Abouzaid v Mothercare (UK) Ltd

Under the Consumer Protection Act 1987, a product is defective where its safety falls below that which persons generally are entitled to expect, assessed in all the circumstances. The statutory test is objective and does not depend on whether the producer knew, or could reasonably have known, of the hazard.

The time of supply is a relevant circumstance, but a defect does not arise only when public expectations or technical knowledge later improve. The state-of-scientific-and-technical-knowledge defence is separate from the defect test and cannot be used to define defectiveness. A product may therefore be defective under the Act although its producer was not negligent at common law because the risk was not reasonably foreseeable at the time.

A child suffered serious eye injury when a metal buckle attached to an elastic strap on a child-care product recoiled while he was helping to fit it to a pushchair. He brought claims in statutory product liability under the Consumer Protection Act 1987 and in negligence.

The trial judge entered judgment for the claimant, awarding damages. The defendant appealed, contending that the product was not defective in 1990 because the risk had not been recognised, and that the evidence did not establish negligence. The central issues were whether the product failed the statutory public-expectation test, whether the scientific-and-technical-knowledge defence applied, and whether the common-law negligence claim succeeded.

1. Appeal dismissed unanimously. The claimant’s judgment under the Consumer Protection Act 1987 was upheld. The award for loss of earning capacity was not disturbed. Costs were ordered to be paid by the respondent, subject to legal aid assessment.
2. Under sections 2(1) and 3, the question is whether the product’s safety was such as persons generally were entitled to expect, taking all the circumstances into account. The statutory liability is not based on fault. The injury was caused by features inherent in the product, namely the tensioned elastic strap and attached metal buckle.
3. The relevant public expectation did not depend on the producer’s prior recognition of the particular hazard. The passage of time did not make the product defective in 1999 or 2000 but safe in 1990. The product was defective because its design permitted the buckle to recoil towards the user’s eyes and it was supplied without an appropriate warning. The vulnerability of the eye and the seriousness of possible injury were relevant circumstances.
4. The defence under section 4(1)(e) presupposes a defect and is distinct from the section 3 test. Its burden rests on the producer. The absence of previous accidents was not necessary to establish defectiveness and was not, in the circumstances, scientific or technical knowledge showing that the defect could not have been discovered. The defect could have been identified by a simple practical test, requiring no scientific or technical advance.
5. The common-law negligence claim failed. Foreseeability had to be assessed by reference to the manufacturer’s actual or constructive knowledge at the time of supply. The evidence showed that the accident mechanism was not reasonably foreseeable in 1990. The absence of comparable accidents was relevant to negligence, although it did not determine statutory defectiveness.

• Court of Appeal (Civil Division): Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ 348. Appeal from the judgment of His Honour Judge Simpson dismissed.
• Mayor's and City of London Court: Judgment for the claimant in the sum of £35,995.72 on claims under the Consumer Protection Act 1987 and in negligence.