Dissent under the golden arches

Potential litigation against McDonalds as to whether the temperature of its coffee is responsible for serious burns could backfire on the profession, writes Chris Fogarty

It is a case that will bring a smile to the face of even the most hardened tabloid headline writer. Three English law firms have been granted limited legal aid with a view to suing McDonalds on behalf of customers who claim they were severely burnt by the fast food chain's coffee.

The action follows in the wake of the now infamous 1994 Liebeck v McDonalds litigation that saw 81-year-old Stella Liebeck initially awarded US$3m in damages after a cup of coffee spilt in her lap, causing third-degree burns.

The Liebeck case became a rallying call for Americans opposed to what they saw as unreasonable levels of personal damages being awarded and the lawyers who were supposedly engineering them. Calls were made for a cap on damages and a reform of tort law.

Now Manchester's Slater Heelis, London-based Malnick & Rance and Stockport's Lea & Co are in the preliminary stages of an action in which McDonalds in the UK may have to answer for “bloodcurdling burns” suffered by around half a dozen of their customers.

The action has received only limited publicity and is potentially years away from the courtroom door, but one of the lawyers involved has already received hate mail from a London man claiming that his “civil liberties” and right to drink steaming hot coffee are at risk.

It is an ominous sign of things to come. And, as the Government and the profession wage a war of words over legal reforms such publicity could not come at a worse time.

The Bar Council and the Law Society won press and public sympathy when they demonstrated how a brain-damaged baby could fail to win damages under the Government's conditional fees proposal. But can coffee-spilling customers elicit similar sympathy?

Slater Heelis solicitor Adrienne de Vos is only too aware of the public relations pitfalls of the McDonalds case: “We obviously accept that coffee has to be hot but the injuries people have suffered are severe third-degree burns.”

She does not accept the argument that if people are “clumsy” with their coffee they should accept the consequences. She sighs at the very mention of the US$3m Liebeck case and then puts it into the plaintiffs perspective. Evidence was produced in the Liebeck case that the temperature that McDonalds serves its coffee at is 180 to 190 degrees while the average cup of coffee at home is 135 to 140 degrees.

The bulk of the settlement was made up of US$2.7m in punitive damages. That equated to two days-worth of turnover of McDonalds' coffee sales in the US. A judge later reduced the award to US$480,000.

Even though it has been stung by the bad publicity generated by the notorious McLibel trial, McDonalds may feel the public is in its corner this time due to growing hostility against personal injury lawyers.

That hostility could not have been better illustrated than at the Association of Personal Injury Lawyers (Apil) conference in 1996. National Consumer Council Policy officer Marlene Winfield told the 350-strong audience that cases took too long, settled too late and that costs were out of proportion to damages. Other speakers accused local personal injury lawyers of following their litigation-happy US counterparts.

However, Malnick & Rance assistant solicitor Malcolm Johnson, whose notice in an Apil newsletter sparked the McDonalds action, says it would be misleading to suggest this case is an example of the US culture of “sue-“em-and-run”.

“The British are notoriously difficult to drag into court,” he says.

Research by Accident Line shows that only one in five consumers with a genuine personal injury case are prepared to go to court.

Having learnt from the mistakes of their US counterparts, British lawyers will attempt to win public sympathy rather than antagonise it if this case goes ahead.

“The angle we are taking is the nature and extent of injuries,” says de Vos.

However, Johnson has a more jaded view of the press and public reaction about the case's merits. “Our duty is to our clients not the general public. Our clients are the ones who pay the bills,” he argues.

This is not strictly true of course, as the Legal Aid Board funds most of the disbursements. Johnson has already spent £1000 on plastic surgeon and psychologist reports for the McDonalds case and worries how firms will fund such research under conditional fees.

For her part, de Vos does not think conditional fees will further damage the image of personal injury solicitors when it comes to claiming their share of any damages.

“The last thing we want is headlines in the tabloid newspapers saying, “my lawyer took half my fees',” she says.

But cases like the potential McDonalds litigation pose problems for the profession's image as a whole.

Jon McLeod, a director at public relations firm Shandwick, warns the more tenuous the case the more cynical the public become. McLeod, a former adviser on media matters to the Bar Council, says that it is important for lawyers to explain both in court and on the courtroom steps the mitigating factors in controversial cases.

“If the impression forms that people sue for anything, the public is going to take an even more cynical view of lawyers.”

Governments have not been slow to use this cynicism to push their own agenda, particularly in the area of legal aid.

The filtering of information to the Daily Mail of the massive bills in the Maxwell pensions case is a prime example of this.

For the moment it hangs in the balance as to whether any McDonalds coffee case in the UK will be seen as a triumph for justice or be used as yet another stick for both the public and Government to beat the legal profession with.