When A & others v The National Blood Authority & another1 (the Hepatitis C case), was decided last year, the judgment seemed both so comprehensive and so compelling that advising defendants in products cases seemed likely to become a matter of reaching for the cheque book. So thorough and convincing was the judgment of Mr Justice Burton, that a County Court judge before whom I had the misfortune to run a products case afterwards proceeded under the illusion that it was a decision of the House of Lords.
With a significance that may well go beyond products cases, the court took heed of European Commission v UK [1997]2, by effectively ignoring the Consumer Protection Act 1987 and applying instead, the source text of the European Product Liability Directive of 1985. His Lordship, putting himself in the position of "an informed representative of the public at large" set out to eradicate concepts of negligence from the definition of a defect for the purposes of the Directive.
It was with considerable interest, therefore, that products practitioners reached for the judgment of Mr Justice Field in Sam Bogle & others v McDonalds Restaurants Ltd (8 March 2002, not yet fully reported), where a claim based partly in negligence and partly on the Consumer Protection provisions of the 1987 Act and the Directive, with similar 'moral' merit, failed on seven preliminary issues. The last concerned whether the product was defective.
In the Hepatitis C case, the claimants had received transfusions of blood supplied by the defendants. The blood contained Hepatitis C virus and the claimants contracted the disease. The principal issue was whether the blood was defective and the test to be applied was as follows.
Article 6
1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:
(a) the presentation of the product;
(b) the use to which it could reasonably be expected that the product would be put;
(c) the time when the product went into circulation.
2. A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.
There was evidence that no test, which the defendants might reasonably have performed, could have detected the presence of Hepatitis C virus in the blood, but that was held to be irrelevant. It would have been material in an action in negligence, because the defendants might thus have shown that they had achieved an acceptable standard of care. To apply such a test, however, removed the focus from the expectations of the consumer to the conduct of the supplier, which undermined the purpose of the Directive.
The McDonalds case
In the McDonalds case the claimants were children. Each of them had visited a branch of McDonalds, the burger chain, with an adult. Each had been scalded by a spilt hot drink. The resulting burns were, in many cases, full thickness and the scarring and tenderness permanent, so one might have expected the sympathy of the court would have been with the claimants.
The cases proceeded on preliminary points. There is nothing especially interesting in the analysis of the position in negligence, but, since Mr Justice Field expressly adopted the reasoning of Mr Justice Burton in the Hepatitis C case, it is important to understand how he reached the opposite conclusion on the Consumer Protection Act issue, ie whether there was a defect.
Again placing himself in the position of the informed representative of the public at large, he found that the public expected to be able to buy hot drinks, that drinks cool enough to cause no injury would be too cool to meet that expectation, that hot drinks were usually bought by adults, and that the public at large knew that hot drinks at an appropriate temperature for consumption would cause injury if spilt on the skin.
There were other subsidiary findings about the security of the lid fastenings and so on. At the point where he found that most adults would prefer not to drink their coffee from a beaker with a spout, one felt the judicial tongue straying towards the cheek. However, it is on the principal point about the expectation as to heat that I wish to focus.
At first sight, the two cases can be very easily distinguished. In the Hepatitis C case, Mr Justice Burton introduced an analysis based on standard and non-standard products, similar but not identical, to the familiar concepts of design and manufacturing defects. On this analysis, the blood in the Hepatitis C case was a non-standard product, since the standard product would not have carried the virus. The coffee in the McDonalds case, however, was a standard product, since all coffee sold hot will be hot enough to scald. This alone, on the face of it, is sufficient to explain the different outcomes as to what consumers generally are entitled to expect.
Nevertheless, it is possible that in many cases the distinction will be less clear cut, for it appears that much depends on the information which is taken to be available to the informed member of the public.
On the evidence in the Hepatitis C case, there had been nothing the defendants could do about the presence of the virus. There are perfectly respectable arguments to the effect that at the time it was actually more dangerous to screen than not. An informed member of the public armed with that information might not necessarily have expected that the blood received would be free of all viruses.
If that is a little tenuous, consider a less technical product. In seeking an example, I was tempted by Mr Justice Field's image of McDonalds' customers sipping their coffee through a spouted beaker.
Suppose that an infant's plastic drinking cup contained a rubber flange valve to prevent spillage through the spout. If stale milk residues were to accumulate there and harbour bacteria which infected the child, would the product be defective? Parents generally expect that they will need to clean young children's food equipment thoroughly, but do they expect to lift and wash within a partially concealed part? Possibly they do, but one can readily see that the evidence either way would not be as clear as the Bogle case in one direction, nor the National Blood case in the other.
Informing the public
What this demonstrates, unfortunately, is that, while it is impossible to offer guarantees against liability, it must be the case that the more one can move public perception towards an understanding of the risk associated with your product, the greater your chances of proving that the product was safe.
Probably, no amount of warning in the context of blood transfusions could sensibly have altered the outcome of the Hepatitis C case. However, it may well be that in such cases, where there is an expert intermediary, the responsibility for the form of advice and warnings given will need review.
Where the sale is direct to the public, as in my hypothetical illustration, not only specific warnings on the product, but carefully planted articles in appropriate magazines might provide future evidence for informed public expectation.
This prospect is unfortunate, because we will probably now move in the American direction of extensive warnings, so detailed and complex that the greatest risks identified with a product are blurred by a background of numerous lesser risks.
In the two cases discussed in this article, we have circumstances close to each end of the range of public expectation as to safety. In the area in between, there is scope for a great deal of litigation.
Tony Cherry is a litigation partner with national law firm Beachcroft Wansbroughs, Tel: 0117 918 2181, E-mail: acherry@bwlaw.co.uk
1) All E R 2001. Vol 3 p289 2)AER (EC) p481
