• In the case of Pollard v Tesco Stores Ltd [2006] E.W.C.A. Civ 393, it was held that when deciding whether a product is defective under the Consumer Protection Act 1987 s3(1), the correct test is whether in all the circumstances it fails to meet the standard of safety that the public is generally entitled to expect at the time it is introduced to the market.

Facts of the Case

  • C’s mother bought an own-brand bottle of dishwater powder from D.
  • The dishwater powder was sealed with a child-resistant closure cap. A British Standard certificate had been issued in relation to this cap design.
  • While C’s mother was occupied with a phone call, C (a boy of 13 months) went out of sight into the kitchen for at most 2 minutes.
  • C’s mother found C in the kitchen holding the bottle to his lips. C suffered injuries from ingesting the powder.
  • C sued D, alleging that C should not have been able to remove the cap under his own strength. D alleged that C’s mother had failed to properly secure the cap.
  • At first instance, the judge held that C was entitled to expect the cap to function at least up to the standard usually applied, and that the cap was defective.
  • D appealed against, arguing that the public was only entitled to expect that the cap would be more difficult to open than a standard one, not that it would be impossible for children to open it entirely.

Issues

  • Was the cap so easily opened as to be ‘defective’ under the Consumer Protection Act 1987 s3(1), thereby making D1 in breach of a statutory duty?

Held by the Court of Appeal (Civil Division)

  • Finding for D, that the test as to whether a product was defective was what the public generally were entitled to expect.
  • In this case, the public were generally entitled to expect that the bottle would be more difficult to open than if it had an ordinary screw top. Anything more specific than that would create legal complications and prevent a workable, universal standard.
  • The bottle was more difficult to open than an ordinary screw top. This meant that there was no breach of the 1987 Act.

Lord Justice Laws

  • D, having elected to fit this cap to this bottle, must accept the standard that consumers are entitled to expect the cap to function up to the standard usually applied. The consumer has little or no knowledge of the actual standards (the relevant certificates typically being highly confidential). What they expect is that there are standards which are set by proper authorities and applied properly.
  • The meaning of ‘defect’ in the 1987 Act is not provided by cross-reference to other provisions which impose precise objective requirements. The test is only ‘what persons generally are entitled to expect.’
  • “If C’s counsel is right, it means that every producer of a product whose use causes injury effectively warrants to the public that the product fulfils its design standards. Now, the producer may have no contract with any member of the public, as here, D2 did not. Members of the public-purchasers like C’s mother-are unlikely to have the faintest idea as to what safety standard the product they are buying has been designed, if it has been designed to any. In my judgment, C’s 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” [17].
  • The public were entitled to expect that the cap would be more difficult to open compared to an ordinary screw top. That was true in this case, although not as difficult as it would have been if the British Standard torque measure had been complied with. This means that there was no breach of the 1987 Act.

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