Galaxy Note 7: can liability be avoided?

The latest global recall relates to the Galaxy Note 7 which, just over a week ago, was recalled by Samsung after reports emerged that the device could explode during or after charging.  On the T-Mobile website, as at 9 September 2016, T-Mobile confirms that Samsung is recalling the Galaxy Note 7 due to “battery safety concerns”.  T-Mobile is clear about the risks involved in using the Galaxy and report that the number of fires reported globally as of 1 September, were 35.  In the context of the number sold worldwide this is a tiny percentage but nevertheless such failure could be catastrophic and as a supplier of the product, T-Mobile has sensibly taken the precaution of providing a frank statement about the risks involved in continuing to use the product.

In fact the Federal Aviation Administration is so concerned about the risks that it has issued warnings to passengers against packing the phones into any checked in luggage.  Quantas and Virgin Australia have also told customers not to charge or use the phone during flights, which is sensible advice given the consequences which could occur if there were to be a failure.

The Samsung statement at Samsung Newsroom likewise provides a warning as to the fault with the phones, this being confirmed as a battery cell issue albeit there appears to be no reference to the word “fire” and as at 9 September 2016 it did not advise the user to stop charging the phone. Notably, on the 10 September, Samsung’s press release changed and now urges Galaxy Note 7 users to power down the phones and to immediately participate in the replacement program, albeit again there is no mention of the risks of fire if the consumer continues to use the phone. No doubt this updated advice stems from Samsung collaborating with national regulatory bodies as to the safety risk involved.

It would be interesting to see therefore if the statement made by Samsung, coupled with T-Mobile as supplier and other recall information provided by phone retailers, would be sufficient to allow this manufacturer and suppliers to avoid liability if a consumer suffers a loss arising from continued use and having been warned of the risks of doing so. This may be the case following the recent Court of Appeal judgment in Howmet Limited v Economy Devices Limited (31/08/2016).

Given that it is difficult to see how anyone could have avoided the publicity surrounding this product, this does present an interesting point and one which may become much debated should someone suffer serious damage arising from the defect.


Carys Oatham, partner, BLM

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