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Commercial Angles' Newsletter - July 2001

Strict Product Liability under the Consumer Protection Act

The Court of Appeal, in Abouzaid v. Mothercare (UK) Ltd, has ruled for the first time on the terms of the Consumer Protection Act, Part I, which introduced strict product liability into UK law in 1987. Going against the trend of judgements in lower courts, the Court of Appeal found that although the product supplier was not negligent, the claimant was entitled to damages under the act.

Abouzaid v. Mothercare (UK) Ltd.

The claimant's mother purchased in 1990 a Cosytoes sleeping bag, designed to be attached to a child's pushchair with elastic straps. Shortly after the purchase the claimant, who was aged 12 at the time, helped his mother attach the product to his younger brother's pushchair. One of the elastic straps slipped and lashed back. The buckle attached to the elastic strap hit him in the eye causing serious, permanent damage. The claimant sued Mothercare, the supplier of the product, claiming damages in negligence and also under the Consumer Protection Act. Mothercare conceded that it was the producer of the product within the meaning of Part 1 of the act.

As part of its defence, Mothercare argued that:

the product was not defective when the product was supplied because there had been no previous instances of this type of injury and, in 1990, consumers could not reasonably have expected the product to be designed differently so as to avoid the risk of this type of injury.
even if the product were defective, the respondent was entitled to use the "development risks" defence in Section 4 (1) (e) of the act. This section provides that a producer will not be responsible for a defect in a product if the state of scientific and technical knowledge at the relevant time was not such that a producer might be expected to have discovered the defect.
for the same reasons it did not act negligently in 1990 by supplying the product in that form, and
the claimant acted carelessly in trying to attach the product and was therefore partly responsible for his own injury.

A consulting engineer, retained as an expert witness by the parties, concluded that in 1990 no manufacturer of childcare products could reasonably have recognised the potential risk of this type of accident because at that time even experts in the safety of childcare products had not recognised the problem. He further concluded that he would advise a manufacturer today that such a product would have a safety defect unless the potential risk of injuries was eliminated by design or consumers were warned of the possible risks and how to avoid them. Such warnings would need to be included in instructions for fitting the Cosytoes that avoided the difficulties experienced by the claimant and his mother.

The trial judge found that Mothercare was liable for the claimant's injuries and rejected the claim of contributory negligence on the part of the claimant. However the trial judge did not make clear whether his ruling was based on common law negligence or on strict liability under the Consumer Protection Act or both. Mothercare appealed.

The Court of Appeal rejected Mothercare's appeal finding that, whilst Mothercare had not been negligent, the product was defective for the purposes of Part 1 of the Consumer Protection Act. The Court of Appeal also ruled that the respondent was not entitled to the benefit of the development risks defence. The reasoning behind this finding is important.

The Court of Appeal accepted the expert's evidence that no prudent manufacturer would have anticipated the risk at the time. Therefore there had been no breach by Mothercare of any common law duty of care.

The case depended on whether the product had a defect as defined in Section 3 of the act. Section 3 provides that a product has a defect if the safety of the product is not such as persons generally are entitled to expect at the time the product was purchased. The claimant argued that the risk arose because of the tendency of elastic to whip back. This risk was the same in 1990 as it was in 1999 and therefore, if it constituted a defect in 1999, it constituted a defect in 1990.

The Court of Appeal considered that a defect, within the Consumer Protection Act, depended on a consumer's "expectations" of safety. The court considered whether public expectations had changed between 1990 and 1999. It concluded that there had been no change. Therefore the product was defective in 1990. The court accepted that the public was entitled to expect a certain level of safety in a product even where a producer could not reasonably have anticipated a particular risk and guarded against it. This was the purpose behind the strict liability provisions in the Consumer Protection Act.

The Court of Appeal examined the development risks defence. A defence that the risk was undiscoverable at the time the product was in circulation would undermine the effect of the strict liability provisions in the act. The expert's evidence was used by Mothercare to support its defence - if there had been no reportable incidents of this kind of accident then the state of scientific and technical knowledge at the time was such that the risk could not have been discovered.

In rejecting this argument, the Court of Appeal considered that whether a producer might be expected to have discovered the defect had nothing to do with the state of scientific or technical knowledge at the time. It would have been a simple matter to discover the defect by performing a practical test. No advance in scientific or technical knowledge between 1990 and 1999 would have been required to perform such a test. The only reason that such a test had not been carried out was that the manufacturers had presumably not thought of doing one. The court also expressed doubts as to whether a record of accidents could fall within the definition of scientific or technical knowledge.

Conclusions

The producer was found liable under the Consumer Protection Act's strict liability provisions even though it was not negligent - the exercise of all proper care will not necessarily protect the producer from strict liability if a consumer is injured by a defect in the product.
A manufacturer or supplier may be liable under strict liability even if the risk could not have been recognised at the time of supply.
The development risks defence will be available only where there has been some scientific or technical advance since the time of supply, which enabled the defect to be identified.
Consumer expectations of safety are the key to defining a defect under the Consumer Protection Act. How these expectations may change over time is an unresolved problem under the act. Also, it is not the consumers' actual expectations of safety that is important under the act but what consumers are entitled to expect. Grey areas will still cause problems until more cases have been through the courts. For example, in Richardson v. LRC Products it was held by the High Court last year that, in the case of a condom which ruptured in use, the product was not defective because the public was not entitled to expect that any method of contraception intended to defeat nature will be 100% effective.

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