When is a Product Defective?

Over the years, consumer law has been tightened up and among the rights consumers have under the Consumer Protection Act 1987 (CPA) is the right to be protected from the effects of using a defective product.

Normally, determining whether a product is defective or not is fairly straightforward, but a recent case involving Tesco turned on the definition of what ‘defective’ means in a practical sense.

The case was brought by the parents of a child who had been injured by ingesting dishwasher powder which they had bought at Tesco. The dishwasher powder had been fitted with a child-resistant cap, but despite this their 13-month-old child was able to remove the cap.

The parents claimed that the cap did not meet the British Standard for such items, being inadequate in a number of ways. Accordingly, the injury to the child was a foreseeable result of the inadequacies. The lower court held Tesco liable for the child’s injury, despite their attempt (which was rejected by the court) to share the blame with the child’s mother on the ground that she had left the bottle where the child could gain access to it.

Tesco appealed the decision. Firstly, the Court of Appeal had to decide whether the injury was a foreseeable result of the cap not being to the appropriate standard. This was problematic, as it was reasonable to assume that the parents would take sufficient steps to make sure that the child could not get access to toxic substances. The fact that the cap was easier to remove than one complying with the British Standard did not make the injury reasonably foreseeable. If that were the case then Tesco’s liability would depend on whether it had breached its statutory duty under the CPA.

The Court of Appeal ruled in Tesco’s favour on the basis that the cap was more difficult to remove than a standard screw cap and all that could be reasonably expected was that it would be more difficult to open than a screw cap.

To obtain compensation in cases such as this, it is necessary to show that the injury was foreseeable and occurred as a result of a breach of the common-law duty of care, or arose because of a breach of a specific statutory duty. Simply because a product is not as good as it might be does not make it defective.