UK: Product Liability Directive interpreted by English Court of Appeal

The role of safety standards in determining the level of safety a person is "entitled to expect" under the Product Liability Directive

Pollard v Tesco Stores Ltd and Others¹

On 12 April 2006 the English Court of Appeal overturned a decision of the Brighton County Court finding the manufacturer and own-brander of a dishwasher powder bottle liable for personal injuries caused to a child aged thirteen months, who had been able to remove the bottle's "child resistant closure" ("CRC") safety cap and consume some of the contents of the bottle. The judgment gives some hints as to the relevance of regulatory safety standards to the test of whether a product is defective under the Consumer Protection Act 1987 (the "CPA")² and, in particular, to the consideration of the safety that a person is entitled to expect.

The claimant had brought claims in negligence and under the CPA against Tesco Stores Limited, who had sold the own-branded dishwasher powder to the claimant's mother, and Robert McBride Limited, who had manufactured the bottle for Tesco. Both defendants accepted that they were producers for the purposes of the CPA. In order to protect his position, the claimant also sued his mother in negligence. Although there was some dispute at first instance as to how the claimant had been able to access the bottle, and whether the bottle had been put out of the claimant's reach with the cap properly fastened, the District Judge accepted the claimant's mother's version of events and found that she had not been negligent.

There was a British Standard (BS:EN 28317) which applied to the CRC design. Compliance with the standard was not a legal requirement for the product. However, a certificate had been issued in respect of the bottle in question. The certificate stipulated that a minimum torque of 33 in/lb should be required to unscrew the cap without squeezing.³ It was common ground between the parties' experts that a much lower torque would in fact open the CRC, although that torque was nevertheless higher than the torque needed to open a bottle without a CRC. Thus, the dishwasher powder bottle was easier to open (without squeezing) than it should have been, but still had what the Court of Appeal called some "child resistance" effect.

District Judge Simpkiss in the Brighton County Court held the defendants liable under the CPA on the basis that, since the defendants had elected to fit a CRC, the consumer was entitled to expect and would expect the CRC to function at least up to the standard usually applied to CRCs. He said that, while consumers have little or no knowledge of the actual standards, what they expect is that there are standards which are set by the proper authorities and that these standards are applied.

The judge rejected the producers' argument that the fact the CRC was not a legal necessity should be taken into account in considering whether the product was defective. He said that consumers could not be taken to know when a CRC is required, but when one is fitted consumers are entitled to expect that it is up to the standard required. He reasoned that the possibility that CRCs might be fitted as a marketing feature emphasised the public interest and importance that the standard is appropriate to avoid creating a false sense of security.

The judge also held that by fitting the bottle with a CRC and marketing it as such, the producers represented that the CRC satisfied applicable safety standards. The fact that it failed to do so and that there was no quality control system in place to check whether it satisfied the standards constituted a breach of duty.

Laws LJ, giving the judgment of the Court of Appeal, briefly dismissed the trial judge's findings on liability in negligence on the basis that the claimant's injury was not foreseeable to the producers, since it could be expected that a child's parents would take steps in the home to prevent the claimant from getting access to the bottle.

The Court then went on to consider the claim under the CPA. The claimant had argued that the shortfall in the torque required to unscrew the CRC compared to the torque stipulated by the British Standard certificate constituted a defect within the meaning of the CPA. The claimant had put this argument in two different ways.

At first it had argued that the public were entitled to expect that a product would function in accordance with safety standards imposed by relevant public authorities. The Court of Appeal rejected this approach, determining that there was no reference to the British Standard on the bottle, and no reason to suppose that members of the public would even have appreciated that any public authority had laid down safety standards.

The claimant therefore refined its submission and argued that the public were entitled to expect a product to function to the full extent of the design standard to which it was manufactured. The Court also rejected this argument, saying that it entailed a radical rewriting of the CPA to create a warranty in favour of consumers from producers that the products met their design standards in every case, even though consumers would unlikely have any idea as to what safety standards the product they were buying had been designed.

Instead, the Court held that the public were entitled to expect only that the CRC would be more difficult to open than an ordinary screw top. Because the CRC in this case was more difficult to open than an ordinary screw top, albeit less difficult than a British Standard compliant CRC, it was not defective under the CPA.

The potential relevance of regulatory safety standards to the test of defectiveness under the CPA has long been the subject of academic debate. However, the debate has tended to focus on whether the defendant may raise compliance with the standards in arguing that the public were not entitled to expect a higher level of safety. This case is unusual in that it was the claimant who raised the standards in seeking to argue that failure to live up to them automatically rendered a product defective.

The reasoning of the Court of Appeal that the public would not have known about the precise standards applicable appears wrongly to neglect the question of what the public are entitled to expect and instead focus on what were the public's actual expectations. It is by reference to this latter test that the Court rejected the relevance of the British Standard as one of all the circumstances to be considered when assessing the defectiveness of a product. However, it is notable that on the facts of this case the CRC was not a regulatory requirement and, therefore, failure to comply with the British Standard was not a breach of the regulatory regime. It would perhaps have made more sense, having regard to the wording of the CPA, for the Court to reason that the public were not entitled to expect compliance with the British Standard for this reason, rather than because the standards were not part of the actual public expectation in relation to the product. In any event, it will be interesting to see how the Court of Appeal's reasoning in Pollard influences future English judicial approach to the important, and still unanswered, question of the relationship between compliance with safety standards and liability under the CPA.

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