Tesco Court of Appeal decision

In a recent Court of Appeal decision it was held that the manufacturer of dishwasher powder was not liable for the injuries of a 13 month old boy when he was able to ingest dishwasher powder because of a faulty cap.

The little boy was able to remove the cap from the bottle and consume some of the powder. The trial judge found that the boy's injuries were caused by a defect in the neck and cap of the bottle. The bottle was designed to have a child resistant closure but the defect resulted in the cap being easier to remove than it should have been, which in turn enabled the child to consume the dishwasher powder. Unfortunately, this decision was reversed by the Court of Appeal.

The claim was brought under the Consumer Protection Act 1987. A product, under this Act, is considered defective if it is not as persons generally are entitled to expect. The trial judge in reaching his decision concluded that the expectation of persons generally would require the cap to meet the British Standards of 33 in/lb. The cap from the bottle of dishwasher powder should have been two or three times more difficult to remove than it was in order to meet this standard. If the manufacturers had met this standard, it would have been beyond the little boy's ability to remove the cap.

However, the Court of Appeal in determining what persons generally are entitled to expect placed considerable weight on what the British public would be aware of. It was decided that most people would be unaware that a British Standard existed and even fewer would know what that standard was. Accordingly, the British public could expect that the cap would be more difficult to unscrew than an ordinary top and the court decided that the dishwasher cap met this requirement.

This decision has given further assistance to manufacturers of potentially defective products when defending claims for personal injury brought under the Consumer Protection Act 1987. This case suggests that if the British public are unaware of safety precautions, then they are not considered to be entitled to expect them and a claim under the Act would fail. It remains to be seen how far the courts will apply this approach