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

This is an appeal, brought with permission granted by May and Gage LJJ on 27 October 2005, against the decision of His Honour Judge Simpkiss given in the Brighton County Court on 18 May 2005 when he entered judgment against the first and second defendant in the claimant’s action for damages for personal injury. The incident giving rise to the claim took place on 20 August 1997 when the claimant was a little boy of nearly 13 months. I will refer to him by his Christian name, Connor. What happened in outline was that C ingested dishwasher powder from a plastic bottle and in consequence became very seriously ill. The bottle of dishwasher powder had been bought from Tesco, and Tesco Stores Limited are the first defendant. The powder was Tesco’s own brand but the bottle had been manufactured by the second defendant. The factual case against the first and second defendants was that the neck of the bottle and the cap were defective so that the cap was easier to detach than it should have been; and that C managed to detach it and so ingest some of the contents. On 19 December 2003 the first and second defendants joined Connor’s mother Mrs P as a Part 20 defendant. They claimed that she had left the bottle in a place where C could see and reach it, and had left the cap off or not properly screwed up. Mrs P was thereupon joined as a third defendant to the claim to protect Connor’s position should the judge find that she had negligently caused his injuries.

As I have indicated, the judge found the first and second defendants liable. I should say that he was dealing with the issue of liability only, there having been an order for a split trial. He acquitted Mrs P of any negligence. In addition to the first and second defendants’ appeal, there is before the court a Respondent’s Notice put in on behalf of Connor, by which, in the event that the first and second defendants’ appeal succeeds, permission to appeal is sought in order to challenge the judge’s finding exonerating Mrs P.

There are some facts relating to the plastic bottle, and in particular the cap that was fitted, which are not the subject of any substantial dispute. The cap was a ‘CRC’, that is to say “child resistant closure”. It was designed and made by a company called Cope Allman Limited, who are not a party to the action. It was what may be called a “squeeze and turn” cap. To open the bottle, the cap is squeezed and turned, so that it distorts into an oval shape, allowing two lugs on the cap to ride over two corresponding lugs on the neck of the bottle. The external diameter of the cap was about 49 mm. The bottle was 233 mm high, 145 mm broad and 65 mm deep, and had an integral handle. There was evidence before the judge of the torque required to open the bottle without squeezing. Mr Scaife, who the judge regarded as the more reliable expert witness, said that the torque so required was 18 in/lb when the cap was flat and 10 when lifted as far as it could go against the thread. A British Standard certificate had been issued in relation to this cap design, after appropriate tests had been carried out which Mr Norman of counsel for the appellants described to us. The certificate gave 33 in/lb as the proper minimum torque required to unscrew the cap without squeezing. Thus the bottle was easier to open (without squeezing) than it should have been, but still had, so to speak, some “child resistance” effect.

I should next make some observations about the environment, so to speak, in which the accident happened. It was at the Ps’ home. The dishwasher was in the kitchen, as was the washing machine. The dishwasher powder was ordinarily kept in a cupboard near the dishwasher with a child lock. Mrs P’s evidence was that she filled the receptacle in the dishwasher with powder from the bottle and closed the dishwasher door (judgment, paragraph 51). She said that she put the lid of the bottle back on, screwed it down, and put the bottle on the worktop above the dishwasher (judgment, paragraph 52). She said she placed it “out of reach” (paragraph 52). She said that she did not put it into the cupboard because there was washing on the floor.

After this there was a telephone call from Mrs P’s sister. The phone is in the lounge which I think leads into the kitchen. While Mrs P and her sister were speaking Cat first played in the lounge, but shortly Mrs P noticed he was no longer in the room. She broke off the phone call and went into the kitchen. The judge found (judgment, paragraph 55) that C was out of sight in the kitchen for at least two minutes. When Mrs P went through to the kitchen she ‘saw C sitting in the middle of the bundle of washing in front of the hobs with the dishwasher powder container to his lips and his head right back’. In her oral evidence she said that ‘the cap was lying next to him. There was powder in his mouth and small amounts of powder on his hands.’ (judgment, paragraph 53).

There was some important scientific evidence going to the question whether it was in the realm of practical possibility for C to have opened the bottle, if it was placed where his mother said it was and closed as she said she had closed it. Connor’s “torque” strength at the time of the accident was according to a joint statement of the two ergonomic experts, between 6.5 and 7.8 in/lbs. I have already given the figures spoken to by Mr Scaife for the torque required to open the bottle without squeezing: 10 or 18. However it also seems clear from Mr Scaife’s evidence that it was impossible to ascertain how much force a young child would require to open the cap – there are too many uncertainties about how such a child might go about it.

Connor’s “grip length” was considerably less than the diameter of the cap (judgment, paragraph 64(b)). He would have been some 72 ½ cm tall (maximum) (judgment, paragraph 68), and his “overhead grip reach”, on average figures, would have been something in the region of 81.75 cm (paragraph 69). The work surface was some 90 cm high. To reach an object at the front of the work surface C would had to have been stood on something with at least 9 cm compressed height, and if the object were, say, 8 inches back from the edge of the work surface, he would have needed another 20 cm of reach (judgment, paragraph 69).

The judge concluded (judgment, paragraph 71) “what most probably happened” was that C reached the bottle by standing on a pile of washing, and – though this was speculative – he may have knocked it sideways and grabbed the handle, or alternatively knocked it to the floor. He found that Mrs P may have placed the bottle nearer to the edge of the work surface than she recalled in her evidence.

The judge then turned to the question how, or whether, C could actually have opened the bottle. He was insistent (paragraph 73), with respect no doubt rightly, that it was an error to suppose a child of this age would have attempted to open a CRC as an adult would. It is clear that the judge held that C must have squeezed the cap, at any rate to some extent. At paragraph 32 he had said:

“It is highly unlikely that a child of 13 months would or could have turned the CRC in either of the ways used by the expert. There was bound to be some squeezing, pulling, twisting and pushing.”

And at paragraph 73:

“It is wholly unrealistic to expect a child of Connor’s age to replicate the tests used by either expert and not to apply any squeezing at all. Mr Scaife accepted that there would have been some squeezing and that this would have reduced his torque figures. C would also be likely to hold the container with his feet or knees and could easily then have applied both hands. Mr Norman’s analytical approach is in my judgment both artificial and unrealistic.”

Then at paragraph 74 the judge concluded:

“This CRC was defective for a number of reasons. As a result there was much more play between the cap and screw and very much less torque was required to open it than the specification, even if there was no squeezing applied. I am satisfied that the defective CRC was causative of C obtaining access to the contents of the container.”

The judge then turned to the case against Mrs P. She had been cross-examined about inconsistencies and omissions in her evidence but the judge (paragraph 75) found her to be “an impressive and credible witness”. He held that she did put the bottle on the work surface, though probably nearer to the edge than she said. He also found that she “put the cap on so that it clicked beyond the lugs”. The judge held that Mrs P was not negligent in allowing C to disappear into the kitchen for as long as he did (paragraph 80). And so Mrs P was exonerated.

The judge held the first and second defendants liable on the basis of two causes of action pleaded against them: negligence at common law, and breach of statutory duty. The statute relied on was the Consumer Protection Act 1987. Sections 2 and 3 in part provide:

“2(1) Subject to the following provisions of this Part, where any damage is caused wholly or in part by a defect in a product, every person to whom sub-section 2(1) below applies shall be liable for the damage.

2(2) This sub-section applies to:

(a)

the producer of the product;

(b)

any person who, by putting his name on the product or using a trademark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;

(c)

…

3(1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes ‘safety’, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injuries.

3(2) In determining for the purposes of sub-section (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including:

(a)

the manner in which, and purposes for which, the product has been marketed, its get up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;

(b)

what might reasonably be expected to be done with or in relation to the product;

(c)

the time when the product was supplied by its producer to another;

and nothing in this section shall require a defect to be inferred from the fact alone that a safety of the product which is supplied after that time is greater than the safety of the product in question.”

It was common ground and the judge accepted that there was no legal requirement, whether arising for example from the Chemical (Hazard Information and Packaging for Supply) Regulations 1994 or from any other provision, that this dishwasher powder should be packaged and sold in a container equipped with a CRC. It was submitted to the judge that in those circumstances there can have been no actionable breach of the Consumer Protection Act 1987 notwithstanding that the torque required to open the bottle was less than that specified in the British Standard certificate. The judge rejected that argument in four paragraphs which I should set out:

“40.

In my judgment, having elected to fit a CRC to this bottle the consumer was entitled to expect and would expect the CRC to function at least up to the standard usually to be applied to CRCs. The consumer has little or no knowledge of the actual standards (indeed the relevant certificates are usually highly confidential documents). What he or she expects is that there are standards which are set by the proper authorities and that these standards are applied.

41.

It was argued on behalf of the defendants that this CRC was not a legal necessity and that this should be taken into account in considering whether the product was defective. I cannot agree with that suggestion. The consumer is not to be taken to know when a CRC is required but when one is fitted is entitled to expect that it is up to the standard required of a package fitted with a CRC. The possibility that CRCs might be fitted as a marketing feature strongly emphasises the public interest and importance of ensuring that the standard is appropriate since otherwise a false sense of security is created.

42.

This product was marketed with a CRC which Mr Garnett described as “a safety feature” and in my judgment this gave rise to an expectation that it would at least have the qualities to be expected of a standard CRC. The contents were described by Tesco as being borderline corrosive/irritant and it is probable that the CRC was put on the container because of this. At any rate the contents of the powder with the formulation at the date of the accident were such that the potential for damage to a small child if he or she obtained unsupervised access to it was considerable. It was clearly foreseeable to both defendants that if the CRC was defective a child might suffer the kind of injuries suffered by C by gaining access to the contents. It was also foreseeable that a consumer would place some reliance on the effectiveness of the CRC.

43.

This is a clear case of breach of duty. Having fitted a CRC on this container and then marketed the dishwasher powder with the CRC the defendants have plainly represented that the item has a CRC which satisfies any standards that are applicable to CRCs. The evidence of the packaging experts is that the CRC package fell well short of the standard required for a CRC. I am also satisfied that there was no Quality Control in place with regard to the efficacy of the CRC and whether it met the specifications. Had there been then it should easily have been established that the standard had not been met and that the CRC did not perform to its intended specification or anything approaching it.”

It is convenient to state at this stage that in my judgment this case is one of breach of statutory duty or nothing. One aspect of the factually eccentric scenario which, having exonerated Mrs P, the judge accepted is that it was surely not reasonably foreseeable that this injury would happen as he found it did. Mr Briden for C submitted, however, that it must have been foreseeable that a child, if he got access to the contents of this bottle, would be liable to suffer injury; and it matters not that the precise mechanics by which he might obtain such access were not themselves foreseeable. I accept of course that the law does not systematically require, for a common law duty of care to be established, that the precise chain of events culminating in the damage suffered by the claimant has to be foreseeable step by step. But in a case like this any calculation of foreseeability must surely assume that the child’s parents will in the home take steps to prevent his having access to the bottle. Elementarily every case must be judged by the colour of its own facts and I do not think, in this case, that foreseeability can be got out of the fact that it proved possible for C to open the bottle coupled with the fact that the British Standard certificate was not met.

The case therefore turns on whether there was a breach of the 1987 Act which was causative of Connor’s injuries. The critical provision is section 3(1):

“There is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect …”

Mr Briden’s case has to be that the shortfall in the torque required to unscrew the cap from the bottle, from the figure in the standard set by the British Standard certificate of 33 in/lb to 10 or 18, constitutes a defect within the meaning of this sub-section.

It will at once be observed that the meaning of “defect” in the sub-section is not given, or informed, by any cross-reference to any other provisions (such as the British Standard regime) which impose precise objective requirements which have to be met for safety purposes. The test is, and is only, “what persons generally are entitled to expect”. Certainly, Section 2(3) requires all the circumstances to be taken into account, including the particular matters set out at (a) – (c). Mr Briden submitted that in the present case, and given evidence to which he points to the effect that a CRC was advisedly put onto this bottle design for safety reasons, the terms of Section 3 suffice to import the British Standard torque measure into the content of general public expectation. On the facts, I understand him to say that the dishwasher product in the bottle, being an “irritant at the severe end of the spectrum” fell just short of giving rise to a mandatory requirement for a CRC under provisions which I need not cite.

In developing this argument Mr Briden at first submitted that the public were entitled to expect that the product in question would function in accordance with whatever safety standard might in the particular case be imposed by any relevant public authority. I apprehend that he appreciated this was a step too far, since there is no trace of any reference to the British Standard on the bottle, packaging or get up of this product, and no reason to suppose that members of the public such as Mrs P would have appreciated that any public authority had pronounced upon the matter. Accordingly Mr Briden refined his submission, and ultimately his argument was that under the statute the public are entitled to expect that the product will function to the full extent of the design standard to which it was manufactured. In the present case that meant the same as compliance with the British Standard torque measure.

If Mr Briden is right, it means that every producer of a product whose use causes injury effectively warrants to the general public that the product fulfils its design standards. Now, the producer may have no contract with any member of the public, as here, the appellants did not. Members of the public – purchasers like Mrs P – are unlikely to have the faintest idea to what safety standard the product they are buying has been designed, if it has been designed to any. In my judgment Mr Briden’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.

What, on the facts here, were “persons generally entitled to expect” of the safety features of this cap and bottle? In my judgment they were entitled to expect that the bottle would be more difficult to open than if it had an ordinary screwtop. Anything more specific, as a test of public expectation, runs into the difficulties which I have just described. Here, thebottle was more difficult to open than an ordinary screwtop, though not as difficult as it would have been if the British Standard torque measure had been complied with. There was, in my judgment, no breach of the 1987 Act.

In those circumstances I can deal with the question of causation shortly, since if my Lords agree upon the conclusion I have reached concerning the 1987 Act, it matters not whether a shortfall in the cap’s torque was a contributory cause of Connor’s injuries.

Mr Norman submitted that the factual scenario as to how C got hold of and opened the bottle which the judge accepted on Mrs P’s evidence was, in truth, an impossible one. There is no doubt there were very formidable difficulties in the way of it. Chad a long way to stretch to get the bottle off the work surface. Mr Norman says that in truth he could not have done it on the reconstructed measurements which he described. As it was, the judge modified his wholesale acceptance of Mrs P’s evidence by finding (paragraph 75) that she had put the bottle nearer to the edge of the work surface than she said. Next, C surely cannot have unscrewed the cap with one hand; the length or reach of his grip was less than the diameter of the cap. But, if he unscrewed it with both hands, what oppositional force was there to hold the bottle steady? He must have somehow gripped the bottle between his legs.

The judge did not pretend to find exactly what had happened. Perhaps Connor, standing on a large pile of washing, was able to steady himself by the rail on the side of the dishwasher, but that is speculation. So, however, is much else, and Mr Norman’s inch by inch reconstruction of the ergonomic possibilities seems to me to have an air of unreality. I am not able to find on the evidence as a whole, as we are able to perceive it in this court, that the scenario envisaged by the judge was an impossible one. It is of the first importance that he accepted the evidence of Mrs P as a credible and impressive witness. The appellants case on the facts would require us to hold that her evidence should have been rejected root and branch by the judge. It is true that there were omissions and contradictions in previous statements made by her and that, as I have said, the judge did not accept her precise evidence as to where she put the bottle. However in my judgment we are in no position to hold that the judge, who obviously will have formed his own impression during a trial of some length and substance, was not in the end entitled to accept Mrs P’s account. We could only do that, as it seems to me, if her evidence implied a state of affairs which simply could not in reason be sustained.

In the result, while the judge’s conclusions as to the way this accident happened are certainly surprising, I cannot say he was not entitled to reach them.

The result is ironic, and from Connor’s point of view, certainly unfortunate. Because the judge was entitled to accept his mother’s evidence, there is no case of negligence against her. Equally, however, because there is no common law negligence claim here as I see the matter, and the claim under the 1987 Act simply does not run, there is no good case against the appellants either.

I would allow these appeals, and dismiss the cross-appeal.

I agree.

I also agree.