Tesco Stores Ltd v Pollard [2006] EWCA Civ 393

A 13-month-old child ingested dishwasher powder after opening a 'child-resistant' cap which complied with British Standards. The Court of Appeal held that Tesco was not liable under the Consumer Protection Act 1987, as the product's safety met public expectations.

Facts

The claimant, Ben Pollard, a 13-month-old child, was found with the cap off a bottle of Tesco’s own-brand dishwasher powder. He had opened the ‘child-resistant’ cap and ingested some of the powder, causing a corrosive injury to his oesophagus. The cap was of the ‘push and turn’ variety and complied with the relevant British Standard (BS 6652:1985), which was in force at the time of manufacture and supply. A claim was brought against Tesco Stores Ltd under the Consumer Protection Act 1987 (‘the 1987 Act’), alleging that the product was defective because its safety was not such as persons generally were entitled to expect.

Issues

The central legal issue was whether the dishwasher powder was a ‘defective’ product within the meaning of section 3 of the 1987 Act. This turned on the interpretation of what level of safety ‘persons generally are entitled to expect’ concerning a product with a child-resistant closure that complies with a recognised British Standard. The court had to determine if the term ‘child-resistant’ created an expectation of absolute child-proofing, or a lesser standard of deterrence.

Judgment

The Court of Appeal, in a leading judgment by Lord Justice Laws, allowed Tesco’s appeal and overturned the trial judge’s decision. The court held that the product was not defective under the 1987 Act.

Standard of Safety under the 1987 Act

Laws LJ distinguished liability under the 1987 Act from negligence. The test is not what a reasonable manufacturer would do, but what the public is entitled to expect. He stated:

The question for the court is not what would have been done by a very careful manufacturer, nor what would have been done by a reasonable manufacturer… The question is what persons generally are entitled to expect.

The court emphasised that the standard of safety expected by the public is not one of absolute safety. The public is entitled to expect a standard of reasonable safety, taking all circumstances into account.

Compliance with British Standards

Significant weight was given to the fact that the product’s cap complied with the relevant British Standard. While not a conclusive defence, Laws LJ noted that compliance is a ‘very important’ factor in determining the level of safety the public is entitled to expect. The general public would expect a product marketed as compliant with a British Standard to be reasonably safe according to that standard.

Meaning of ‘Child-Resistant’

The court concluded that the public does not and should not expect a ‘child-resistant’ cap to be ‘child-proof’. The very term ‘resistant’ implies a barrier to be overcome, not an absolute prevention. Laws LJ articulated the court’s reasoning clearly:

In my judgment the 1987 Act does not require that a product of this kind has to be made completely safe, or `child-proof`. The most that can be expected is that it be made child-resistant, so as to go as far as reasonably possible to prevent a child getting at the contents. The expression `child-resistant’ is not a term of art. It is a relative concept. It does not mean `child-proof’. It means that the container is resistant to being opened by a child. A moment’s reflection by the consumer would demonstrate that the push and turn top is not going to be impossible for a child to open. Given a few minutes with the top, the child might well succeed.

Therefore, the fact that a child managed to open the cap did not, of itself, mean the product’s safety fell below the expected standard.

Implications

This case provides crucial clarification on the concept of ‘defect’ under the Consumer Protection Act 1987. It confirms that the test is based on public expectation, not the manufacturer’s conduct. A key implication is that compliance with relevant safety standards, such as British Standards, is a highly persuasive factor in demonstrating that a product meets the expected level of safety, even if it does not provide an absolute defence. The judgment also sets a pragmatic precedent regarding ‘child-resistant’ packaging, establishing that it promises a degree of difficulty for a child, not an impenetrable barrier. This protects manufacturers and retailers from strict liability where they have adhered to recognised industry standards for inherently dangerous products.

Verdict: The appeal by Tesco Stores Ltd was allowed. The claim against Tesco failed.

Source: Tesco Stores Ltd v Pollard [2006] EWCA Civ 393