In the case of Abouzaid v Mothercare UK Ltd [2000] All E.R. D 246, it was held that a product would be defective under the Consumer Protection Act 1987 whether or not the producer learnt of the relevant hazard before damage had been caused. When deciding whether a manufacturer was negligent, however, a lack of comparable accidents could be considered.

Facts of the Case

  • C tried to attach a product bought from D to a pushchair. One of the elastic straps slipped from his grasp and hit him in the eye.
  • C was taken to A&E. C was told his eye was not damaged and sent home with eye cream. Over the next 3 days, the eye became painful and C returned to hospital. He was referred to two eye specialist hospitals.
  • C was found to have lost useful vision in his injured eye. Medical evidence suggested that the delay in diagnosis did not influence the outcome.
  • C sued D as the producer of a defective product under the Consumer Protection Act 1987. C succeeded at first instance.
  • D appealed on the grounds that since scientific and technical knowledge (accident reports concerning the product) did not exist at the time of the accident.
  • As such, D claimed the defence that, as a manufacturer, it could not have been aware of the potential problems without notification from other accidents.

Issues

  • Could D be held liable as the manufacturer of a defective product if the risk of injury stemming from the product had not been brought to D’s attention previously?

Held by the Court of Appeal (Civil Division)

  • Finding for C, that an identifiable risk exists. Whether or not D was aware of a particular defect was irrelevant to establishing liability under the 1987 Act since liability hinged upon the public’s expectations of safety.
  • Furthermore, accident reports were not, in the instant case, ‘technical knowledge’ for the purposes of the 1987 Act. There had been no progress in such knowledge since C’s accident. D could have discovered the danger prior to C’s accident. The fact that D had not appreciated that the risk existed was irrelevant.

Pill L.J.

  • Although the case is close to the borderline, the product was defective as outlined by the 1987 Act. The risk is 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 its design allowed the risk to arise and without any warning to customers. The public were entitled to expect better from D.
  • A factor in that expectation is the eye’s particular vulnerability and the consequences which can follow from blunt injury. Expectations would be different if the worst which could occur was impact on the hand. It is not necessary for the Court to determine precisely what more should have been done.
  • The defence D claims presupposes a finding of any defect. D seeks to rely on the absence in the DTI database of any record of comparable accidents at the time. Such records rank as ‘technical knowledge’ under the section, it is submitted. Only with such knowledge, D argues, might they have been expected to discover the defect.
  • “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 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 1987 Act, is present. Different considerations apply to negligence in the 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” [29].