Abouzaid v Mothercare (UK) Limited

United Kingdom
Court of Appeal (Pill LJ, Chadwick LJ, Wright J) 21 December 2000

This product liability case raises the issue of liability for old products: if it was reasonable to make a product at an earlier time in a particular way that would now be unreasonable, was the product defective at the earlier time and, if so, is the producer not liable because the defect was not discoverable? Some of the reasoning and conclusions of the judges involved are highly questionable, although the result may be correct.

The facts

On 16 November 1990 the plaintiff, who was then 12 years old, was helping his mother attach a "Cosytoes" fleece-lined sleeping bag to his younger brother's pushchair. The product was intended to be attached to pushchairs by two elasticated straps which were to be passed around the back of the pushchair from each side of it and joined by a metal buckle attached to one of the straps. The claimant was attempting to join the straps by attaching the buckle when one of the elastic straps slipped from his grasp, following which the taught elastic flew back and the buckle hit him in his left eye, which was at the level of the buckle. The retina of the eye was partly detached, leaving the claimant with no central vision in that eye.

The first instance decision

The claimant brought an action both under the Consumer Protection Act 1987 ("CPA") and in negligence. The parties jointly instructed a highly qualified and experienced consulting engineer, Dr Gordon Hayward, to produce a report. His report, dated 29 February 2000, included the following statements:

4.5 Knowledge of the potential hazard

4.5.1 Despite representing different interest groups, all three experts I consulted were convinced that there had been no discussion (in any standards committee they served on) of a potential hazard to eyes from elastic straps on any child care products at any time during their involvement. Nor did any of them recall having heard of or envisaged such an injury until I described this one to them. Nor were any of them aware of any mechanical safety problem with cosytoes as a general class of products.

5.1 The level of safety that consumers can reasonably expect

5.1.1However, the act makes clear that consumers cannot expect to be warned by manufacturers of hazards that the manufacturers themselves could not have been expected to be aware of. (See 4.1.2.) [which sets out the provisions of section 4(1)(e) of the CPA]

5.1.2 I conclude therefore that (particularly in the absence of any specific requirements for a particular product in standards of regulations) the level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.

5.2.3. .......

5.2.4 I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident.

5.3 The state of scientific and technical knowledge in 1990

5.3.1 From 4.5 I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for cosytoes could pose a hazard to the eyes of children or adults, since the potential risk at that time had not been recognised even by experts in the safety of such childcare products.

5.4 Whether the cosytoes had a safety defect

5.4.1 I therefore conclude that the product did not have a safety defect of which a supplier could reasonably have been expected to be aware of prior to notification of this particular accident suffered by Mr Abouzaid".

In cross-examination, Dr Hayward said:

"I believe that if I (or any other expert on the standards committee) had been presented with this product in 1990 we would not have anticipated this accident mechanism. Only with the hindsight provided by accident reports would it have occurred to any of us. I would not therefore have expected any greater foresight by a supplier (unless they had additional knowledge from previous customer complaints). The first case on a public database was not recorded until 1992 ... and this was neither identical nor as serious an injury."

On 23 May 2000 His Honour Judge Simpson sitting at the Mayor's and City of London Court gave judgment for the claimant for GBP 35,995.72, seemingly on both the strict liability and negligence grounds. Although the defendant was not the physical manufacturer of the product, it was accepted that it qualified as a "producer" of the product under the CPA.

The Appeal

The Court of Appeal found that the defendant had not been negligent, but that the product was defective. The Court of Appeal permitted the defendant to argue that, even if the product were defective, the defendant was not liable under the "development risk" defence of section 4(1)(e) of the CPA, but the Court did not accept that the defendant could rely on that defence in the circumstances of this case. The Court's reasoning raises a number of questions.

The Court of Appeal rightly pointed out that the report of Dr Hayward, and subsequently the judgement at first instance, had elided different legal questions, namely (a) issues of negligence, particularly what a reasonable manufacturer would have done in 1990 given the state of knowledge at the time, (b) whether the product was defective under the CPA, for which the test is whether the product provided the level of safety when it was first put into circulation as persons generally were entitled to expect (section 3), and (c) whether the development risk defence was made out, namely that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control (section 4(1)(e)). However, some parts of the legal analysis of the Court of Appeal are themselves open to question, as appears below.

Undoubtedly, the trial at first instance would have proceeded more logically if the parties had ensured that Dr Hayward had been provided with a structured series of legal questions for him to answer in his report, which separated out issues (a) to (c) above. The claimant should have pleaded the defect alleged with more particularity and the defendant should have pleaded the development risk defence (which it did not do at all at this stage).

Common law negligence

All three judges in the Court of Appeal had no difficulty in concluding, on the basis of Dr Hayward's evidence, that the manufacturer of the product was not negligent in 1990. It is not clear whether this conclusion was in fact reached (as it should logically have been) on the basis of an inquiry into the state of knowledge of the company that was the actual designer or manufacturer of the product: the judgment does not go into the identity of different companies who may have performed the different functions of design, production, import, distribution and retail sale. It is not clear, for example, whether the claimant pleaded that the defendant was negligent in design, production or failure to test the product. There also seems to have been no mention of any relevant standards or any testing which could or should have been done to check for what was arguably an obvious hazard.

The court's conclusion was based on the expert evidence that the occurrence of such an accident as this would not have been within the reasonable contemplation of the defendant in the light of his then state of knowledge" . Pill L J said:

"A decision whether there is a breach of duty in negligence in manufacturing a product which causes injury involves an assessment of the extent of the risk of injury it presents, along with other factors. In this context, the absence of previous comparable accidents, relied on by Dr Hayward, is a relevant factor. Elastic tape is a commonly used fabric and experience had not shown that its use in children's products such as this one was likely to cause injury". In Paris v Stepney Borough Council [1951] AC 367, Lord Normand stated, at page 382:

"If there is no proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it."

Pill J also took into account the severity and incidence of the potential risk:

"Another factor is the seriousness of the injury which may occur, if one does occur. On that issue it can be said that there was a potential for a very serious injury in this case but as against that, the percentage of elastic recoils, even to the face, which will cause injury, I would expect, in the absence of evidence to the contrary, to be very small. The risk, while identifiable, was not in my judgment such that the manufacturer in 1990 can be held to have been negligent in supplying the product in the form it was".

Strict Liability: Defect

The judges agreed that the test in section 3 of the CPA is whether the product provides the level of safety which persons are generally entitled to expect in all the circumstances. Although they had accepted Dr Hayward's evidence in relation to negligence, they rejected his opinion that it was legally relevant that the potential risk had not been recognised in 1990, as evidenced by his own consultation with three other experts in 2000 and the fact that there were no records of comparable accidents on the database maintained by the Department of Trade & Industry. One would have expected the judgments to analyse evidence of what level of safety consumers would have expected, given the design of the product, whether in 2000 or 1990. But the judgments curiously omit such consideration, and merely note that "it is not suggested that public expectations have changed".

Pill L J stated:

"I have come to the conclusion that, though the case is close to the borderline, the product was defective within the meaning of the Act. The risk is in losing control of an elastic strap at a time when it is stretched and eyes are in the line of recoil. The product was defective because it was supplied with a design which permitted the risk to arise and without giving a warning that the user should not so position himself that the risk arose. Members of the public were entitled to expect better from the appellants. A factor in that expectation is the vulnerability of the eye and the serious consequences which may follow from a blunt injury to the eye. Expectations would be different if the worst which could occur was an impact of elastic on the hand. It is not necessary for the Court to determine precisely what more should have been done. It is clear that more could have been done, for example a non-elasticated method of attachment or instructions to fasten the straps from behind the seat unit, together with a warning".

Chadwick L J held that the question whether the safety of the product was, or was not, such as persons were generally entitled to expect is a question of fact, which the judge had answered in the negative, on the basis of Dr Hayward's evidence that there was in 2000 recognised to be a safety defect in the product. Accordingly, Chadwick L J reasoned:

"Unless there was evidence to support a conclusion that the degree of safety, in relation to a child care product, that persons generally were entitled to expect in 1990 was lower than the degree of safety which was to be expected, in relation to the same product, when Dr Hayward wrote his report earlier this year, that finding of fact by the judge appears to me unassailable. The product which Dr Hayward examined in 2000 was the same product as that supplied to the claimant's mother in 1990........ If, as Dr Hayward acknowledged, it would be necessary to advise anyone manufacturing that product in 2000 that the product would have a safety defect - that is to say, that the safety of the product is not, now, such as persons generally are entitled to expect - why would it not have been necessary to give the same advice in 1990? The safety, or lack of safety, of the product has not changed in the ten years since 1990. The only factor which could have changed, in relation to the test posed by section 3(1) of the Act, is the level of safety which persons generally are entitled to expect in relation to a product of this nature. There was no satisfactory evidence that that factor had changed; and, for my part, I would find it difficult to accept that it had. More pertinently, the judge did not accept that the expectation of persons generally in relation to the safety of child care products had changed in the last ten years; and it is impossible to hold that he was wrong to take that view."

Strict Liability: The Development Risk Defence

The defendant had argued, in accordance with s 4(1)(e) of the CPA, that the state of scientific and technical knowledge in 1990 was not such that a producer of a similar product might have been expected to have discovered the defect if it had existed in his products. It was submitted that in 1990 the state of technical knowledge was evidenced by the opinions of the experts and the absence of any record of a comparable accident in the DTI database. At first glance, one might have expected that argument to succeed, but it was rejected by the Court of Appeal.

The reasoning of Pill L J (under the heading "Section 4(1)(e)") was as follows:

"In my judgment that argument fails first on the ground that the defect, as defined, was present whether or not previous accidents had occurred. Dr Hayward has identified the risk which was present. The defect which gave rise to the risk was just as likely (or unlikely) to lead to an accident in 1990 as it was in 1999. Knowledge of previous accidents is not an ingredient necessary to a finding that a defect, within the meaning of the section, is present. Different considerations apply to negligence at common law where foreseeability of injury, as defined in the authorities, is a necessary ingredient. Secondly, I am very doubtful whether, in the present context, a record of accidents, comes within the category of "scientific and technical knowledge". The defence contemplates scientific and technical advances which thow additional light, for example, on the propensities of materials and allow defects to be discovered. There are no such advances here. In his view that the finding that there was a defect concluded the case against the appellants, I agree with the judge".

That reasoning is highly questionable. First, it refers to the test of defect in section 3 and hardly addresses the wording of the defence in section 4(1)(e). It seems to suggest that the defence could never succeed where a product is defective. That is clearly incorrect: the whole point of the defence is that it exonerates a manufacturer of a defective product where the defect was undiscoverable (as is made clear in recital 16 to Directive 85/374/EEC). The question of whether a defect exists is completely irrelevant to the questions of the state of scientific and technical knowledge and of discoverability. Secondly, Pill L J has not set out to answer the questions (a) what, as a matter of fact, was the state of scientific and technical knowledge when the product was placed on the market (presumably some time before 1990) and (b) given the state of that knowledge, whether the defect was discoverable by a notional other manufacturer of similar products. Instead, Pill L J has merely doubted that a DTI record of accidents constitutes scientific and technical knowledge. It is submitted that a conclusion that the DTI's national record of accidents could not constitute scientific and technical knowledge is clearly incorrect. The relevant question is whether such knowledge could have lead to the discoverability of the defect.

There is more substance on this issue in the reasoning of Chadwick L J who said:

"....... I agree with Lord Justice Pill that [the development risk defence] provides no assistance to the appellant. The reason, as it seems to me, is that the question whether the producer might have been expected to have discovered the defect in 1990 - before the accident to the claimant had occurred - has nothing to do with the state of scientific or technical knowledge at that time. There was no difficulty in discovering the defect by a simple practical test - as Dr Hayward's evidence makes clear. No advance in scientific or technical knowledge since 1990 was required to enable that test to be carried out. The only reason that it was not carried out before 1990 was that manufacturers (it seems) had not thought of doing so. The defence under section 4(1)(e) of the Act is simply not engaged in the present case."

It is submitted that the judge's statement that the expectation of discovery of the defect in 1990 has nothing to do with the state of scientific or technical knowledge at that time is incorrect as a general proposition. That statement flies in the face of the wording of the defence itself. The point that the judge is making is, however, that the state of scientific and technical knowledge both before 1990 and since has included the ability to carry out a simple test from which the defect could easily have been discovered. The judge is wrong to say that the defence is not engaged, but would have been correct if he had said that the defendant had not succeeded in establishing the defence, given the burden of proof was on him. It seems that the claimant did not call evidence that the state of scientific and technical knowledge in 1990 comprised an appropriate test (as Chadwick LJ found) or that the defect was discoverable given that knowledge/test. This case is therefore an example of a situation in which a defendant failed to establish the defence on a burden of proof point, being defeated by an application by the judges of their common knowledge of the state of scientific and technical knowledge.

In essence, the defendant could say that it was reasonable in 1990 not to be aware of the defect, but he could not say that it was undiscoverable.

For further information, please contact Chris Hodges by e-mail at christopher.hodges@cms-cmck.com or by telephone on +44 (0)20 7367 2738.