Tesco Stores Ltd v Pollard [2006] EWCA Civ 393

A 13‑month‑old child ingested dishwasher powder from a Tesco own‑brand bottle with a child‑resistant cap that did not meet British Standard torque levels. The Court of Appeal held there was no defect under the Consumer Protection Act 1987 and no common law negligence, allowing Tesco’s appeal and dismissing a cross‑appeal against the child’s mother.

Facts

The claimant, C, was a 13‑month‑old child who became very seriously ill after ingesting dishwasher powder on 20 August 1997. The powder was Tesco’s own brand, contained in a plastic bottle manufactured by the second defendant. The bottle was fitted with a child‑resistant closure (CRC), a squeeze‑and‑turn cap designed and made by Cope Allman Ltd. Tesco Stores Limited was the first defendant; the bottle manufacturer was the second defendant.

The bottle was kept in the Ps’ kitchen, normally in a cupboard with a child lock. On the day of the accident, Mrs P used the powder to fill the dishwasher, replaced the cap and said she put the bottle on the work surface above the dishwasher, out of C’s reach, rather than back in the cupboard because of washing on the floor.

After taking a telephone call in the lounge, Mrs P realised C was no longer there. The judge found that C had been out of sight in the kitchen for at least two minutes. When she entered the kitchen, she:

“saw C sitting in the middle of the bundle of washing in front of the hobs with the dishwasher powder container to his lips and his head right back”

and in her oral evidence said:

“the cap was lying next to him. There was powder in his mouth and small amounts of powder on his hands.”

Expert evidence showed that the torque required to open the cap without squeezing was about 18 in/lb when the cap was flat and 10 in/lb when lifted, whereas a British Standard certificate for this cap design specified a minimum torque of 33 in/lb. Thus the CRC did not meet the British Standard, but it still offered more resistance than an ordinary screw cap.

C’s torque strength at the time was between 6.5 and 7.8 in/lb. His grip span was shorter than the cap diameter, and given his height and reach relative to the 90 cm work surface, the judge concluded he probably reached the bottle by standing on the pile of washing and that Mrs P had likely placed the bottle nearer the worktop edge than she recalled.

The first and second defendants issued Part 20 proceedings against Mrs P, alleging she had left the bottle accessible and the cap off or inadequately secured. She was joined as third defendant to protect C’s position should negligence be found against her.

Issues

1. Common law negligence

Whether Tesco and the bottle manufacturer owed and breached a common law duty of care, particularly in light of the CRC not meeting British Standard torque requirements, and whether the injury was reasonably foreseeable on the facts as found.

2. Consumer Protection Act 1987

Whether there was a “defect” in the product within section 3(1) of the Consumer Protection Act 1987, namely whether:

“the safety of the product is not such as persons generally are entitled to expect”

by reason of the lower‑than‑standard torque required to open the CRC.

The claimant’s case was that the shortfall from 33 in/lb to 10–18 in/lb constituted such a defect.

3. Liability of the mother, Mrs P

Whether Mrs P was negligent in where she placed the bottle, how she secured the cap, and in allowing C to be alone in the kitchen, and whether any such negligence caused C’s injuries. A respondent’s notice sought, in the event Tesco’s appeal succeeded, to challenge the trial judge’s finding exonerating her.

Judgment

Findings at first instance

His Honour Judge Simpkiss, in a split trial on liability, found the first and second defendants liable in negligence and under the Consumer Protection Act 1987. He found that the CRC was defective and that:

“what most probably happened”

was that C reached the bottle by standing on a pile of washing, possibly knocking it sideways or to the floor. He held it was unrealistic to assume C would attempt to open the CRC like an adult, observing:

“It is highly unlikely that a child of 13 months would or could have turned the CRC in either of the ways used by the expert. There was bound to be some squeezing, pulling, twisting and pushing.”

He further stated:

“It is wholly unrealistic to expect a child of C’s age to replicate the tests used by either expert and not to apply any squeezing at all. Mr Scaife accepted that there would have been some squeezing and that this would have reduced his torque figures. C would also be likely to hold the container with his feet or knees and could easily then have applied both hands. Mr Norman’s analytical approach is in my judgment both artificial and unrealistic.”

Concluding on causation and defect he said:

“This CRC was defective for a number of reasons. As a result there was much more play between the cap and screw and very much less torque was required to open it than the specification, even if there was no squeezing applied. I am satisfied that the defective CRC was causative of C obtaining access to the contents of the container.”

Regarding Mrs P, the judge found her to be:

“an impressive and credible witness”

held that she had put the bottle on the work surface with the cap properly engaged:

“put the cap on so that it clicked beyond the lugs”

and held that she was not negligent in allowing C to be out of sight in the kitchen for the period in question.

On the Consumer Protection Act 1987 issue, he reasoned that by marketing the product with a CRC, consumers were entitled to expect it to meet CRC standards:

“40. In my judgment, having elected to fit a CRC to this bottle the consumer was entitled to expect and would expect the CRC to function at least up to the standard usually to be applied to CRCs. The consumer has little or no knowledge of the actual standards (indeed the relevant certificates are usually highly confidential documents). What he or she expects is that there are standards which are set by the proper authorities and that these standards are applied.

41. It was argued on behalf of the defendants that this CRC was not a legal necessity and that this should be taken into account in considering whether the product was defective. I cannot agree with that suggestion. The consumer is not to be taken to know when a CRC is required but when one is fitted is entitled to expect that it is up to the standard required of a package fitted with a CRC. The possibility that CRCs might be fitted as a marketing feature strongly emphasises the public interest and importance of ensuring that the standard is appropriate since otherwise a false sense of security is created.

42. This product was marketed with a CRC which Mr Garnett described as “a safety feature” and in my judgment this gave rise to an expectation that it would at least have the qualities to be expected of a standard CRC. The contents were described by Tesco as being borderline corrosive/irritant and it is probable that the CRC was put on the container because of this. At any rate the contents of the powder with the formulation at the date of the accident were such that the potential for damage to a small child if he or she obtained unsupervised access to it was considerable. It was clearly foreseeable to both defendants that if the CRC was defective a child might suffer the kind of injuries suffered by C by gaining access to the contents. It was also foreseeable that a consumer would place some reliance on the effectiveness of the CRC.

43. This is a clear case of breach of duty. Having fitted a CRC on this container and then marketed the dishwasher powder with the CRC the defendants have plainly represented that the item has a CRC which satisfies any standards that are applicable to CRCs. The evidence of the packaging experts is that the CRC package fell well short of the standard required for a CRC. I am also satisfied that there was no Quality Control in place with regard to the efficacy of the CRC and whether it met the specifications. Had there been then it should easily have been established that the standard had not been met and that the CRC did not perform to its intended specification or anything approaching it.”

Court of Appeal: common law negligence

Laws LJ, with whom Wilson LJ and Sir Paul Kennedy agreed, held that the case was effectively “one of breach of statutory duty or nothing”. He considered that, given the judge’s exoneration of Mrs P, the scenario by which the injury occurred was not reasonably foreseeable in the sense required for common law negligence against Tesco and the manufacturer.

He accepted that foreseeability does not require every step in the chain of events to be predicted, but emphasised that in the home context any calculation of foreseeability had to assume that parents would take steps to prevent a child accessing such a bottle. In those circumstances, the mere combination of the child’s success in opening the bottle and the British Standard shortfall did not provide a sufficient basis for a negligence claim.

Court of Appeal: Consumer Protection Act 1987

The key issue was whether the reduced torque relative to the British Standard constituted a “defect” within section 3(1). Laws LJ observed that the statutory definition is self‑contained and not tied to external technical standards:

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

He noted there was no legal requirement that this dishwasher powder be sold in a CRC container at all. The claimant sought to argue that, once a CRC was fitted, consumers were entitled to expect it to perform in accordance with the British Standard (or with the design standard to which it had been manufactured), effectively importing that standard into the notion of public expectation.

Laws LJ rejected this. He held that the claimant’s argument would effectively impose on producers a warranty that products comply with their design standards, enforceable by all users regardless of contractual relationships. That, he stated, would require a “radical rewriting” of the 1987 Act, which the statute did not support.

He identified the proper level of public expectation:

“What, on the facts here, were ‘persons generally entitled to expect’ of the safety features of this cap and bottle? In my judgment they were entitled to expect that the bottle would be more difficult to open than if it had an ordinary screwtop.”

As the bottle in fact was more difficult to open than an ordinary screwtop, even though it fell short of the British Standard torque level, he concluded:

“There was, in my judgment, no breach of the 1987 Act.”

Causation and factual findings

In light of his conclusion on statutory defect, Laws LJ dealt briefly with causation, noting that if there was no breach of the Act it was immaterial whether the torque shortfall causally contributed to C’s injury.

He reviewed the appellants’ challenge to the trial judge’s reconstruction of events, acknowledging the ergonomic difficulties but finding that the scenario was not impossible. The trial judge had accepted Mrs P as a credible witness, only adjusting her account as to the precise position of the bottle. The Court of Appeal held it was not in a position to overturn those findings:

“In the result, while the judge’s conclusions as to the way this accident happened are certainly surprising, I cannot say he was not entitled to reach them.”

Liability of Mrs P and cross‑appeal

Because the Court of Appeal upheld the trial judge’s acceptance of Mrs P’s evidence and his conclusion that she was not negligent, and because the claims against Tesco and the manufacturer failed, there was no basis to disturb the exoneration of Mrs P. Laws LJ described the result as “ironic” and “unfortunate” for C, but concluded that there was no good case against any defendant on the legal tests properly applied.

The appeals by Tesco and the bottle manufacturer were therefore allowed, and the cross‑appeal seeking to challenge Mrs P’s exoneration was dismissed.

Implications

This decision clarifies that, under the Consumer Protection Act 1987, the concept of “defect” is governed by what persons generally are entitled to expect, not by automatic reference to technical or design standards such as British Standards, unless those standards are themselves brought within public expectation through marketing, labelling or other circumstances.

Producers who voluntarily add safety features not legally required, such as CRCs for products that do not legally require them, will not automatically incur strict liability simply because those features fail to achieve their internal design or certification benchmarks. The relevant question remains the overall level of safety the public is entitled to expect in context (here, that the CRC make the bottle harder to open than a normal screwtop).

The case also illustrates the limits of common law negligence in product liability where unusual factual circumstances, combined with reasonable parental supervision, make the injury as it occurred insufficiently foreseeable, even where a product falls short of an internal or industry standard. Finally, it underlines the appellate court’s reluctance to disturb carefully reasoned first‑instance factual findings, especially about witness credibility and detailed reconstructions of how accidents occur.

Verdict: The Court of Appeal allowed the appeals of Tesco Stores Limited and the bottle manufacturer, holding there was no defect under the Consumer Protection Act 1987 and no common law negligence, and dismissed the cross‑appeal against the finding that the child’s mother was not negligent.

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