Key points
- Under the Consumer Protection Act 1987, the defectiveness of a product is to be judged by the expectations of the public at large, as determined by the Court, the fact that the risks of the design were not known to manufacturer at the time the accident occurred is not relevant
Facts
- A 12-year-old boy (C) was injured when an elastic strap on a sleeping bag slipped from his hand and the metal buckle permanently injured his eye
- C sued the manufacturer (D) for negligence and under the Consumer Protection Act 1987 (CPA 1987) for the design of the sleeping bag
- D argued that it had a development risks defence under s4(1)(e) CPA 1987 as there were no reports of similar accidents at the time of the accident
Held (Court of Appeal)
- The court dismissed the claim in negligence but held that Ds were liable under CPA 1987
Pill LJ
Negligence
Ds were not negligent as it was not foreseeable that someone would be injured using the sleeping bag.
CPA 1987
Defectiveness
- The sleeping bag was “defective” under CPA 1987 had a design the permitted a risk for which there was no warning and the public expected better than that: [27]
- *The defectiveness of a product is to be judged by the expectations of the public at large, as determined by the Court, the fact that the risks of the design were not known to D at the time the accident occurred is not relevant, the time factor under s3(2)(c) has no bearing here: [23] – [26]
- The risks could have been mitigated
- “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.”: at [27]
Development risks defence
- Development risks defence under s4(1)(e) CPA 1987 did not apply as the accident reports cannot be regarded as “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.”: [28]
Commentary
- The avoidability of risk was a circumstance that was considered, contrary to A v National Blood Authority