unusual as Scots law was the applicable law despite the action proceeding in England.   This meant that claims for "loss of society", not permissible in England and Wales, were relevant and recoverable heads of claim.  

The loss of society awards for (a) distress and anxiety endured in contemplation of the deceased’s suffering (b) grief and sorrow caused by the deceased’s death and (c) the loss of such non-pecuniary benefit as they may have derived from the deceased’s “society and guidance” fell to be determined by an English judge.  

Decision – Under the "loss of society" head of claim an award of £115,000 was made to  the widow and between £35,000 to £40,000 to each child.  If English law had governed the awards,  no general damages award would have been made and there would have been a statutory entitlement to £12,980 for bereavement for the widow only.

DWF takeaway – A fatal case does not necessarily require to be raised in the Scottish courts before damages are assessed on the basis of Scots law. Where the applicable law is arguably Scottish, the location of the court is no barrier to recovery of damages under Scottish principles. 

If you require any further information, please contact Caroline Coyle or your usual DWF insurance contact.

Further Reading