Consumer Law - Abouzaid v Mothercare Ltd - Essay Example

What has the case of ABOUZAID V MOTHERCARE (UK) LTD added to the area of the development of negligence since Donoghue V Stevenson and the Consumer protection act. Points to use for a presentation 1. Briefly outline the facts of the case, which are as follows Abouzaid v Mothercare (UK) Ltd – the mother of the claimant had purchased a Cosytoes sleeping bag in 1990 which was attached to the pushchair by elastic straps. The claimant, aged 12, was helping his mother attach the product to his younger brother’s pushchair when one of the straps slipped and lashed back. The buckle attached to the strap hit the claimant in the eye and caused permanent serious damage to the boy. The claim against the respondent was brought in negligence as well as invoking the requirement of strict liability for the safety of the product under s1 of the Consumer Protection Act 1987. Despite the defence offered by the respondent the court of appeal found in favour of the claimant on the basis of strict liability, even though the court accepted that the respondent had not been negligent. 2. Discuss the defences offered by Mothercare Mothercare asserted they were not liable because (a) the product could not be regarded as defective as there had been no previous instances of this type and therefore they had no reason to believe that there was any need to change the design to prevent such a thing from happening (b) if the product was to be regarded as defective, Mothercare argued that they were entitled to use s4(1) (e) of the Consumer Protection Act which states that a producer could avoid liability if 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 (c) they had not acted negligently as it was not reasonably foreseeable that such an accident might occur (d) the claimant had been careless in attempting to attach the product and so was partly responsible for his own injury. 3. Discuss the reasons why the above defences were rejected by the court of appeal In the first hearing the court held Mothercare liable for the injuries and also rejected any claim for contributory negligence on the part of the claimant. It was not made clear at the first hearing whether the ruling had been based on negligence or strict liability or both which led to Mothercare lodging an appeal. At the appeal hearing the court clarified the position, stating that the ruling was based on the defectiveness of the product and not the negligence of the producer. The appeal court rejected the defence offered under s4(1)(e) of the CPA 1987 in relation to the development risk defence. 4. Key issues considered by the court of appeal (a) Had there been a breach of the duty of care by Mothercare? (b) Could the product be regarded as defective as described by s3 CPA 1987 (c) Could Mothercare rely on the development defence under s4(1)(e) CPA 1987 Breach of duty of care In reaching their decision the court found that Mothercare had not breached their duty of care to the claimant and that no prudent producer could have anticipated the risk. Liability therefore hinged on determining whether the product could be deemed to be defective. Defective product as described by s3 CPA 1987 S3 CPA 1987 states that (1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes "safety", in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury. (2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including— (a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product; (b) what might reasonably be expected to be done with or in relation to the product; and (c) the time when the product was supplied by its producer to another; and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question. In determining whether the product was defective the court looked at whether the design of the product allowed the risk of injury to arise. In summing up Pill LJ 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. The court determined that if the product could be regarded as being defective in 1999 when the case was being heard that the product would also have been defective in 1990 as this was the first occasion in which such an injury had occurred. Possible defence under Section 4(1)(e) CPA 1987 The respondents in this case were attempting to rely on lack of ‘scientific and technical knowledge’ based on the absence of a comparable accident at the time the product had been supplied. They claimed that a producer could only be expected to discover the defect if similar accidents had been reported. Pill LJ rejected this argument stating In my judgment that argument fails first on the ground that the defect, as defined, was present whether or not previous accidents had occurred … 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 throw 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 … I would dismiss this appeal. The court was of the opinion that the defect could have been discovered by performing a practical test and that there was no need for any advances in scientific or technical knowledge in order that the respondent should consider conducting such a test. The court believed that the only reason such a test had not been carried out was because the manufacturers had not thought about doing one. 5. Summarise what the case has added to the development of negligence (a) this case demonstrates that there it is not essential to prove that the respondent has breached a duty of care in order to establish a claim for personal injury (b) under the strict liability criteria of the CPA 1987 a respondent can be held liable for personal injury if the product can be deemed to be defective, regardless of whether the manufacturer possessed the knowledge of the potential danger or not. (c) A producer will only be able to rely on the development of risks defence if there has been an advance is scientific or technical knowledge since the product was first supplied. (d) In determining whether the product can be regarded as defective the key element to be considered by the court id the consumers expectations of safety of that product. In this particular case the product was deemed to be defective. This can be contrasted with the case of Richardson v LRC Products [2000] Lloyds Report Med 280, in which the court held that the producer could not be held liable for a condom that ruptured whilst the claimant was using it. This was based on the fact that a consumer was not entitled to expect any method of contraception to be 100% effective. Read More