The case of Bogle and Others v McDonalds Restaurants Limited [2002] EWHC 490 (QB) concerned a group of Claimants who were suing McDonalds for personal injuries caused by the spilling of hot drinks. In all of the cases the hot drink had been purchased by an adult and in all except one it was alleged that a lidded cup containing a hot drink fell over either on or from a tray or on or from a table, the lid came off and part at least of the hot contents poured over the Claimant.
The Claimants contended that McDonalds was liable in negligence in dispensing and serving hot drinks, that the cups or lids were inappropriate and that there was a duty to warn customers of the risks. Also, the Claimants contended that the hot drinks were defective under the Consumer Protection Act 1987 in that they were not of the level of safety such as ‘persons were generally entitled to expect’.
This was a trial of preliminary issues in the High Court in front of Mr Justice Field. Liability was examined under negligence, occupier’s liability and consumer protection.
Was the Defendant negligent in dispensing and serving hot drinks at the temperature it did?
Risk/Potential Injury: Hot drink served at temperatures between 78.88C and 90C, as McDonalds’ drinks were, would cause a deep thickness burn if it spilled on to a visitor and was in contact with his skin for little more than a second.
Knowledge/Foreseeability: McDonalds and the public at large knew that there was a risk of injury of that sort if a hot drink was spilled. Mr Justice Field stated that it did not follow that McDonalds was negligent, (if this were to be the case it would lead to the conclusion that McDonalds (and so the rest of the catering industry) should not serve drinks at any temperature which would cause a bad scalding injury.) The public want to be able to buy tea and coffee served at a temperature of at least 65C even though they know that there would be a risk of a scalding injury if the drink was spilled. Mr Justice Field stated that it would not be right for the law of negligence and occupier’s liability to be responsible for denying to the public a facility they want in the face of a known risk.
Duty of Care
Although McDonalds owed a duty of care to those who visited restaurants to guard against injury. That duty was not such that it should have refrained from serving hot drinks at all. On the evidence it was held that the risk of injury would not have been avoided or reduced if the serving temperature had been 70C for which the Claimants contended. There was no evidence that McDonalds’ serving temperature was unusually hot compared with the serving temperatures adopted by other similar restaurants and outlets.
Alleged Negligent Use of Polystyrene Cups or Lids
The polystyrene foam cups in which the drinks were served were criticised by the Claimants for their high thermal efficiency because that meant that consumers had no sensory understanding of how hot the contents were and the drinks were not allowed to cool. However, it was held by Mr Justice Field, on the evidence, that the cups and lids were adequately designed and manufactured to contain a hot drink if the cup was tipped over. Nor was it negligent for McDonalds to use lids which had to be removed for the drink to be consumed or for creamer and sugar to be added/tea bags to be removed. It was held that McDonalds were entitled to assume that the adult consumer would know that the drink was hot and the risks connected with that.
Duty to Warn
Although McDonalds has since 1995 printed a warning on the cups of hot drinks, it was held that McDonalds was not, on an objective assessment of all the facts, negligent before this date. It was held to be a fair inference that small children very rarely buy or intentionally consume coffee and tea in McDonalds restaurants and persons generally expect tea or coffee purchased to be consumed on the premises to be hot. Persons generally know that if a hot drink is spilled on to someone, a serious a scalding injury can result. They accordingly know that care must be taken to avoid such spills, especially if they are with young children. It was therefore held that there was no duty on McDonalds to warn its customers.
Objective Level of Safety under the Consumer Protection Act 1987
As to what did or did not constitute an unsafe product, Mr Justice Field turned to the analysis of Burton J as stated in A and Others –v- The National Blood Authority & Another [2001] 3 All ER 289, in addressing the following points.
(a) The burden of proving that a product is defective is on the party who so asserts (here the Claimants);
(b) In determining whether the safety of the product is not such as persons generally are entitled to expect, the Court, acting as an informed representative of the public at large, must objectively assess the legitimate expectations of persons generally and whilst those expectations may accord with actual expectation, they may be more than what the public actually expect;
(c) In determining the safety of the product, the Court should take into account all the relevant circumstances including in particular the matters recited in Section 3(2) of the Consumer Protection Act 1987;
(d) The avoidability of the risk of harm is a not a relevant circumstance (it is not a sufficiently relevant enough circumstance to have been included in Article 6 of the Product Liability Directive 1985/374 and it was intended that the most significant circumstances would be listed in that Article);
(e) Products that are obviously dangerous (such as a knife) are not defective: the consumer has a free choice whether to expose himself to the risk, but that choice must be an informed choice.
Persons generally expect tea or coffee purchased to be consumed on the premises to be hot. Many prefer to consume a hot drink from an un-lidded cup rather than through a spout in the lid. Persons generally know that if a hot drink is spilled on to someone, a serious scalding injury can result. They accordingly know that care must be taken to avoid such spills, especially if they are with young children. They expect precautions to be taken to guard against this risk but not to the point that they are denied the basic utility of being able to buy hot drinks to be consumed on the premises from a cup with the lid off.
On the above points Mr Justice Field held that McDonalds was not in breach of the Consumer Protection Act.
Conclusion
This case is an interesting example of the courts refusing to extend product safety law where the injury arises from a product for which the risks connected with its intrinsic properties are well known.
The duty of care did not extend to warning about obvious risks.
The case concerned an objective assessment of the particular facts. If in different circumstances hot drinks were supplied for sale to young children the standards of safety could well be treated as higher than it was here. However, in the case of adults (and teenagers) there is an onus on them to take care when they choose a product such as a hot drink, the risks inherent to which they are aware of, and this duty to take care is increased if they are in control of a child.
For further information, please contact Jessica Burt on 020 7367 3589 or jessica.burt@cms-cmck.com
