Claire Busby v Berkshire Bed Company Limited

The case of Claire Busby v Berkshire Bed Company [https://www.bailii.org/ew/cases/EWHC/QB/2018/2976.html] is equally strange and tragic. It was heavily reported in the tabloid press; most probably due to the unusual circumstances in which Ms Busby came to suffer such serious injuries. Her case came to trial before His Honour Judge (HHJ) Cotter QC the High Court in October 2018 and he handed down judgment on 9 November 2018.

Ms Busby suffered life changing and catastrophic injuries as a result of an innocuous and freak accident at her home on 15 August 2013. Ms Busby had been in bed with her partner when she fell off the end of her bed whilst trying to manoeuvre herself into a different position. She fell awkwardly onto the floor. She was unable to move her body. Emergency services were called to the scene and she was taken to hospital. She was diagnosed with a serious spinal cord injury at C4 level, resulting in tetraplegia.

Ms Busby was unable to return to the property as she needed lifesaving medical treatment and then inpatient rehabilitation at a specialist spinal unit. Some 4 months after the accident, Ms Busby’s sister attended the house where the accident occurred. When her sister inspected the bed which Ms Busby had fallen from, she noted that it was not even across the width. When she inspected the left-hand divan and she noted that two gliders were missing. She considered that this caused the height discrepancy. This news was reported to Ms Busby and no doubt she sought legal advice on a potential claim on that basis.

It is important to understand some further factual background.  Just before the accident, Ms Busby had moved into a new house following the breakdown of her marriage. She purchased five beds from the Berkshire Bed Company on 23 July 2013. This included the “offending” bed, which was a super king size double divan. The bed was delivered on 7 August 2013, whilst Ms Busby was absent from the house. Her son, Samuel, was at the house to greet the delivery men. He let them in and then the delivery men attempted to assemble the beds.  Samuel provided evidence at trial confirming that there were several problems with the beds delivered which became apparent during their assembly. Importantly, he confirmed that there were missing gliders, which the delivery drivers said they would rectify at a later date.  The delivery drivers denied this account but their evidence at trial was inconsistent and somewhat unreliable.

Ms Busby slept on the bed over the course of the next week and did not notice any discrepancy with the left-hand divan.

Ms Busby brought her claim on three grounds. Firstly, that the bed company had breached the Consumer Protection Act 1987 as the bed was defective as defined by section 3 of the Act. Secondly, that the company was in breach of contract by virtue of the bed not being of satisfactory quality under the terms of the Sales of Goods Act 1979 and the Supply of Goods and Services Act 1982. Thirdly and finally, she alleged the company was negligent in failing to notify her that the gliders had not been fitted.

HHJ Cotter heard from a number of lay witnesses and two engineering expert witnesses. He made a finding of fact that the bed company had left the bed at Ms Busby’s property with two gliders missing from the left-hand divan. Unfortunately for Ms Busby, that was as good as it got for her in term of HHJ Cotter’s judgment.

The claim effectively failed on HHJ Cotter’s finding of fact on the cause of the accident. Ultimately, he found that the missing gliders was not the cause of why Ms Busby fell from the bed.

I suspect one of the reasons this case was so widely reported in the press, were the actions of Ms Busby at the time the accident occurred. At the time of the accident she was having sex with her partner, Mr Marshall. She was kneeling at the bottom of bed with her bottom resting on her feet, and importantly it was found that she was positioned on the right-hand side with Mr Marshall lying on the left-hand side.  Mr Marshall’s head was by the top of the bed and his feet were at the bottom. Ms Busby had previously stated in her witness evidence that she was on the left-hand side of the bed but changed her evidence during cross-examination. Ms Busby then attempted to swing her legs around from underneath her, so she would have been effectively lying with her head at the bottom of the bed with her feet at the top. She attempted to get herself in a position where she was top and tail with Mr Marshall. During the course of this manoeuvre, she lost balance and fell backwards off the bed and her legs flipped upwards. This caused her to fall from the bottom of the bed and land awkwardly on the floor.

HHJ Cotter found that the difference in level between the two divans did not play any part in Ms Busby’s fall. It was a simple but tragic fall when she overbalanced whilst completing an awkward manoeuvre. Therefore, Ms Busby claim failed on that basis.

HHJ Cotter still went on to consider whether liability would have been established if Ms Busby had proved the missing gliders has been causative of her fall.

In respect of the allegation that the bed was defective pursuant to the Consumer Protection Act 1987. HHJ Cotter had to consider whether supplying a bed without two gliders rendered it defective and ultimately, he found that it did not. He carefully considered the construction of section 3 of the Act, which states “there is a defect in a product for the purposes of this part if the safety of the product is not such as persons are generally entitled to expect”. In interpreting the phrase “such as persons generally are entitled to expert” he applied the judgement of Burton J in A v NBA in which he stated that the test is not that of an absolute level of safety, nor an absolute level of liability for any harm caused by a catastrophic event. Judge Cotter found that the defect caused by the missing gliders was minimal and easily rectifiable. He found that the bed would not be considered defective as defined by the Act and the claim would have failed on that ground.

In respect of the claims in negligence and breach of contract, it was accepted by the parties that the failure to apply all the gliders rendered the bed not of satisfactory quality. Therefore, breach was clear, but HHJ Cotter found that the claims failed on the basis of remoteness of damage. He accepted the submissions on behalf of the bed company that it was simply not foreseeable that it would have been in anyone’s contemplation that the difference in levels between the two divans would potentially cause a person to fall out of bed. He found that it required a most unfortunate and unusual combination of positing on the bed and movement of the body for this accident to have occurred. This meant that even if Ms Busby had established the missing gliders were the cause of her fall, that she would not have succeeded with her claims on the grounds of remoteness of damage i.e. it was not reasonably foreseeable that the missing gliders would have caused such an accident.

Whilst ultimately the case failed on the facts, I am not sure I fully agree with HHJ Cotter’s finding on the issue of remoteness of damage. In my view, it is completely foreseeable that an unlevel bed may cause someone to fall from it. Whilst you may not expect such significant injuries to be suffered, that is irrelevant to determination of remoteness.