Company not liable despite 'unsatisfactory' product

Claire Busby v Berkshire Bed Company [09.11.18]

A recent decision by the High Court takes a common sense approach to liability, despite breaches of duty by the defendant.


The claim concerned a divan bed bought by Ms Busby, comprising two bases designed to be fixed together and supported by feet, overlaid by a mattress. Berkshire Bed Company (BB) supplied the bed and its employees assembled it at Ms Busby’s house on 7 August 2013. Eight days later, Ms Busby fell backwards off the end of the bed during intercourse with her partner, sustaining serious spinal injuries resulting in tetraplegia.

Ms Busby and her partner did not notice anything unusual about the bed before the accident. Four months afterwards, Ms Busby’s sister noticed two feet were missing, causing a difference in level between the two bases and a slight slope to the mattress placed on top.

Ms Busby blamed her accident on the defective nature of the bed, specifically that it lacked two feet, and brought a claim against BB. BB denied the allegations and suggested that someone else had removed the bed’s feet after assembly.


For BB to be strictly liable under the Consumer Protection Act 1987, Ms Busby had to prove it had supplied the bed in a defective condition. The judge concluded there was no defect in the bed, despite BB assembling it minus two feet, because the fault did not materially affect safety and the bed could be used as intended.

Nevertheless, the judge found that BB had provided goods, which were not of satisfactory quality, and had assembled the bed without using reasonable skill and care. BB was therefore in breach of its contractual duties under the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982, and was negligent.

BB argued that nobody would have contemplated that a minor difference in base levels might cause a fall. The judge agreed, and found Ms Busby’s fall was not a foreseeable consequence of BB’s breaches of duty, and was caused solely by Ms Busby losing her balance while moving.

The claim accordingly failed.


Manufacturers, suppliers, own-branders and importers will welcome this decision, along with their product liability insurers. Although this claim concerned the supply of a bed, the decision is relevant to claims concerning the sale and supply of all kinds of products.

The judge took a common sense approach, and did not find the product unsafe or defective simply because a serious accident had occurred. Furthermore, although BB’s supply of the bed breached its contractual and tortious obligations, he was willing to apply the foreseeability test strictly, which saw the claim defeated.

While there is comfort in the courts taking a robust approach, it is obviously better to avoid claims in the first place with effective risk management. The design, manufacture, supply and assembly of products should always be undertaken with care, with suitable instructions supplied and warnings given in writing where appropriate.

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