Sam B and Others v McDonald's Restaurants Limited 2002 WL 347059 (QBD),  EWHC 490
Queens Bench Division, Monday 25th March 2002
Defect under Consumer Protection Act 1987
Consumer Protection Act 1987 s (2) and (3)
Occupiers Liability Act
Council Directive 85/374 of July 25, 1985, Article (4) and (6)
A and others v National Blood Authority and another  3 All ER 289
A group litigation order (GLO) was made in respect of personal injuries claims suffered by Claimants (the majority of whom were children) when hot drinks (tea and coffee) served by the Defendant (McDonald's) were spilled. In all cases except one, hot drinks had been purchased in lidded cups which fell over, the lids coming off and part of its contents pouring over the claimants. In the exceptional case of Sam B, the cup was unlidded.
The generic issues of the joined claims were dealt with as preliminary issues:
(1) Whether the Defendant was negligent in serving hot drinks at the temperature it did.
(2) Whether it was necessary in order for the Defendant to discharge any duty of care owed to the Claimants, to dispense and serve hot drinks at some lower temperature, and if so, at what temperature.
(3) Whether the cups used by the Defendant to dispense the hot drinks were unsound and/or inadequate construction as to sender the defendant's use of them negligent.
(4) Whether the lids used by the Defendant for the dispensing of the hot drinks were of such poor fit or so inappropriate as to render use of them for its customers negligent.
(5) Whether a duty existed upon the Defendant to warn its customers as to the risk of scalding from hot drinks.
(6) Whether the Defendant was in breach of the Consumer Protection Act 1987 (CPA) because these hot drinks were "defective".
(1) and (2): the Defendant was not negligent in serving hot drink at the temperature that it did.
The Court accepted that the Defendant's serving temperatures were aligned with catering industry practice, which was by implication what customers wanted. The Court found no evidence that the Defendant's serving temperature was unusually hot compared with other similar restaurants and outlets and did not accept that, had the drinks been served at a lower temperature of 70 C (as argued by the Claimants), the risk of injury would have been avoided or reduced.
(3) and (4): the Defendant was not negligent in the use of the cups and lids in the service of hot drinks to customers.
The Court held that the Defendant was under no duty to ensure that there were no accidents involving hot drinks: the duty was to take such steps as were reasonable in the circumstances to avoid or reduce the risk of injury. Since the cups and lids (closed, not drink-through) were designed to retain the drink if tipped over, the Court found no evidence that it was reasonably feasible for another type of cup or lid to have been designed and manufactured which would have allowed the lid to be easily removed by the customer and at the same time retained hot drink if it was dropped or knocked over. The Court thus found that the steps the defendants took in respect of the cups and lids to avoid injury were reasonably adequate in the circumstances.
(5) and (6): the Defendant did not owe a duty to warn customers about the risk posed by temperatures at which the hot drinks were served, notwithstanding warnings had been printed on the cups.
Warnings of "Caution: Contents Hot!" and "Caution: Hot!" had been printed on cups since 1995. The Court held that McDonald's could expect that the great majority of those who bought hot drinks would be teenagers and older (not infants), who could be taken to know that hot drinks could scald if spilled.
The Court further found that, if the Defendant was under a duty to warn, the warning signs were adequate to discharge this duty.
(7): hot drinks were not defective under CPA.
The Court construed the CPA in the light of Directive 85/374/EC and "gratefully adopted" the analysis of Burton J. of sections 3 and 4 CPA and Articles 6 and 7 of the Directive in A and others v National Blood Authority and another  3 All ER 289.
In light of the fact that Macdonald's staff were trained to cap the drinks securely and in light of the capabilities of the cup if tipped (but not dropped), the Court accepted that the safety of the hot drinks served by the defendants was such as persons are generally entitled to expect and held that the Defendant was not in breach of the CPA.
The issue with which the Court was concerned was the ultimate safety of the product and not the consideration that the producer gave to its safety. A consideration of what the consumer expected, or was likely to expect in restaurants or other outlets also carried significant weight in this judgment. Indeed, the judge appears to have inferred defect from the satisfaction of the consumer expectations test alone.
The Court also held that it was not right for the law of negligence and occupier's liability to be responsible for denying to the public a facility they want notwithstanding the known risk.