Pollard v Tesco Stores Ltd [2006] EWCA Civ 393
Facts
A young child was injured after ingesting dishwasher powder from a bottle bought at Tesco. The bottle had a child-resistant closure. Evidence raised questions about the force needed to open it and whether it met the relevant design standard. The claimant argued that the cap should have prevented him opening the bottle. The defendants disputed defect and the circumstances in which the cap had been secured. At trial the safety claim succeeded, partly through treating the design standard as the level consumers were entitled to expect. The Court of Appeal reconsidered that approach.
Legal Issue
Was the closure defective under section 3 of the Consumer Protection Act 1987 because it failed to achieve a design standard, despite being harder to open than an ordinary cap?
Held
The Court of Appeal held that the statutory defect claim had not been established. The question was the level of safety persons generally were entitled to expect, considering all the circumstances. That was not identical to a contractual warranty that a product would satisfy every detail of its design specification. On the evidence in this case, the public expectation of a child-resistant closure was that it would be more difficult to open than an ordinary screw top, rather than impossible for any child to open. The closure met that comparative expectation. A departure from the identified torque standard therefore did not itself prove a defect. The decision was about applying the statutory test to this product and evidence, not declaring technical standards irrelevant.
⭐ Legal Principle
A product’s defectiveness under section 3 of the Consumer Protection Act 1987 depends on the safety persons generally are entitled to expect in all the circumstances. Failure to meet a design standard does not automatically establish defect, although standards and presentation may form relevant evidence.
Significance
Pollard distinguishes statutory product liability from a guarantee of flawless performance or compliance with every technical specification. It also illustrates the importance of separating the trial judge’s reasoning from the appellate decision. The case should be compared with other section 3 authorities by examining product presentation, warnings, use and the relevant safety expectations. It provides no general immunity for child-resistant packaging: different evidence about the product, its closure or the circumstances may support a different defect assessment.
Common exam questions about this case
Why was non-compliance with the design standard insufficient by itself?
The statutory question concerned public entitlement to safety in all the circumstances, not an automatic warranty of conformity with a producer’s technical specification. The standard could be relevant evidence, but it did not replace section 3. The Court concluded that the claimant had not proved defect under that governing test.
Does child-resistant mean that no child can open the container?
The Court did not adopt that absolute expectation for the product and evidence before it. It assessed resistance compared with an ordinary closure. That fact-specific conclusion should not become a universal definition for every package: presentation, warnings, foreseeable use and other relevant circumstances remain part of the statutory assessment.
Why is Pollard a Tort case rather than a contractual warranty case?
The principal issue was liability for a defective product under the Consumer Protection Act, including a claim by an injured child who had not bought the product. The Court expressly distinguished that statutory safety test from imposing a contractual warranty about design standards on the producer for every member of the public.