A baby, 13 months old at the time, was injured when he swallowed dishwasher powder from a plastic bottle. The bottle had a child resistant closure cap.
At first instance the Judge held that the child resistant cap should be up to British Standard Certificate Standards and the fact it fell short of the torque measure for these standards showed a breach of the Consumer Protection Act.
The Court of Appeal overturned that.
They said the test as to whether there was a defect under section 3 of the Consumer Protection Act 1987 was what people would generally be entitled to expect. In this case, a consumer is generally entitled to expect – as here – that a bottle of dishwasher powder that had a child resistant closure cap would be more difficult to open than if it had an ordinary screw top and, as that was the case there was no breach of the Act.
The Court of Appeal said anything more specific as a test of public expectations – for example, involving BS standards – ran into difficulties.
Tesco Stores Ltd & Anor (Appellants) -v- Connor Frederick Pollard (A minor by his litigation friend W Davey) (Respondent) & Lorraine Ann Pollard (Cross-Appellant) (2006).  EWCA Civ 393, CA (Civ Div) (Laws LJ, Wilson LJ, Sir Paul Kennedy) 12 April 2006
Upper limb disorder case considered
There has been a lot of comment about this RSI case that was won on breaches of the DSE regulations. We reported the facts in the last Law Bulletin.
A few of the important findings were:
- That Regulation 2 of the DSE regulations 1992 does not, as the defendant argued, relate only to the work station and its immediate working environment but “all the known health problems that may be associated with display screen work”.
That the employer has a duty to take the lead to intervene with work practices such as failures to take a break even when an experienced intelligent employee should realise there is a need for breaks in the day to vary the routine and lessen the risk of injuries.
Lord Justice Ward found an attempt to defend the claim on the basis that the non-specific RSI injury was psychological was “distasteful” There are four paragraphs (68 to 72) in which he debates whether the word distasteful is appropriate and finally concludes a better term would be “unfortunate” but the point remains he was critical of the defendant’s conduct in running such an argument.
He was critical that they regarded a risk assessment for the work station as “an unfortunate waste of time”.
The defendants had made a bare denial of the case. The Judge said they should have pleaded a positive case before trial. Had they advanced a positive case that the medical records had an inconsistency that was fatal to the claimant’s argument, then the claimant’s solicitors would have had a chance to consider the accuracy of the records and, if necessary, formally prove them at trial.
Denton Hall Legal Services & Ors -v- Fifield  EWCA Civ 169