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Tesco Stores Ltd & Anor v Pollard, Court of Appeal, 12 April 2006

20 April 2006
The issues

Consumer Protection Act 1987 Section 3, Defective Product; whether consumer is entitled to expect a bottle of dishwasher powder that had a child resistant closure cap would be more difficult to open than an ordinary screw top; whether such a product was defective under the Consumer Protection Act 1987.

The facts

In August 1997 the Claimant, Conner, was a little boy of 13 months. He swallowed dishwasher powder from a plastic bottle. He became very ill. The bottle had been bought from Tesco. Tesco Stores were the First Defendant. The powder was Tesco’s own brand but the bottle was made by the Second Defendant. The case against the First and Second Defendants was that the neck of the bottle and the cap were defective so the cap was easier to detach than it should have been. In December 2003 the First and Second Defendants joined the little boy’s mother as a Part 20 Defendant claiming that she had left the bottle in a place where the little boy, Conner, could see and reach it and had either left the cap off or had not properly screwed it up. The mother was subsequently joined as Third Defendant to the claim. At trial the Judge found the First and Second Defendant liable. The mother was acquitted of any negligence. The First and Second Defendants appealed; a Respondent’s Notice was put in on behalf of Conner by which permission to appeal was sought in the event that the First and Second Defendant’s appeal was allowed in order to challenge the Judge’s findings exonerating the mother.

The decision

The Judge had found the First and Second Defendants liable on the basis of two causes of action pleaded against them – negligence and breach of statutory duty. The statute relied on was the Consumer Protection Act 1987. It was common ground there was no legal requirement whether arising from the Chemical Regulations 1994 or any other regulation that the dishwasher powder should be packaged and sold in a container equipped with child resistant closure lock. In fact the cap was such a lock but the pressure required to release it was 18 inches per pound when the cap was flat as against 33 inches per pound as was given on the British Standards Certificate issued in relation to this cap design. In effect the bottle was easier to open without squeezing the top than it should have been but it still had some child resistant effect. This was a case of breach of statutory duty or nothing at all. It was not reasonably foreseeable that the accident would happen purely on the basis that it proved possible for Conner to open the bottle, coupled with the fact that the British Standards Certificate was not met. The Law did not systematically require for a common law duty of care to be established that the precise chain of events culminating in the damage suffered by the Claimant had to be foreseeable step by step. But in a case like this any calculation of foreseeability had to assume that the child’s parents would in the home take steps to prevent his having access to the bottle.

Section 3.1 of the 1987 Act provided:-

” There is a defect in a product for the purposes of this part if the safety of the product is not such as persons are generally entitled to expect.”

It was the Claimant’s case that the shortfall in the pressure required to unscrew the cap amounted to a defect. It was argued for the Claimant that the public were entitled to expect that the product functioned to the full extent of the design standards to which it was manufactured, which in this case meant the same as compliance with the British Standard measure. If this was right it meant that every producer of a product whose use caused injury effectively warranted to the public that the product fulfilled its design standard. In reality members of the public were unlikely to have the faintest idea to what safety standard the product they were buying had been designed, if it had been designed to any. The argument on behalf of the Claimant required a radical re-writing of the statute and were an attempt to confer on purchasers and users of everyday products a right to sue the product’s producers as if there were a contractural warranty as to the safety standard to which the product had been designed.

People were “generally entitled to expect” in respect of the safety features of the cap and bottle that the bottle would be more difficult to open than if it had an ordinary screw top. Nothing more specific was possible. In this case the bottle was more difficult to open than an ordinary screw top though not as difficult as it would have been if the British Standard measure had been complied with. There was therefore no breach of the 1987 Act. As to the dismissal of the claim against Conner’s mother the Judge was entitled on the facts to come to the finding he had reached. There was therefore no case of negligence against her either.

Appeal allowed.

Crosse Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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