Tesco Stores Ltd & Anor v CFP (A Minor) & Anor

Under section 3(1) of the Consumer Protection Act 1987, a product is defective only where its safety is less than persons generally are entitled to expect. That test is objective and requires all the circumstances to be considered. It does not automatically incorporate a British Standard or the producer’s design specification, particularly where the standard is not disclosed to consumers. Fitting a child-resistant closure may create an expectation that the container is harder to open than an ordinary screw-top. It does not necessarily create an entitlement to expect full compliance with the technical standard for such closures. A common-law negligence claim may fail where the precise circumstances of the accident were not reasonably foreseeable, even though injury from access to the product would generally have been foreseeable.

A child suffered serious injury after ingesting dishwasher powder from a Tesco own-brand container. The container had a child-resistant squeeze-and-turn closure manufactured by the second defendant, but the closure required less torque to open than the relevant British Standard specified.

The Brighton County Court found both defendants liable in negligence and for breach of statutory duty under the Consumer Protection Act 1987. It found the child’s mother not negligent, while accepting that the child had obtained and opened the container in the manner alleged. The defendants appealed on liability. The child filed a Respondent’s Notice seeking permission to challenge the finding exonerating his mother if the defendants succeeded. The central issues were foreseeability, the factual findings, and whether the shortfall from the British Standard constituted a statutory defect.

The defendants’ appeals were allowed and the cross-appeal was dismissed. The factual findings were upheld, but they did not establish liability.

1. Common-law negligence. The claim was, in substance, one under the statute. Although the law does not require every step in the precise chain of events to be foreseeable, foreseeability had to be assessed against the circumstances found. It was not reasonably foreseeable that the injury would occur through the unusual sequence accepted by the judge, particularly where parents would ordinarily be expected to take steps to prevent a child accessing the container.
2. Statutory defect. Section 3(1) of the Consumer Protection Act 1987 provides the only applicable test: whether the product’s safety was less than persons generally were entitled to expect. The test was not informed by an automatic cross-reference to the British Standard regime. The relevant circumstances included the marketed safety feature and the nature of the product, but the statute did not amount to a contractual warranty that a product would perform to its design standard.
3. Persons generally were entitled to expect that a container marketed with a child-resistant closure would be more difficult to open than an ordinary screw-top. They were not, on these facts, entitled to expect that it would meet the undisclosed British Standard torque measure. Since the container was more difficult to open than an ordinary screw-top, no defect within section 3(1) was established.
4. The judge’s acceptance of the mother’s evidence, despite the surprising and partly speculative mechanics of the accident, was open to him. The appellate court could not reject that finding merely because the reconstruction presented formidable practical difficulties.

There was therefore no good claim in negligence or under the 1987 Act against the defendants. The appeals were allowed and the cross-appeal dismissed.

• Court of Appeal (Civil Division): appeals from the Brighton County Court were allowed; the cross-appeal was dismissed.
• Brighton County Court: on 18 May 2005, His Honour Judge Simpkiss entered judgment against the first and second defendants on liability, while finding the mother not negligent.