Richardson v LRC Products Ltd - High Court, Queen's Bench Division, Mr Justice Ian Kennedy, 2 February 2000

Mrs Richardson failed in a claim for damages for personal injuries suffered when she became pregnant after the teat of a condom broke off during intercourse with her husband. The claim was based solely on the strict liability provisions of the Consumer Protection Act 1987 (CPA) and not on negligence.

A large part of the judgment was taken up with analysis of the expert evidence of whether the cracks which were noted by experts when they examined the condom some months after the event and attributed to ozone damage were created during the manufacturing process (in which case it was accepted that the product would have been defective) or occurred after the failure. The judge preferred the defendant’s expert evidence that the damage probably occurred post-fracture and that the ozone cracking was not the cause of failure.

The cause of failure therefore remained unexplained. However, the judge noted expert epidemiological evidence of a surprising coincidence in the number of breaks experienced by particular couples. The judge did not pursue the possible implication of “user error” but did comment that “if fractures can happen by chance to those couples they must, in the nature of things, happen to any user”.

This observation led to the judge’s brief conclusion as to the safety to be expected of a condom, in which he distinguished between users’ subjective expectations and the more objective legal test, taking into account the circumstances of promotion, use and manufacturing quality:

“Naturally enough the users’ expectation is that a condom will not fail. There are no claims made by the defendants that one will never fail and no-one has ever supposed that any method of contraception intended to defeat nature will be one hundred per cent effective. This must be so in the case of a condom where the product is required to a degree at least to be, in the jargon, “user friendly”. So to the question: does a fracture prove a defect? I answer, no, not by itself. [The expert epidemiologist] has shown that there are inexplicable failures .... and the defendant’s [products] .... were manufactured to a standard in excess of the relevant British standard.”

The above decision disposed of the case but the judge went on to comment on some other aspects. First, he said that the correct interpretation of the “development risk” defence in section 4(1)(e) of the CPA is

“... not what the defendants knew but what they could have known if they 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 able to reveal its existence in every case.”

Secondly, he made clear that he would have considered the claimant contributorily negligent in not seeking advice on obtaining after-the-event hormonal contraception. He rejected her evidence that she thought she would be unable to obtain a “morning after pill” because it was a Saturday afternoon and as she was unable to contact her GP a hospital would not treat her as an emergency. Had she sought advice, she would have been told that the pill could be taken up to three days later.

Thirdly, the judge noted the policy of the law to exclude recovery for the costs of upbringing of an unconvenanted healthy child. Recent cases on failed sterilization have been permitted in relation to the costs of pregnancy and childbirth itself. However, neither the defendant nor the judge seem to have questioned whether the case could be based on the CPA since its liability arises where a product is unsafe (the definition of defect under the CPA is where the product does not provide the safety to be expected). There was no discussion of whether the product was in fact unsafe or merely of poor quality: concentration on the word “defective” alone can lead to this point being overlooked. Further, no evidence was noted in the judgment of an injury other than pregnancy. The claim based on a lack of quality would have had a greater chance of success but would have had to have been brought against the retailer.

For further information on product liability issues, please contact Chris Hodges on Tel: 0207 367 2738 or e-mail@ csh@cms-cmck.com