Buckley v Henkel Ltd (Liverpool CC) (25 November 2013)

facts

The claimant, who had suffered a severe allergic reaction to a hair-dye product manufactured by the defendant, had not made out her case that the product was defective under the provisions of the Consumer Protection Act 1987.

The claimant (B) brought a claim for damages for personal injury against the defendant company (H).

B had suffered a severe allergic reaction to a hair-dye product manufactured by H. The product contained a chemical called Toulene-2,5- Diamine Sulphate (PTD) which was capable of causing an allergic reaction in some people. B asserted that on May 13, 2009 she read the instructions accompanying the product. Those instructions stated, among other things, that a sensitivity test (the patch test) should be carried out. B said that she carried out the test and that it resulted in no adverse reaction. On May 15, she applied the product to colour her hair in accordance with the instructions and went on holiday. Two days later, she suffered a severe allergic reaction. She relied on the report of an expert in chemistry (L), who had concluded that PTD and the oxidative hair-dye process generally could not be regarded as safe because they involved potent allergens.

B argued that the safety of the product was not such as persons generally were entitled to expect within the meaning of the Consumer Protection Act 1987 s.3(1); first, the presence of PTD made the product defective; second, the patch test was defective in that it did not enable her to reliably ascertain whether she was allergic.

Held

HELD: (1) B had not sufficiently proved that the presence of PTD made the product defective. People generally would not be entitled to expect that certain products would be completely free from risk (particularly if those risks were highlighted). In the case of this product and hair dyes generally, there would arguably be a greater awareness of risk given that the very nature of hair dye involved a chemical process. The risks associated with the product would be informed to a degree by the fact that hair dyes using PTD had been on the market for many years and also by the information contained within the product itself. The product was accompanied by a leaflet containing detailed instructions, and it was intended and expected that they would be read by the user. The instructions referred at several points to the fact that an allergic reaction might be experienced. The word "severe" was used. It was therefore clear from the instructions that there was a risk of an allergic reaction, and a number of warnings and precautions were highlighted. Details of what type of allergic reaction might occur were also set out. That would leave the user in no doubt as to what could constitute a severe allergic reaction. The leaflet also advised the user to consult a doctor if in doubt and to seek immediate medical attention if an allergic reaction occurred. It was also relevant that PTD had been permitted under Directive 76/768 at the relevant time and continued to be permitted under the later EU Cosmetics Directive. B's evidence in support of the allegation that the product was defective was primarily L's report; however, his evidence did not clearly support a conclusion that the product was defective within the meaning of the Act. Although his opinion was a factor which weighed in favour of B's case, it was not determinative (see para.82 of judgment). (2) B had also not sufficiently proved that the patch test was defective. L had stated that the test was not 100 per cent effective and that it would be hard to improve on it. While the test could increase or introduce further expectation as to safety, it was designed as a precautionary measure. The instructions said that it reduced the risk but did not eliminate it, and that the absence of a reaction was no guarantee that a reaction would not occur. Those factors were relevant when considering the question of safety which persons generally were entitled to expect. Moreover, the patch test was designed to make the product safer to use; it was difficult to accept the proposition that a procedure introduced into a product to improve its safety should then make the product itself defective because it was not 100 per cent effective when it did not purport to be (para.83).

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