UK: Hot Drinks and Consumer Protection – Bogle & Others v McDonalds Restaurants Ltd [2002]

Last Updated: 27 November 2002
Article by Jason Bright

A group of claimants sued for personal injuries caused by the spillage of hot drinks served by the defendant McDonalds. The claimants were all separate and distinct, but shared a number of common features and allegations and were, therefore, made a subject of a group litigation order. The majority of the claimants were children.

A series of 7 generic issues fell to be determined by Mr Justice Field by way of preliminary issue. Those issues included whether the Defendant was negligent in dispensing and serving hot drinks at a temperature which it did, and whether the Defendant was in breach of the Consumer Protection Act 1987.

The most significant complaint lodged by the Claimants was in relation to the construction of the cups. The Claimants’ expert sought to criticise the cup’s foam construction for its high thermal efficiency, on the basis that this deprived the consumer of any sensory understanding as to how hot the contents were, with the result that the drink was not allowed to cool. In addition, criticism was levelled at McDonalds on the basis that a consumer would not be able to add sugar or creamer to the drink without taking off the drink’s lid. They further contended that McDonalds ought to have served the drinks at a lower temperature, namely at 70°C, rather than at between 75°C and 95°C.

The Claimants relied upon the expert advice of their appointed mechanical engineer, who had experience in the food and allied processing industry. However, the evidence of this expert was not persuasive. In particular, Field J commented that:

"Those matters in which he [i.e. the expert] did give an expert opinion were in large measure outside his particular expertise and his opinion was based not on direct testing by him of the cups and lids defects, but on an indirect analysis focusing on McDonalds’ specification and the method of manufacture. For these reasons, I am bound to say that I did not find [him] an impressive witness."

The judge held that the public wanted to buy drinks which were served hot, even though there was a risk of scalding if the drink was spilled. Further, there was no cogent evidence which suggested that a risk of injury would have been reduced if the drinks were served at lower temperatures. Similarly, there was no evidence that lower temperatures would have been accepted by consumers. Indeed, the temperature the drinks were served at was that reflected by the catering industry as a whole. Whilst McDonalds owed a duty of care to those who visited their restaurants, that duty was not such that they ought to have refrained from serving hot drinks at all.

The Claimants’ expert witness sought to criticise the foam cup utilised by McDonalds for serving the drinks on the basis that its high thermal efficiency deprived the consumer of any sensory understanding as to how hot the contents were, with the result that the drink was not allowed to cool. However, the judge stated that he was satisfied that McDonalds was entitled to assume that the consumer would know that the drink in question was hot, and that there were numerous ways of speeding up the cooling process, such as stirring the drink or blowing it.

Whilst the Claimants’ expert had sought to criticise McDonalds on the basis that it had undertaken no "drop test" in relation to the development and manufacture of the cups and lids (i.e. a test to show that if the cup was dropped, the lid would be retained) it materialised that the expert himself had not carried out such tests either. As a result, not only did the judge criticise this omission on the expert’s part, but he was inevitably led to conclude that the cups and lids were adequately designed and manufactured.

The judge held that most consumers would know that the drinks were made with very hot water and that when they were spilled they would cause painful and serious injuries. It followed that there was no duty, in such circumstances, on McDonalds to warn their customers about the risks posed by the temperature at which they served the drinks.

Insofar as the Claimants’ claim under the Consumer Protection Act 1987 was concerned, the judge held that the safety of the hot drinks concerned met the public’s legitimate expectations as to safety generally. A consumer would generally expect tea or coffee purchased to be consumed on the premises to be hot. Such persons generally knew that if a hot drink was spilled on to someone, serious scalding could result. Accordingly, in serving drinks in the manner which it did, McDonalds was not in breach of the 1987 Act.

Whilst certain aspects of this judgment may be open to criticism (not least the judge’s comments in relation to the provision of warnings on the drinks themselves) the case represents a welcome decision for manufacturers, against a background of recent decisions involving the Consumer Protection Act 1987 which had been found in favour of Claimants. The case of Bogle also provides a timely reminder as to the importance of ensuring that any expert appointed is able to deal competently with the technical issues which such a case generates, and is able to back up his written findings from the witness box. In this particular instance, it would appear that the Claimants’ expert was found wanting in that respect.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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