England and Wales Court of Appeal (Civil Division) Decisions

PILL LJ:

1. This is an appeal by Mothercare (UK) Ltd ("the appellants") against a decision of His Honour Judge Simpson sitting at the Mayor's and City of London Court on 23 May 2000. Judgment was given against the appellants in the sum of £35,995.72 in favour of Mr Iman Abouzaid ("the respondent") who had claimed damages against the appellants under the Consumer Protection Act 1987 and in negligence.

The facts

2. The respondent sustained an accident on 16 November 1990 when he was 12 years old. He was helping his mother to attach a product known as a "Cosytoes" to a pushchair. The product had been purchased from one of the appellants' stores. It is a fleece-lined sleeping bag for use by a young child and had been purchased for use by the respondent's younger brother.

3. The product was intended to be attached to the pushchair by elasticated straps passed around the back of the pushchair from each side of it and joined by a metal buckle attached to one of the straps. The buckle was intended to pass through a loop on the other strap. The straps are respectively 7 and 8 inches long and just under an inch wide. The buckle is of light construction.

4. The respondent was attempting to join the straps by attaching the buckle when one of the elastic straps slipped from his grasp and the buckle hit him in the left eye.

5. The claimant felt immediate pain. He was taken to the accident and emergency department of a general hospital by ambulance. He was told that his eye was not damaged and sent home with eye cream. Over the next three days, the eye became more painful and the claimant again went to hospital. He was immediately referred first to Western Ophthalmic Hospital and then to Moorfields Eye Hospital. The claimant was found to have hand movements vision in the left eye with evidence of a severe non-blunt penetrating injury giving rise to a shallow temporal half-detachment of the retina.

6. The subsequent medical history need not be set out because it is accepted by the appellants that the current condition of the left eye is the result of the accident. The claimant has no useful central vision. The medical evidence is that the delay in diagnosis did not influence the outcome. What can be said however is that the mechanism by which the injury occurred was predictable but very unlikely. It was possible for a serious injury to the eye to result from the recoil of even this comparatively light elasticated strap on the end of which was a light metal buckle. Very unfortunately, the injury did occur in that way. A recoil would not normally be expected to have these very serious consequences, however.

7. The parties jointly instructed Dr Gordon Hayward, a highly qualified and experienced consulting engineer, to produce a report. His report is dated 29 February 2000 and is supplemented by a letter dated 4 April 2000 in which he answered questions addressed to him by the parties' lawyers.

The statute

8. The Consumer Protection Act 1987 is "An Act to make provision with respect to the liability of persons for damage caused by defective products". Section 2(1) provides that "subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom section 2(2) below applies shall be liable for the damage." It is conceded that the appellants come within section 2(2) as producers of the product.

9. The meaning given to the word "defect" in section 2 is stated in section 3 of the Act:

"(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".

Section 4(1) of the Act provides inter alia that "in any civil proceedings by virtue of this Part against any person in respect of a defect in a product it shall be a defence for him to show:

"(e) that 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 there were under his control; ...".

10. Permission was given to pursue this defence, which had been raised both in the engineer's report and at the trial. Counsel accepted that the defence should be pleaded and I agree. (Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107). The burden of proof is on the producer.

11. The Act was passed to give effect to Directive 85/374/EEC of the Council of the European Communities dated 25 July 1985. Section 1(1) provides that Part I of the Act "shall have effect for the purpose of making such provision as is necessary in order to comply with the product liability directive and shall be construed accordingly".

12. The wording of section 4(1)(e) was unsuccessfully challenged by the Commission (EC Commissioner v UK (re the Product Liability Directive (1997 3 CMLR 923) on the ground that it did not properly transpose the Directive since it was broader than the defence under Article 7(e) of the Directive. The decision does not bear directly upon the present case. It has not been suggested that the definition of "defect" in section 3 of the Act fails properly to transpose Article 6 which provides:

"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 was put into circulation.

2. A product shall not be considered defective for the role reason that a better product is subsequently put into circulation."

13. It is pertinent to note two of the preambular paragraphs in the Directive:

"Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances;

Whereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances;".

14. The appellants also draw attention to the expression in another preambular paragraph that in the course of time "higher safety standards are developed".

The judgment below and the expert evidence

15. It is, with respect, not clear whether the judge based his finding in the respondent's favour on his view of the Act or on negligence at common law. He stated that the test he had to adopt was "whether what the manufacturer did at that time in 1990 was negligent". However, he commenced the concluding section of his judgment by stating that in his judgment "there is a defect in this product". His findings were:

"In my judgment, there is a defect in this product. There was a failure to provide instructions, and there was an unsafe design because it could not be secured in safety. There was a risk that a person using this item quite properly could suffer serious injury, as in fact has happened. A piece of metal was on the end of the elastic where the elastic has to be pulled. If it jerks out of one's hand then the metal will be a source of danger, and I think that this is simply an application of common sense. It was an obvious danger. It did not have to be manufactured like that. In the result, a lot of energy is involved in the snapping back of the elastic which is likely to cause damage. The matter could easily have been put right with little effort. It has been pointed out that one might have one strap instead of two, which one could pull in safety, so very little adjustment was required to make this item safe.

Also the manufacturer ought to have had in mind that older children, such as this claimant, or teenagers, would be using it. They would probably be bending down into the line of the elastic with the risk of this piece of metal coming into contact with an eye. There was therefore a reasonable chance that older children or teenagers would use it at eye height or level. In my judgment, this was an obvious risk or danger, and the manufacturers should have appreciated it. As I have indicated, the defendants have held themselves out as being the manufacturer."

16. Some of the reasoning in those paragraphs has a flavour of common law negligence rather than liability under the statute.

17. Dr Hayward has attempted to link his reasoning with the statutory duty in the 1987 Act. He states that "the buckle on the elastic strap of the Cosytoes could cause serious injury if it was accidentally released and came in contact with an eye during its short flight path". The kinetic energy was capable of causing injury to the eye. He referred to his consultations with other experts in the same field. The result was that he was convinced that there had been no discussion in standards committees of a potential hazard to eyes from elastic straps on any childcare products. The experts he consulted had not heard of or envisaged any injury such as that suffered by the respondent. No such accidents were recorded on the DTI database. Dr Hayward's conclusion was that:

"5.3.1 ... I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for a cosytoes could pose a hazard to the eyes of children or adults, since the potential risk had not at that time been recognised even by experts in the safety of such childcare products."

Dr Hayward also stated that:

"5.2.3 I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident."

18. However, the overall conclusion was that "the product did not have a safety defect of which a supplier could reasonably have been expected to be aware prior to notification of this particular accident suffered by Mr Abouzaid." That conclusion does not follow the wording of the statute but it appears to be an opinion that in present circumstances there was no breach of statutory duty.

19. The judge expressed his view as to the logic of Dr Hayward's conclusion in these terms. Dr Hayward "says there is a safety defect today and my judgment is that there must have been a safety defect at the time [1990]."

20. The judge also held that "there was a failure to provide instructions." Section 3(2) provides that "what persons generally are entitled to expect" requires consideration of "any instruction for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product". Dr Hayward does not expressly consider this question but I take his conclusion to be that, whereas instructions should be given or other precautions taken today, the state of knowledge in 1990 was not such that instruction or warning could reasonably be expected.

21. An allegation of contributory negligence was rejected by the judge. That is not surprising. Dr Hayward had expressed the view that the claimant and his mother were acting reasonably and sensibly. The appellant does not have permission to appeal against that finding of the judge.

Was there a defect?

22. In my judgment the case turns on whether there was in the product a defect as defined in section 3 of the Act and Article 6 of the Directive. As the ECJ confirmed in Commission v United Kingdom, the statute must be interpreted "in the light of the wording and the purpose of the Directive so as to achieve the result which it has in view" (paragraph 38 of judgment). The product is to be judged by the standard persons generally are entitled to expect in all the circumstances. In the words of the preamble to the Directive, the defectiveness of the product should be determined "by reference not to its fitness for use but to the lack of the safety to which the public at large are entitled to expect".

23. Fundamental to Dr Hayward's opinion is that the potential risk had not been recognised in 1990. There were no records of comparable accidents on the DTI database. Aware as he now is of the claimant's accident, Dr Hayward concludes that the same product manufactured today would have a safety defect. Dr Hayward's own experiments demonstrate what he describes as the potential hazard:

"I was able to observe on several occasions that the buckle flew right round to a point about 50 mm in front of the cosytoes, and roughly on the centreline of the seat. I also discovered that it was possible to fasten the straps together by just the nose of the hook, and that from this position the hook could easily slip off and fly round as described.

I found that for me it was quite easy to fasten the straps correctly from behind the seat unit. Attempting this from the front of the seat was more difficult, because it was not possible to see the fastening. It also required putting my head close to the seat in order for my arms to reach round behind it. I noticed that the elastic did have a tendency to pull the fastener through my fingers, and it could easily have slipped.

These experiments led to the conclusion in paragraph 5.2.3 already cited.

24. The respondent's case, as accepted by the judge, can be put very simply. The risk arises from the propensity of elastic to spring back. If in the circumstances that constituted a defect in 1999, it was equally a defect in 1990.

25 Subject to their point under section 4(1)(e), the appellants' reliance upon the passage of time is in my judgment misplaced. The product is to be judged by the expectations of the public at large, as determined by the Court. It is rightly not suggested that public expectations have changed between 1990 and 1999. Elasticated products have been in use for many years and there is no suggestion of any relevant technical advances which might reasonably affect the expectations of members of the public. The court is required to set the standard on the basis of the evidence and all the circumstances.

26. In my view, the judge's comment upon the reasoning of Dr Hayward was justified. I should add that, when preparing his report, Dr Hayward did not have guidance, by way of decided cases, upon the relevance of time in the statutory context. The nature of the defect, if there was a defect, is not such that its existence can depend on the passage of time between 1990 and 1999. The time factor spelt out in section 3(2)(c) as a circumstance to be taken into account has no bearing upon the decision on the present facts.

27. 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.

Section 4(1)(e)

28. The defence under section 4(1)(e) presupposes a finding that a defect is present. The appellants seek to rely, as "scientific and technical knowledge", not available in 1990, on the absence in the DTI database of any record of a comparable accident at the time of supply. Such records rank as "technical knowledge" under the section, it is submitted. Only with knowledge of accidents might the producer have been expected to discover the defect.

29. In my judgment that argument fails first on the ground that the defect, as defined, was present whether or not previous accidents had occurred. Dr Hayward has identified the risk which was present. 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.

30. I do not see advantage in further analysis of the decision in the ECJ already mentioned or of possible differences between section 4(1)(e) and Article 7 of the Directive. I agree with counsel that to do so would not help to resolve the present case. Nor it is appropriate to consider the possible application of the section in other cases.

Common law negligence

31. A decision whether there is a breach of duty in negligence in manufacturing a product which causes injury involves an assessment of the extent of the risk of injury it presents, along with other factors. In this context, the absence of previous comparable accidents, relied on by Dr Hayward, is a relevant factor. Elastic tape is a commonly used fabric and experience had not shown that its use in children's products such as this one was likely to cause injury. In Paris v Stepney Borough Council [1951] AC 367, Lord Normand stated, at page 382:

"If there is no proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think to obvious that it was folly to omit it."

32. The issue was put plainly to Dr Hayward by the respondent's counsel, following the initial report. He replied:

"I believe that if I (or any other expert on the standards committee) had been presented with this product in 1990 we would not have anticipated this accident mechanism. Only with the hindsight provided by accident reports would it have occurred to any of us. I would not therefore have expected any greater foresight by a supplier (unless they had additional knowledge from previous customer complaints). The first case on a public database was not recorded until 1992 ... and this was neither identical nor as serious an injury."

33. Another factor is the seriousness of the injury which may occur, if one does occur. On that issue it can be said that there was a potential for a very serious injury in this case but as against that, the percentage of elastic recoils, even to the face, which will cause injury, I would expect, in the absence of evidence to the contrary, to be very small. The risk, while identifiable, was not in my judgment such that the manufacturer in 1990 can be held to have been negligent in supplying the product in the form it was. On the present facts, a defect, as defined by section 3 of the Act, was present upon the public expectation test but there was no negligence at common law.

Damages

34. The appellants challenge the sum of £15,000 awarded for loss of earning capacity, described by the judge as handicap in the labour market. The respondent is now 22 years old and employed in the hotel trade at a salary of £10,000 a year gross. He has almost the whole of his career ahead of him. Not only is the range of employment open to him limited by what effectively is the loss of sight in one eye but if he were to have problems with the sight in his other eye, as a result of either illness or trauma, the effect on his earning capacity would be very severe. That risk is a factor taken into account in awards for pain, suffering and loss of amenity and it should in my view also be taken into account when assessing a sum under this head. In the circumstances, I do not consider the sum of £15,000 to be one with which this Count should interfere.

35. I would dismiss this appeal.

CHADWICK LJ:

36. Section 2(1) of the Consumer Credit Act 1987 imposes a statutory liability for damage caused wholly or partly by a defect in a product. The liability is imposed on, amongst others, the producer of the product - see section 2(2)(a). Section 3 of the Act gives a statutory meaning to the phrase `a defect in a product'. There is a defect in a product for the purposes of section 2(1) of the Act `if the safety of the product is not such as persons generally are entitled to expect' - see section 3(1). Section 3(2) requires that, in determining for the purposes of subsection (1) what persons generally are entitled to expect in relation to product, all the circumstances are to be taken into account, including, in particular:

"(a) the manner in which, and purposes for which, the product has been marketed . . . 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, ... .

37. In the present case it is common ground that the claimant was injured by a light metal clip attached to an elastic strap which was itself attached to the fleece-lined bag which gives its name to the Coseytoes product. It is common ground, also, that the defendant is to be taken to be the producer of the Coseytoes product.

38. The injury occurred as the result of a combination of three factors: (i) the metal hook slipped from the claimant's grasp at a time when the elastic strap was under tension; (ii) the tension in the elastic caused the metal hook to describe a trajectory from the rear of the push-chair or buggy to a point in front of the fleece-lined bag; and (iii) the claimant's face - in particular, his eye - was in the path of that trajectory. In those circumstances it seems to me beyond argument that the damage to the claimant's eye was caused by features inherent in the Coseytoes product - taking that product to include the metal hook and the elastic strap as well as the fleece-lined bag and having regard to the fact that the metal hook was joined to the fleece-lined bag by the elastic strap. Put simply, the damage was caused because the metal hook struck the claimant's eye; and the hook struck the claimant's eye (a) because an elastic strap under tension will seek to regain its untensioned length, (b) if one end of the elastic strap is fixed, the other end (to which, in the present case, the hook was attached) will move under tension in the direction of the fixed end, (c) once the elastic strap has regained its untensioned length, the momentum of the hook will tend to carry that movement on in a more or less random direction within the radius of the untensioned length, and (iv) the momentum of the hook will not fully be spent until the elastic is, once again, at its untensioned length. It is important to keep in mind, as it seems to me, that the question under section 2(1) of the Act is "how was the damage caused"; the question is not "was the cause of the damage foreseeable".

39. On the basis that (as I would hold) the damage to the claimant's eye was caused by features inherent in the Coseytoes product, the question for the judge (in relation to liability under the Act) was this: was the safety of the product (having those features) such as persons generally were entitled to expect? If not, then there was a defect in the product for the purposes of the Act.

40. The question whether the safety of the product (having those features) was, or was not, such as persons generally were entitled to expect is, to my mind, a question of fact. The judge answered that question in the negative. After referring to paragraph 5.2.3. in the report of Dr Hayward, an expert instructed jointly by the parties, the judge said this (from page 6 line 27 to page 7 line 6 in the transcript of his judgment):

"What the expert is there saying is that today he would advise that there is a safety defect in this item, presumably on the basis that the safety is not such as persons generally are entitled to expect; but the logic of this conclusion is that if there is a safety defect in this item today there must have been a safety defect in the item in 1990 [when the accident occurred]. It has not suddenly found a safety defect; it is in the same condition today as it was then, and this is the logic, in my judgment, of this conclusion. He says there is a safety defect today, and my judgment is there must have been a safety defect at the time."

41. Unless there was evidence to support a conclusion that the degree of safety, in relation to a child care product, that persons generally were entitled to expect in 1990 was lower than the degree of safety which was to be expected, in relation to the same product, when Dr Hayward wrote his report earlier this year, that finding of fact by the judge appears to me unassailable. The product which Dr Hayward examined in 2000 was the same product as that supplied to the claimant's mother in 1990. If, as Dr Hayward acknowledged, it would be necessary to advise anyone manufacturing that product in 2000 that the product would have a safety defect - that is to say, that the safety of the product is not, now, such as persons generally are entitled to expect - why would it not have been necessary to give the same advice in 1990? The safety, or lack of safety, of the product has not changed in the ten years since 1990. The only factor which could have changed, in relation to the test posed by section 3(1) of the Act, is the level of safety which persons generally are entitled to expect in relation to a product of this nature. There was no satisfactory evidence that that factor had changed; and, for my part, I would find it difficult to accept that it had. More pertinently, the judge did not accept that the expectation of persons generally in relation to the safety of child care products had changed in the last ten years; and it is impossible to hold that he was wrong to take that view.

42. Dr Hayward sought to justify his view that the Coseytoes product did not have a safety defect in 1990 by reference to what he described as the state of scientific and technical knowledge in 1990. The relevant paragraphs of his report are these:

"4.5 Knowledge of the potential hazard

4.5.1 Despite representing different interest groups, all three experts I consulted were convinced that there had been no discussion (in any standards committee they served on) of a potential hazard to eyes from elastic straps on any child care products at any time during their involvement. Nor did any of them recall having heard of or envisaged such an injury until I described this one to them. Nor were any of them aware of any mechanical safety problem with cosytoes as a generic class of products ... .

5.1 The level of safety that consumers can reasonably expect

5.1.1 ...

5.1.2 ... However, the act makes clear that consumers cannot expect to be warned by manufacturers of hazards that the manufacturers themselves could not have been expected to be aware of. (See 4.1.2.) [ which sets out the provisions of section 4(1)(e) of the Act]

5.1.2 I conclude therefore that (particularly in the absence of any specific requirements for a particular product in standards or regulations) the level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.

...

5.3 The state of scientific and technical knowledge in 1990

5.3.1 From 4.5 I conclude that in 1990 that no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for cosytoes could pose a hazard to the eyes of children or adults, since the potential risk at that time had not been recognised even by experts in the safety of such childcare products.

5.4 Whether the cosytoes had a safety defect

5.4.1 I therefore conclude that the product did not have a safety defect of which a supplier could reasonably have been expected to be aware of prior to notification of this particular accident suffered by Mr Abouzaid."

43. That reasoning, as it seems to me, elides two questions which the Act requires to be considered separately. The first is "what degree of safety are persons generally entitled to expect" The second is "was the state of scientific and technical knowledge in 1990 such that a producer of products of this nature might have been expected to discover the defect". The second question is relevant to the statutory defence under section 4(1)(e) of the Act. But, to my mind, it has nothing to do with the first question. The statutory defence, in relation to which the burden is plainly on the producer, as defendant, does not become relevant unless and until the claimant has satisfied the court, under section 3(1) of the Act, that the safety of the product falls below that which persons generally are entitled to expect. Dr Hayward has persuaded himself that the relevant test under section 3(1) is "what level of safety can consumers reasonably expect" - see paragraph 5.1.3 of his report; and has answered that question by saying that because no manufacturer could reasonably have been expected to be aware of the hazard in 1990, consumers could not reasonably expect the product to be free of that hazard - see paragraphs 5.1.2, 5.1.3, 5.3.1 and 5.4.1 of the report. But that is to confuse the test for liability under section 3(1), which is not dependent on fault, with the defence under section 4(1)(e), which enables a producer to escape strict liability if he can show that, having regard to the state of scientific and technical knowledge at the time, he was not at fault in failing to discover the defect.

44. In my view, in the context of the test to be applied under sections 2(1) and 3(1) it is irrelevant whether the hazard which causes the damage has come, or ought reasonably to have come, to the attention of the producer before the accident occurs. To hold otherwise is, to my mind, to seek to reintroduce concepts familiar in the context of a claim in negligence at common law into a statutory regime which has been enacted in order to give effect to the product liability directive promulgated by the Council of the European Communities (Council Directive 85/374/EEC). It is important to have in mind the fifth and sixth recitals to that directive:

"Whereas approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products is necessary because the existing divergencies may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property;

Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;"

45. It follows, in my view, that the judge was right to disregard any suggestion in Dr Hayward's report that the level of safety which persons generally were entitled to expect in relation to child care products had changed between 1990 and 2000. Dr Hayward's remarks to that effect were based on a false understanding of the statutory provisions. The judge was entitled to reach the conclusion, as he did, that the claimant's damage was caused by a defect in the Coseytoes product.

46. The judge did not consider, in terms, a defence based on section 4(1)(e) of the Act. It may be that he was led, by the absence of any pleaded case raising that defence, to the view that it was not being pursued. We thought it right to allow an amendment to the pleaded defence, to enable the point to be considered in this Court. Having considered the point, I agree with Lord Justice Pill that it provides no assistance to the appellant. The reason, as it seems to me, is that the question whether the producer might have been expected to have discovered the defect in 1990 - before the accident to the claimant had occurred - has nothing to do with the state of scientific or technical knowledge at that time. There was no difficulty in discovering the defect by a simple practical test - as Dr Hayward's evidence makes clear. No advance in scientific or technical knowledge since 1990 was required to enable that test to be carried out. The only reason that it was not carried out before 1990 was that manufacturers (it seems) had not thought of doing so. The defence under section 4(1)(e) of the Act is simply not engaged in the present case.

47. In the circumstances that I would uphold the judge's decision under the statute, it is, perhaps, unnecessary to consider the appeal against his decision on the claim at common law. But, for the avoidance of doubt, I should indicate my agreement with the conclusion which Lord Justice Pill has expressed on that point. It was, I think, impossible for the judge to reach a contrary conclusion without rejecting Dr Hayward's evidence as to the state of knowledge in 1990. In that context the state of knowledge is clearly relevant to an assessment of the risk.

48. There remains only the appeal in relation to the amount of damages which the judge awarded in respect of loss of future earnings. I agree with Lord Justice Pill that there is no basis on which this Court can be asked to interfere with the judge's award. There is nothing I wish to add on that point.

49. It follows that I would dismiss this appeal.

WRIGHT J:

50. At the outset of this appeal, Mr Makey on behalf of the Claimant made it plain that in the course of the trial he had contended and still continued to contend that the Claimant was entitled to succeed in this action both on the basis of common law negligence and also on the basis of the Consumer Protection Act 1987. This was helpful, because I have to say that, with the greatest respect to the learned trial Judge, it is not clear to me on reading and re-reading his judgment what is the precise basis upon which he found in favour of the Claimant. In my judgment, it is necessary to consider the two bases for liability separately and discretely.

Common Law Negligence.

51. The existence of a duty upon a manufacturer to take reasonable care to avoid injury to the consumer of his product is beyond question. The issue that falls for decision in this appeal is whether the care that this Defendant took to avoid such injury fell below the standard of what is reasonably required in the particular circumstances. A primary question in this context is the likelihood of harm resulting from the manufacturer's decision to equip his product with this particular kind of securing device; and that likelihood is to be gauged with reference to the state of knowledge which could be attributed to the Defendant at the time of the occurrence. While the learned Judge acknowledged this in the course of his judgment it is not clear to me that he followed the logic through when coming to his conclusion. He regarded the hook on the end of the elastic strap as "an obvious danger"; he also observed "if there is a safety defect in the item today there must have been a safety defect in the item in 1990". The uncontroverted evidence of the joint expert was that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that the elastic attachment straps for a Coseytoes "could pose a hazard to the eyes of children or adults ... ." The learned Judge's conclusion, apart from flying in the face of that evidence, is in my judgment not in accordance with well established authority, such as Roe v Minister of Health [1954] 2 QB 66. To paraphrase the observations of Denning LJ in that case: "We must not look at the 1990 accident with 2000 spectacles". Even if the reasonable layman might have considered that injury of the kind suffered by the Claimant in this case was likely to result from the manufacturer's choice of this particular method of securing the Coseytoes to the pushchair, the test for foreseeability of harm is the individual Defendant manufacturer's standard of knowledge. This in turn is to be derived from the actual or constructive knowledge which a reasonable and prudent Defendant manufacturer would have if he had consulted such literature or made such enquiries as were reasonably to be expected of him. The expert's observation that, if he were advising a manufacturer of this article today, he would advise of the necessity either of giving an appropriate warning or of taking steps to eliminate the risk which he now identifies, seems to me to be avowedly based upon the knowledge that he has gleaned from the circumstances of this very accident, and is accordingly of no relevance to the standard of care to be observed by the reasonably prudent manufacturer of such articles in 1990.

52. There was no dispute between the parties as to the circumstances in which this accident occurred, and the Claimant's description of the event went unchallenged. In such circumstances we in this Court are in as good a position to decide what the outcome in law of such circumstances should be. The evidence of the expert witness plainly establishes that in 1990 the occurrence of such an accident as this would not have been within the reasonable contemplation of the Defendant in the light of his then state of knowledge. On that evidence, in my judgment, on that evidence, the Claimant fails to establish a claim based on common law negligence.

The Consumer Protection Act 1987.

53. I have had the opportunity of reading in draft the judgments prepared by my Lords. I agree with them both and accordingly I wish to add nothing on this aspect of the appeal.

54. I also agree with my Lord, Lord Justice Pill on the question of quantum. In the circumstances I also agree that this appeal should be dismissed.