Busby v Berkshire Bed Company Litd, Court of Appeal - Queen's Bench Division, November 09, 2018, [2018] EWHC 2976 (QB)

Resolution Date:November 09, 2018
Issuing Organization:Queen's Bench Division
Actores:Busby v Berkshire Bed Company Litd
 
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Neutral Citation Number: [2018] EWHC 2976 (QB).

Case No: HQ116P02856

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Date: 9th November 2018

Before :

HIS HONOUR JUDGE COTTER Q.C.

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Between :

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Winston Hunter Q.C. (instructed by Simpson Millar) for the Claimant

Neil Block Q.C. (instructed by DAC Beachcroft) for the Defendant

Hearing dates: 16th ,17th, 18th, 19th October 2018

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JUDGMENT

Page 3

His Honour Judge Cotter Q.C. :

Content

Introduction

  1. The Defendant company sells beds. It operates from premises at a shopping centre in Maidenhead under a `` Beds are Uzzz'' franchise. It purchased beds from Kozee Sleep ( Midlands) Limited, but branded them under its own name. The Claimant (who shall refer to as ``Ms Busby'') purchased such a bed; a double divan.

  2. On 15th of August 2013 Ms Busby fell off the end of the bed sustaining devastating personal injury. It is her case that the accident was caused by a defect in the bed, alternatively that the construction of the bed was in breach of the contract between the parties and/or that the Defendant was negligent in relation to the supply and assembly of the bed. This is the judgment upon the liability issues within her personal injury claim against the Defendant.

    Outline facts

  3. On 23 July 2013, Ms Busby ordered five beds from the Defendant company. These consisted of four single beds and a super king size double divan (`the divan bed'). On 4th August, she also purchased 4 headboards for the single beds.

  4. The divan bed consisted of;

    (a) Two ottoman divan bases which were designed to be joined together and retained in place by a clip over the edges of the two bases and a screw through the lids. The main attraction of ottoman bed bases is their storage capability. The lid of the divan base is designed to be lifted, with the assistance of gas struts taking the weight of the mattress, revealing the storage space.

    (b) A Naturelle 120 mattress

  5. The divan bed is designed to accommodate castors or ``gliders''( in effect a foot with a smooth base, which unlike a castor cannot be wheeled) underneath the bed, the effect of which is to raise the bed base by 40 mm off the floor.

  6. On 7th August 2013, the beds which had been ordered were delivered to Ms Busby's home at Rosewood House, Maidenhead, about two miles from the Defendant's premises. Two employees from the Defendant company, Mr Jones and Mr Ford, attended to deliver and assemble the beds.

  7. What happened during that delivery on 7th August 2013 and the exact condition that the divan bed was left in by the Defendant's employees, were areas of factual dispute at the heart of the case.

  8. Ms Busby slept in the divan bed between the 7th and 15th August 2013. For two nights she was joined by her partner Mr Marshall. Neither she or Mr Marshall noticed anything untoward with the bed.

  9. On the evening of 15th August 2013, Ms Busby was having sex with Mr Marshall on the bed. She fell from the end of the bed onto her head, bending her neck, in the course of which she suffered a bilateral dislocation of C4 on C5 resulting in tetraplegia. She was left at the foot of the bed, partially leaning against it and unable to move.

  10. Two paramedics, Ms Caroline Edwards and Mr Ludwig Holzer attended the scene as an emergency. Thereafter they were joined by other ambulance staff. The bed was split into its two component divans to allow better access to Ms Busby and she was taken from the property.

  11. Ms Busby remained critically ill from many months. In December 2013 her sister Natalie returned to the property, which had remained empty save for the presence of a builder/handyman, Mr Hazier, who had been living in an annex. When she entered the bedroom she noticed that the bed was not even across its width due the fact that the two gliders which should have been at the base of the left-hand divan, were missing. She reported this back to Ms Busby.

  12. Ms Busby blames her accident upon the defective nature of the bed, specifically that it was missing two gliders, and on 19th October 2015 (more than two years after the accident) a letter of claim was sent to the Defendant. Liability was denied. Specifically, it was denied that the divan bed was left in Ms Busby's house with two gliders missing and, even if it was, that the missing gliders were not the cause of her fall from the bed. Subsequently on 12th August 2016 proceedings were issued.

  13. Determination of the issue of liability requires consideration of disputes as to fact and the application of settled legal principles to the facts as found. I shall briefly outline the respective cases as to what lead up to the accident and how it occurred.

    Claimant's case

  14. It is the Claimants case that there were problems with each of the beds which were delivered. One of the children's beds opened up the wrong way ( i.e. the storage space was not accessed in the manner requested) and there were problems with fixing all of the headboards supplied. So the delivery faced problems. The divan bed was assembled last. Mr Jones and Mr Ford refused to fit a headboard which Ms Busby had purchased from another source. There was a problem with ``some of the feet'' on the bed. Although he was only fourteen, Ms Busby's son Samuel Nash was asked to sign for the beds and was informed that there was a problem and that the men would come back. He did not give much thought to the problem with the ``feet'' and did not tell his mother.

  15. Ms Busy employed two maids/housekeepers Ms Martin and ``Aneta'', who made the divan bed up. Neither appears to have addressed their minds to the missing ``feet''; but Ms Martin recollects that the divan lid did not open properly (as she attempted to store some clothes/shoes) as the two sides did not lift up as one. This means that the screw which should have connected them was missing.

  16. Neither Ms Busby or Mr Marshall noticed any problem with the bed despite the fact that the missing ``feet'', which were in fact missing gliders, meant that there was a difference in level where the two sperate divans joined (which tapered from no difference in level at the head end to a significant step at the foot of the bed). The bed also sloped. Whilst having sex Ms Busby was in the process of repositioning herself on the bed when she fell due to the difference in level. Her weight was placed on the end of the mattress in the location where there was an absence of the expected support. So the missing gliders caused or materially contributed to her fall from the bed.

  17. When the bed was eventually examined after the accident it was found to be missing not only two gliders but also one socket which would house a glider.

    Defendant's case

  18. It is the Defendant's case that all four gliders on the left-hand base, and those on the right-hand base were properly installed; there was no absence of a socket housing at the time of delivery and assembly. The bed was not left sloping. When left by the Defendant's employees, the two component divans were not left free to move relative to each other, the lids were secured by the appropriate metal bolt. Further the bases were secured by at least one metal clip. The Defendant is unaware, so has no positive case, as to who may have removed the items about which the complaint is made either before or after the accident.

  19. So the bed was not left with the alleged defects and even if it had been it was not the cause of the accident. The simple fact is that Ms Busby leant too far backwards off the bed and lost her balance.

    Law

  20. The causes of action advanced by Ms Busby require the application of settled legal principles to the facts. The claim is pleaded in contract, in negligence and pursuant to the Consumer Protection Act 1987.

  21. As for the claim that the Defendant is liable by reason of the provisions of the Consumer Protection Act 1987 it is common ground that the Defendant was not the manufacturer of the bed in question. However, it branded the beds as its own and, as such, had a potential liability as a producer of the goods pursuant to the Consumer Protection Act 1987. Ms Busby contends that the divan bed as supplied was defective within the meaning of section 3 of the Act. Although a number of `defects' in the bed as supplied were pleaded, the only defect that is material for the purposes of the causation of Ms Busby's injury is that relating to the missing gliders. The Act does not require that she proves foreseeability, provided that she establishes that the defect `caused' in the sense of materially contributed to the fall from the bed.

  22. The claims in contract are brought under the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. It is common ground that the contractual relationship gave rise to duties under both Acts. It is Ms Busby's case that the absence of the gliders was not a trivial defect but instead rendered the bed not of satisfactory quality. Further, failure to supply and fit the gliders placed the Defendant in breach of its duties pursuant to section 13 of the 1982 Act in that, the said service was not carried out with reasonable skill and care as was expected.

  23. The pleaded case in negligence is founded on the Defendant's failure to inform Ms Busby of the fact that the gliders to the left-hand divan had not been fitted. Had such information been provided, she would have been aware of the difference in level between the divans and effect on the stability and firmness of the mattress (in particular at the foot of the left-hand divan in the area where it abutted the right-hand divan).

    Evidence

  24. I heard oral from Ms Bubsy and from Natalie Busby ( her sister), Catherine Busby ( her mother), Sharon Martin ( her housekeeper), Samuel Nash (her son) and John Marshall ( her partner). I also heard from the two paramedics who attended the scene of the accident, Ms...

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