Country:

UK (England)

Case Name:

Iman Abouzaid (respondent) v Mothercare (UK) Ltd (applicant) [2000] WL 1918530 (CA)

Court:

Court of Appeal (Civil Division), 21 December 2000

Topics/Issues:

Defect

Technical Knowledge Defence

Basis/type of technical knowledge relied upon

Legislation referred:

Consumer Protection Act 1987 s. 3

Product Liability Directive 85/374/EEC Art. 6

Cases referred:

Commissioner v UK (Re: Product Liability Directive (1997 3 CMLR 923))

Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107

Paris v Stepney Borough Council [1951] AC 367

Roe v Minister of Health [1954] 2 QB 66

Facts:

This was an appeal by Mothercare (UK) Ltd (applicant) against a decision dated 23 May 2000 awarding £35,995.72 against the initial claimant (now respondent).

The respondent had sustained an injury to his left eye whilst helping his mother attach a product purchased from the applicants called 'Cosytoes' to a pushchair. Whilst attempting to attach the product to the pushchair with elastic straps, the buckle at the end of the strap slipped whilst under tension and hit him in the eye. As a result of this injury, the respondent suffered such serious damage to his eye that he has no useful central vision.

Legal Questions:

(1) Whether the product had a defect determined by the lack of safety which the public at large entitled to expect.

(2) Whether the product had a safety defect of which Mothercare (UK), the supplier, could reasonably have been expected to be aware of prior to notification the accident suffered by Mr Abouzaid.

(3) Whether the development risks defence in section 4(1)(e) CPA 1987 can be relied upon in circumstances where the manufacturer of the product did not recognise the product could pose a hazard, as the potential risk had not at the time been recognised by experts in the safety of such products.

Decisions:

(1) Whether the product had a defect determined by the lack of safety which the public at large entitled to expect.

The Court used both Article 6 of the Directive and section 3 CPA 1987 as a basis upon which to define whether a defect existed in the product, reaffirming that the defectiveness of the product should not be judged by its fitness for use but to the standard people are entitled to expect.

The jointly instructed expert witness found that although the defect was not recognised the time of the accident in 1990 by the manufacturers, by today's standards it would have a safety defect. He identified a potential hazard in that the elastic strap and buckle to posed a potential danger to the eyes of adults and children. The Court rejected this assertion, holding that the passage of time was an irrelevant consideration in whether there was in fact a defect. If there was a defect, the time factor would not make it less or more so, the Court finding that the public's expectations could not have changed in that time.

The time factor alluded to in section 3(2)(c) CPA 1987 provides that what persons are entitled to expect requires consideration of the time when the product was supplied. However, the Court found that in the present case such a consideration had no bearing. It held that the product was defective in that the risk of losing control of the elastic strap of the product at a time when it was stretched and the eyes being in the trajectory of the recoil made it dangerous. Thus, the product was defective in that it was supplied with a design which permitted the risk to arise (i.e. a design defect), and without giving a warning that the user should not so position himself that the risk arose (i.e. a marketing defect). In essence, the Court found that members of the public were entitled to expect better.

(2) Whether the product had a safety defect of which Mothercare (UK), the supplier, could reasonably have been expected to be aware of prior to notification the accident suffered by Mr Abouzaid.

The applicants relied on the expert witness testimony that no manufacturer of childcare products could reasonably have been expected to recognise the product could pose a hazard to the eyes, since the potential risk had not at that time been recognised by experts of safety in childcare products or through accident reports. The Court rejected this reasoning, holding that knowledge of previous accidents is not an ingredient necessary to a finding of a defect. As long as a risk was identified, the defect was present whether or not previous accidents had occurred.

(3) Whether the technical knowledge defence in section 4(1)(e) CPA 1987 can be relied upon in circumstances where the manufacturer of the product did not recognise that the product could pose a hazard, as the potential risk had not at the time been recognised by experts in the safety of such products.

Reliance on this defence assumes the presence of a defect in the product. The appellants based this lack of scientific and technical knowledge on the absence in the DTI database of any comparable accident at the time of supply of the product. They contended that such records constituted technical knowledge under section 4(1)(e) CPA 1987, and that it was only with knowledge of accidents might they have expected to discover the defect.

The Court rejected this line of argument. It was held that the defect which gave rise to the risk was just as likely in 1990 as in 1999. The Court also questioned whether in fact, a record of accidents falls within the scientific and technical knowledge category under section 4(1)(e) CPA 1987. This is essentially because such a defence contemplates scientific and technical advances which reveal information which may allow a defect to be discovered. In the present case no such knowledge came to light, rendering the basis for relying on the said section incorrect.

Comments:

Pill LJ's judgment notes that the lower court judge had not clearly distinguished between negligence and strict liability under the CPA. Although Pill LJ found that there was a defect, he did not consider that there was negligence at common law.

The development risks defence "contemplates scientific and technical advances which throw additional light, for example, on the propensities of materials and allow defects to be discovered". Defectiveness of a product should be determined not by reference to its fitness for use but to the lack of safety to which the public at large are entitled to expect.

The judgment refers to both defect in design and a failure to warn as types of defect.

Original Text:

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