It is inevitable that there will be occasions when hot drinks are spilled notwithstanding that they have been served in a lidded foam cup. A hot drink served at temperatures between 78.88 C and 90 C would cause a deep thickness burn if it spilled onto a visitor and was in contact with his skin for little more than a second. McDonald’s knew that there was a risk of injury of this sort if a hot drink was spilled. It follows, submits Mr. Horlock Q.C. for the claimants, that McDonald’s were negligent in serving hot drinks at the temperatures they did.
If this submission be right, McDonald’s should not have served drinks at any temperature which would have caused a bad scalding injury. The evidence is that tea or coffee served at a temperature of 65 C will cause a deep thickness burn if it is in contact with the skin for just two seconds. Thus, if McDonald’s were going to avoid the risk of injury by a deep thickness burn they would have had to have served tea and coffee at between 55 C and 60 C. But tea ought to be brewed with boiling water if it is to give its best flavour and coffee ought to be brewed at between 85 C and 95 C. Further, people generally like to allow a hot drink to cool to the temperature they prefer. Accordingly, I have no doubt that tea and coffee served at between 55 C and 60 C would not have been acceptable to McDonald’s customers. Indeed, on the evidence, I find that the public want to be able to buy tea and coffee served hot, that is to say at a temperature of at least 65 C, even though they know (as I think they must be taken to do for the purposes of answering issues (1) and (2)) that there is a risk of a scalding injury if the drink is spilled.
