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Tesco Stores & Another v Connor Frederick Pollard (a minor) [2006] EWCA Civ 393
1. In Tesco Stores & Another v Connor Frederick Pollard (a minor), the Court of Appeal strictly delimited the meaning of “defect” for the purposes of the Consumer Protection Act 1987 (“the 1987 Act”). The decision will delight defendants and their representatives.
Background
2. The original claim arose out of an incident on 20 August 1997 when Connor Pollard, a child of nearly 13 months, ingested dishwater powder from a plastic bottle and consequently became seriously ill. The Tesco-branded powder had been purchased from a Tesco store but the bottle, which had a child resistant closure (CRC) cap, had been manufactured by another company. The product was left by the child’s mother, Mrs Pollard, on a kitchen work surface and he had managed to reach it when she left the room.
3. Proceedings were issued against both Tesco Stores Limited (“the first defendant”) and the manufacturer (“the second defendant”), on the basis that the neck of the bottle and the CRC cap were defective, making the cap easier to detach than it should have been. The first and second defendants later joined Mrs Pollard as a Part 20 Defendant on the basis that she had negligently left the bottle in a place where the child could see and reach it, and had either left the cap off or had not screwed it on correctly.
The 1987 Act
4. The first and second defendants were sued primarily under the aegis of the 1987 Act. Section 2 the 1987 Act provides that a producer or someone who holds themselves out as such (e.g. by putting his name on the product as had Tesco) is liable for any damage “caused wholly or in part by a defect in a product.”
5. Section 3 provides that there is a defect “if the safety of the product is not such as persons generally are entitled to expect.” Matters to be taken into account in determining such expectations include, among other things, “the manner in which, and purposes for which, a product has been marketed, its get up [and] the use of any mark in relation to the product”.
Decision at First Instance
6. A British Standard certificate had been issued in respect of the CRC cap design after appropriate tests had been carried out, which specified 33 in/lb as the proper minimum torque required to unscrew the cap of the bottle without squeezing. At trial expert evidence showed that, in practice, the torque strength required to unscrew the cap fell below this minimum standard, although the cap still had some “child resistance” effect. In these circumstances, the judge dismissed the Part 20 claim against Mrs Pollard and found the first and second defendants liable in negligence at common law and under the 1987 Act. The judge reasoned that:
(i) As the bottle had been fitted with a CRC, the public was entitled to expect and would expect such a safety device to function at least up to the standard usually applied to CRCs, namely the British Standard certificate;
(ii) The CRC cap was therefore defective because it fell well below the standard required for CRCs in the British Standard certificate;
(iii) It was clearly foreseeable to both defendants that if the CRC was defective a child might suffer the type of injuries Connor had sustained and that a consumer would rely on the effectiveness of the CRC.
Court of Appeal
7. On appeal by the first and second defendants, Law LJ dismissed out of hand the notion that they could be liable at common law, on the basis that the accident itself was not foreseeable. He reasoned that any calculation of foreseeability must assume that the child’s parents will take steps in the home to prevent a child having access to the bottle. It was not enough to prove that the child had opened the bottle and that the British Standard certificate had not been met.
8. The critical issue, therefore, was whether there had been a breach of the 1987 Act which was causative of the child’s injuries. The Court of Appeal concluded that there had been no such breach. In so doing, Law LJ strictly delimited the test to be applied in determining the meaning of defect under section 3(1). He held that it was not “given, or informed, by any cross-reference to any other provisions (such as the British Standard regime) which impose precise objective requirements which have to be met for safety purposes. The test is, and is only, "what persons generally are entitled to expect”…” (paragraph 15).
9. On facts of this case, the people were only entitled to expect “that the bottle would be more difficult to open than if it had an ordinary screwtop” (paragraph 18). As the bottle with a CRC cap was more difficult to open than an ordinary screwtop, there had been no breach of the 1987 Act even though it would have been much harder to open if the British Standards had been complied with.
10. Significantly, the Court of Appeal rejected the contention that, by implication, the public are entitled to expect a product to function to the design standard to which it is manufactured, in this case the British Standard torque measure. Laws LJ indicated that there was no reference to such a standard on the bottle, packaging or product and no reason to suppose that members of the public would have been aware that the standards existed. In the circumstances, he was not prepared to read such an obligation into the terms of the 1987 Act on grounds of public interest (paragraph 17):
“[if the British Standard regime applies], it means that every producer of a product whose use causes injury effectively warrants to the general public that the product fulfils its design standards…In my judgment [these] arguments in truth demand a radical rewriting of the statute. They are an attempt to confer on purchasers and users of everyday products a right to sue the product's producers as if there were a contractual warranty as to the safety standard to which the product had been designed. It is quite impossible to get such a result out of the terms of the 1987 Act.”
Conclusion
11. Suppliers of safety products will breathe a sigh of relief that the Court of Appeal has refused to broaden the meaning of defect for the purposes of the 1987 Act by stipulating compliance with recommended design standards. Crucially, there was no mention of the relevant British Standards on the packaging or the bottle itself in this case. Providing that there are no such specific representations, it is sufficient that a product designed with special safety features is simply more secure than a product without such features. It would seem that the consumer is not entitled to expect anything more.
LIONEL STRIDE
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