Justice for Iman after a 10-year delay
The case:
The Court of Appeal gave Judgement on December 21, 2000 in the case of Abouzaid v Mothercare (UK) Ltd following an accident, which occurred on November 16 1990.
Further delay resulted when the defendants sought leave to appeal to the House of Lords. This was turned down in May 2001 thus ending a ten-year struggle for justice for the twelve-year-old boy who is now twenty-two. The Court awarded £36,000 damages for the injuries to Iman that was eventually paid in July 2001.
Background:
Iman Abouzaid (pictured) was only twelve years old when he tried to help his mother fit the Coseytoes to hold his baby brother in his pushchair. The Coseytoes was a fleece-lined cotton "pocket" for carrying an infant fixed to the frame of a pushchair by means of two elasticised strips connected by a loop and metal hook. Both products had been purchased from Mothercare and should therefore have been compatible. However Iman and his mother had great difficulty trying to fit the Coseytoes to the pushchair that was compounded by the fact that there were no fixing instructions with the product. Acting quite reasonably, Iman stretched the elastic strap across the buggy to secure it but the metal fastening on the other end suddenly detached and struck him in his left eye with considerable force.
Following surgery to treat "a severe non blunt penetrating injury causing a shallow temporal half detachment of the retina" Iman developed cataracts and now has no useful central vision in his left eye. Further surgery is planned.
RoSPA:
In July 1992 RoSPA's Product Safety Advisor was asked to prepare a report by Iman's solicitors. In it he stated that the Coseytoes product was not reasonably safe and that the defect was the cause of the injury to his eye.
The report suggested it would have been better to have the metal hook securely attached to just one side of the product and for the looped elastic tape to be in one piece. Also, a safer alternative to the thin metal hook would have been one made of plastic with well-rounded edges. If a Failure Modes and Effects Analysis had been carried out on the product, in particular the method of fixing, it would have showed that the small sharp piece of metal could be released inadvertently and propelled at sufficient force cause personal injury.
Defence:
A further expert report was commissioned by the defendants which appeared to be more sympathetic to their cause. Presumably it was this that encouraged them to challenge the decision of the lower court and even appeal to the House of Lords. RoSPA has not seen this report and has invited a comment on the case from Mothercare.
The defendants tried to rely on the lack of previous history of injuries having been caused by their product. However the Judge found that the product was defective irrespective of any history of previous accidents.
It is widely recognised and should have been known to the defendants at the time that information provided in the HASS data did not give sufficient detail to identify particular products, including theirs. Also, most serious eye injuries as in this case are treated in specialist hospitals rather than the Accident and Emergency Departments that provide the HASS data. It is extremely unlikely therefore that any information prejudicial to the defendants would ever have been found in the official database.
Judgement:
The judge said that when deciding whether a product was defective in breach of statutory duty under the Consumer Protection Act 1987, it was irrelevant whether the hazard which caused the damage had come, or ought reasonably to have come to the attention of the producer before the accident occurred. However it was conceded that the absence of previous comparable accidents was a relevant factor when deciding whether there had been a breach of duty in negligence. But negligence on the part of the defendant doesn't now have to be established because of the strict liability regime introduced under Part 1 of the Consumer Protection Act 1987 enacting the Product Liability Directive.
The Court of Appeal dismissed the appeal by the defendant, Mothercare (UK) Ltd, from the decision of Judge Simpson in the Mayor's and City of London Court on May 23, 2000 giving judgement for the plaintiff, Iman Abouzaid, on his claim under the 1987 Act, and in negligence, for damages in respect of an injury to his eye sustained in 1990 as a result of the recoil of an elasticised strap attached to one of the defendants products.
The case turned on whether there was in the product a defect as defined in section 3 of the 1987 Act and article 6 of the Product Liability Directive. The defectiveness of the product was to be determined by reference not to its fitness for use but to the lack of the safety to which the public at large were entitled to expect.
The defence under section 4(1)(e) presupposed a finding that a defect was present but sought to rely on the absence in the Department of Trade and Industry's database of any record of a comparable accident at the time of supply, as scientific and technical knowledge not available in 1990. It was submitted that such records ranked as technical knowledge under the section and that only with the knowledge of accidents might the producer have been expected to discover the defect.
Fortunately for Iman the judgement concluded that this argument failed, first, on the ground that the defect, as defined, was present whether or not previous accidents had occurred. Second, his Lordship was very doubtful whether, in the present context, a record of accidents came within the category of scientific and technical knowledge.
The absence of previous comparable accidents however was a relevant factor in determining whether there was a breach of duty in negligence in manufacturing a product that caused injury. It was determined therefore that on the present facts a defect, as defined by section 3, was present upon the public expectation test but there was no negligence at common law.
Lessons:
RoSPA asks that the following matters be urgently considered by the authorities and relevant bodies and appropriate action taken:
- The no-fault liability procedures adopted by Australia and others whereby the injured person's medical and other essential needs are met immediately, appears a far better system, far superior to ours. Blame and penalties can then be determined in due course.
- Ten years is too long for a product liability case to be resolved. The award in this case was only paid after leave to appeal to the House of Lords was refused, ten years after the accident!
- The courts and all concerned must be made aware of the misuse and/or misinterpretation of accident data. Eye injuries are under-reported because like burns they are usually treated in specialist hospitals and therefore are not recorded in the A&E hospitals that provide the HASS data. Also, particular products cannot be identified in the data.
- The limited research carried out on the application of the Product Liability Directive shows little benefit for injured persons generally throughout Europe. Reform is needed urgently.
- A database is required of all product liability cases throughout Europe.
- Fortunately Iman was entitled to Legal Aid but this facility is not widely available. Other deserving cases go unresolved.
- Manufacturers and suppliers, indeed all potential defendants must reassess their approach to product liability. To deny modest compensation to an injured child in defiance of a report by a recognised expert as to the safety of the product and to pursue expensive litigation over many years seems perverse in the extreme.
- Manufacturers must adopt a more pro-active approach to product design identifying hazards at an early stage and eliminating them where possible. The use of Risk Assessment and Failure Modes and Effects Analysis techniques should be more widely adopted and all such records on each product kept in a technical file to be made available for official inspection.
- Manufacturers and suppliers should be required to notify an official body as soon as they become aware of a safety problem with any of their products.
- Despite the injuries sustained by Iman, which must have had a serious affect on his development particularly his education, he appears happy and successful and is pursuing a career in hotel management. He is anxious that lessons may be learnt from his experience and RoSPA is grateful to him for his cooperation in bringing his case to your attention.
David Jenkins
Product Safety Advisor
RoSPA - August 2001
Email: help@rospa.com
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