CONSUMER

Negligence - bottles - consumer protection - defects - foreseeability - child-resistant closure caps - defective caps - dishwasher powder - meaning of defect - expectation

Tesco Stores Ltd & Anor (appellants) v Connor Frederick Pollard (a minor by his litigation friend W Davey) (respondent) & Lorraine Ann Pollard (cross-appellant: CA (Civ Div) (Lords Justice Laws, Wilson, Sir Paul Kennedy): 12 April 2006



The appellants (T) appealed against a decision granting judgment in favour of the respondent (C) in a personal injury action. C, who was 13 months old at the time, was injured when he ingested dishwasher powder from a plastic bottle. The powder had been purchased from the first appellant, but the second appellant had manufactured the bottle.


The claim against T was that the bottle and cap had been defective so that the cap was easier to detach than it should have been. The cap was a child-resistant closure (CRC). T joined C's mother (P) to the action on the basis of their claim 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.


The judge found T liable and acquitted P of any negligence. The judge held that, having elected to fit a CRC to the bottle, the consumer was entitled to expect the cap to function at least up to the standard usually to be applied to CRCs, namely the British Standard certificate. He held that there was a defect in the cap for several reasons, in particular that there had been play between the cap and screw and much less torque was required to open it. He accordingly held T liable in negligence at common law and under the Consumer Protection Act 1987.


T argued that the judge had erred in finding it liable. In the event that the appeal was allowed, C, challenging the judge's exoneration of P, argued that it must have been foreseeable that a child would be liable to suffer injury if he got access to the contents of the bottle; under the 1987 Act, the public was entitled to expect that the product would function to the full extent of the design standard to which it was manufactured, which in this case meant the same as compliance with the British Standard torque measure.


C submitted that given that a CRC cap was advisedly put on to the bottle design for safety reasons, section 3 of the 1987 Act sufficed to import the British Standard torque measure into the content of public expectation.


John Norman (instructed by Weightmans) for the appellants; Timothy Briden (instructed by ASB Law) for the respondent.


Held, this was a case of breach of statutory duty or nothing. One aspect of the factual scenario which, having exonerated P, the judge accepted, was that it was surely not reasonably foreseeable that this injury would happen as he found it did. In a case such as this, any calculation of foreseeability had to assume that the child's parents would take steps in the home to prevent the child having access to the bottle. Every case must be judged by the colour of its own facts and, in this case, foreseeability could not 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. Accordingly, the case turned on whether there was a breach of the 1987 Act.


The test as to whether a product had a defect under the 1987 Act was what persons generally were entitled to expect. Persons were generally entitled to expect that the bottle in this case would be more difficult to open than if it had an ordinary screw-top. Anything more specific, as a test of public expectation, ran into difficulties. The bottle was more difficult to open than an ordinary screw-top, though not as difficult as it would have been if the British Standard torque measure had been complied with. Thus, there was no breach of the 1987 Act.


The judge was entitled to accept P's account of events and he was entitled to reach his conclusions as to the way the accident happened.


Appeal allowed, cross-appeal dismissed.





HEALTH


Cancer - funding - irrationality - medical treatment - pharmaceuticals - policies - primary care trusts

R (on the application of Ann Marie Rogers) (appellant) v Swindon NHS Primary Care Trust (respondent) & Secretary of State for Health (interested party): CA (Civ Div) (Master of the Rolls Sir Anthony Clarke, Lords Justice Brooke, Buxton): 12 April 2006


The appellant (R) appealed against a decision ([2006] EWHC 171 QB) refusing her application for judicial review of a decision of the respondent primary care trust (S) to reject her application for funding for treatment with a drug called Herceptin.


R had breast cancer. Her consultant had stated that she had a 25% chance of remaining free of the disease after ten years and a 57% chance of dying within that period. Trials had revealed that Herceptin would result in a considerable therapeutic benefit in certain cases of breast cancer, and R's consultant had begun to treat her with the drug, R paying for the treatment privately.


However, she was unable to pay for a full course of treatment. S had funds available to provide the drug for all patients within the eligible group, namely those who fulfilled the clinical requirements for Herceptin treatment and whose clinician had prescribed it. However, its policy was to refuse funding for Herceptin treatment save where exceptional personal or clinical circumstances could be shown. R argued that S's policy was irrational.


David Pannick QC, Ian Wise (instructed by Irwin Mitchell) for the appellant; Philip Havers QC, Matthew Barnes (instructed by Bevan Brittan) for the respondent; Alison Foster QC, Eleanor Grey (instructed by the Solicitor for the Department of Health) for the interested party.


Held, a policy of withholding assistance save in unstated exceptional circumstances would be rational in the legal sense, provided that it was possible to envisage, and the decision-maker did envisage, what such exceptional circumstances might be. If it was not possible to envisage any such circumstances, the policy would be in practice a complete refusal of assistance, and as such would be irrational because it was sought to be justified not as a complete refusal but as a policy of exceptionality (R v North West Lancashire Health Authority ex parte G [2000] 1 WLR 977 applied).


In deciding whether S's policy was rational or not, the court had to consider whether there were any relevant exceptional circumstances that could justify S granting treatment to one patient but refusing it to another within the eligible group. There was no rational basis for distinguishing between patients within the eligible group on the basis of exceptional clinical circumstances, any more than there was on the basis of personal circumstances. Once S had decided, as it had, that it would fund Herceptin for some patients and that cost was irrelevant, the only reasonable approach was to focus on the patient's clinical needs and to fund patients within the eligible group who had been properly prescribed Herceptin by their physicians. That would not open the floodgates to those suffering from breast cancer because only comparatively few satisfied the criteria needed to qualify for the eligible group.


In the circumstances, S's policy was irrational and therefore unlawful.


Appeal allowed.







IMMIGRATION


Citizenship - registration - terrorism - secretary of state's power of deprivation of British citizenship - disloyalty - disaffection

Secretary of State for the Home Department v David Hicks: CA (Civ Div) (Lords Justice Pill, Rix, Hooper): 12 April 2006


The appellant secretary of state appealed against the decision ([2005] EWHC 2818 (Admin)) declaring that the secretary of state had no power to deprive the respondent (H) of British citizenship. H was an Australian citizen who had been seized in Afghanistan and was being held at Guantanamo Bay by the US authorities. H satisfied the conditions for British citizenship by descent from his mother under section 4C of the British Nationality Act 1981 and, accordingly, applied for registration as a British citizen.


The secretary of state proposed to grant British citizenship, but at the same time to make an order depriving H of citizenship under section 40 of the 1981 Act on the grounds that H had done things seriously prejudicial to the vital interests of the UK, including receiving terrorist training with known Islamic extremists. In exercising his power to deprive H of his British citizenship under section 40, as substituted by the Nationality, Immigration and Asylum Act 2002 (section 4(1) read in conjunction with section 4(4)), the secretary of state had to satisfy the requirements of section 40(3)(a) of the 1981 Act as originally enacted in relation to anything on which he wanted to rely that had occurred before the substitution.


The judge held that under section 40(3)(a), the secretary of state could not rely on acts of disloyalty or disaffection occurring before the acquisition of citizenship. The secretary of state submitted that it was possible for a person to have shown himself to be disloyal or disaffected towards the UK by conduct committed before he became a British citizen; even if H's conduct in Afghanistan in 2000 and 2001 was not capable of being disloyal or disaffected towards the UK, the conduct could be relied on as showing that, at the moment of registration as a British citizen, H was disloyal and disaffected.


P Sales, T Eicke (instructed by the Treasury Solicitor) for the appellant; M Fordham (instructed by Bindman & Partners) for the respondent.


Held, the word 'disaffected' as well as the word 'disloyal' required an attitude of mind towards an entity to which allegiance was owed, or at least to which the person belonged or was attached. Disaffection had a different and sometimes broader meaning than disloyalty, but the word was not apt to cover, in relation to the UK, an Australian. Section 40(3)(a) of the 1981 Act, as originally enacted, did contemplate circumstances in which conduct before grant of citizenship could provide grounds for revocation of citizenship, as did its statutory predecessors. An allegiance might arise, the breach of which might constitute disloyalty or disaffection, without the person being a citizen (Joyce v DPP [1946] AC 347 considered).


In the circumstances, H's conduct in Afghanistan in 2000 and 2001 was not capable of constituting disloyalty or disaffection towards the UK, a state of which he was not a citizen, to which he owed no duty, and on which he made no claim.


On the wording of section 40(3)(a) as originally enacted, if the order for revocation was to be made contemporaneously with the grant of citizenship, and if, as found, there could be no disaffection before that moment, the conduct could not be relied on. Disaffection at the moment of decision had not been shown.


The secretary of state's proposed deprivation of citizenship would not be lawful in this case unless a fresh analysis of H's state of mind, including the right to make representations, was conducted after registration.


Appeal dismissed.





CIVIL PROCEDURE


Administration of justice - jurisdiction - magistrates' courts - closure notices - procedure for challenging notices

R (on the application of Errington) v Metropolitan Police Authority: QBD (admin) (Mr Justice Collins): 12 April 2006


The claimant (E) applied for judicial review of the decision of the defendant police authority to issue a closure notice in respect of premises that she occupied as a secure tenant.


An authorising police officer had, following an investigation of public complaints, issued a closure notice under the Anti-social Behaviour Act 2003. The notice stated that he had reasonable grounds to suspect that the premises had been used in connection with the unlawful use, production or supply of a class A controlled drug, and that use of the premises was associated with the occurrence of disorder or serious nuisance to the public.


The closure notice was not actually issued until more than three months after the date on which the police officer authorised its issue. Thereafter the police successfully applied to the magistrates' court for a closure order.


E appealed against the order, contending that the closure notice, on foot of which the order was made, had been invalid, as it was issued outside the relevant period provided for by section 1(10) of the Act, and also for stating that the authorising officer had grounds to suspect the acts that gave rise to the issuing of the notice rather than a belief that they had occurred. The magistrates' court adjourned the appeal to allow E to challenge the notice by way of judicial review.


Ramby de Mello, Jennifer Barker (instructed by Dowse & Co) for the claimant; Sarah Simcock, Gemma White (instructed by the force solicitor) for the defendant.


Held, the jurisdiction of the magistrates' court to hear applications for the making of a closure order was not dependent on the initiating notice being valid. The magistrates' court's jurisdiction to make a order depended on an application having been made under section 2 of the Act, and the existence of a notice. If the notice did not contain the necessary information, the court was likely not to continue to hear an application for a closure order until the closure notice was put in the proper form. Whether the notice issued was defective fell to be determined by the court, and it could consider any relevant material and decide what weight to put on it.


The Act required that the police officer authorising a closure notice had to have reasonable grounds for believing that the acts giving rise to the notice had taken place and not merely a suspicion, as a belief was a higher standard.


Per curiam, section 2 of the Act provided its own procedure for the issuing of closure notices and as such no separate summons had to be issued in respect of an application for a closure order; judicial review proceedings were an inappropriate method of challenging the making of a order by the magistrates' court. The appropriate procedure was for an appeal to be made to the county court as soon as possible after the order had been made, preferably within days.


Obiter, although the proceedings relating to closure orders were civil in nature, their effects, if made, were such that the magistrates' court should apply a high standard of proof, and that standard was likely to be akin to the criminal standard.


Application refused.