Product Liability I
Cases
Kirby v. Burke and Holloway.
Gavan Duffy J. [1944] I.R. 207
This appeal from the Circuit Court turns on a point of law of exceptional public importance, unquestionably fit for the decision of the final tribunal, but neither party has asked me to state a case for the Supreme Court and there is no other right of appeal.
In the Circuit Court the plaintiffs, a father and three little children, recovered damages in tort against the defendant for his negligence in manufacturing and issuing for sale a pot of jam unfit for human food, bought by the housewife for the family, and eaten by the plaintiffs to the sad mischief of their internal economy.
On 6th May, 1942, Mrs. Josephine Kirby, finding butter to be unobtainable, bought for her family from a grocer a pot of rhubarb and ginger jam; the pot was wrapped in cellophane of amber hue, and the jam had a cardboard cover and under the cover, immediately over the jam, a piece of waxed paper. This was the sort of jam known to the trade as “slip” jam, from a slip of paper affixed to the pot, designating the fruit; the main attraction of slip jam seems to have been that it passed with an innocent public as home-made; and it bore no tell-tale label with the maker’s name.
Mrs. Kirby brought the pot home, opened it forthwith and spread the jam on slices of bread for her husband’s lunch; shortly afterwards she gave a similar luncheon to three of her young children, who had the like meal again for their supper. Mr. Gerald Kirby, the husband, suffered that afternoon and subsequently from an attack of gastro-enteritis, and that night the children had very severe attacks of the same malady with its unpleasant symptoms, which persisted; the eldest boy, Gabriel, aged 9 years, recovered very slowly. Mrs. Kirby herself had a toothache and took no jam, and she gave none to her baby daughter; neither she nor the baby fell ill.
I am satisfied that the members of the family who suffered
did so as the direct result of eating that jam, and that “war bread,” though laxative, would not have induced the same symptoms. I am satisfied that the jam was unwholesome, when seen by Dr. Masterson next day. I am satisfied that the evidence points strongly to the conclusion that the jam was in the same condition when Mrs. Kirby bought it from the grocer. But she had no reason whatever to treat the product as suspect.
I find that the pot of jam came from the defendant, Holloway, through two intermediate grocers, one of whom had kept it for some six months; and, though neither of these reluctant gentlemen was an impressive witness, I do not on the evidence see any reason to believe that there had been any tampering with the jam pot after it left the defendant’s factory.
Professor Bayley Butler, with whose views generally Dr. John Magrath, the pathologist, agreed, gave learned evidence for the plaintiffs. He knew Mrs. Kirby’s story and he examined the jam; while he could not, as a scientist, be certain of the genesis of the contamination whereof he saw symptoms in the jam, he reached the conclusion that some species of fly, carrying bacteria, must have made its way into the jam pot at the factory, probably while the jam was cooling or before its cardboard cap was affixed; that seemed to me a probable theory, unless it should be rebutted or countered by evidence for the defendant. The plaintiffs could not be expected in the circumstances to do more than put forward a probable case through witnesses of authority, and it was not to be expected that any expert witness would find himself in a position to trace the infection to its origin beyond doubt. (Cp. the judgment of Lord Greene M.R. in Dawson v. Murex, Ltd. ) (1). In my opinion, the initial burden of proof was discharged by the plaintiffs, and it remained for the defendant, with his own special knowledge of the conditions under which his jam was made, to displace thatprimá facie case, and to call any expert evidence which might undo it.
The two distinguished men of science called for the defendant gave their opinions in detail on the probabilities against the plaintiffs, but they were not able to exclude the possibility that the theory for the plaintiffs corresponded with the actual facts; the suggestion that the jam may have become infected after Mrs. Kirby opened the pot is practically excluded by the size of the larvae found in the jam by the plaintiffs’ doctor on the 7th of May. On the scientific aspect of the case, I think that the honours are clearly with the plaintiffs’ witnesses; no adequate counter-theory was opposed to them.
It still remained to be seen whether the defendant could prove that his jam-making process was unexceptionable and thus put the plaintiffs’ theory out of Court; and, as in Daniels v. White & Sons, Ltd. (1) a fool-proof process, established by the defendant lemonade-makers, carried the day, the defendant here could reasonably expect to win this action on establishing a fly-proof procedure after his jam is made; but the actual evidence fell decidedly short of proving any effort to attain so high a standard.
Two, and only two, witnesses were called from the factory, the sole owner, Mr. James J. Holloway, and a Miss Brady. The evidence was that Mr. Holloway himself supervised the whole process of jam-making, while Miss Brady was in immediate control of the more important operations; these consisted, where rhubarb was concerned, of slicing, sieving and steaming first, and then of boiling and cooling, and of affixing the waxed paper to the jam; there followed the stacking of the pots; the subsequent packing was under its own charge-hand. There is no State control of jam-making as such, but a factory inspector calls once or twice a year. Mr. Holloway has had thirty years’ experience as a jam-maker in Dublin; I do not know if he has other qualifications. Miss Brady seems to be a very busy lady and she holds a highly responsible post; but she is called a charge-hand; she has had fourteen years’ experience and her pay, apart from overtime, amounts to £2 17s. 6d. a week.
Mr. Holloway says that three boiling pans are kept going together in one room, a room with good light from a glass roof and an electric fan to clear away steam. In October, 1941, when the jam in question was made, Mr. Holloway was, he states, making 7,000 lbs. of jam per diem and the factory was working overtime. After the jam is boiled, it is emptied with buckets into a copper cooling pan and then, almost immediately, while still quite hot, filled into jam pots. The boiling and cooling is done in one room, and next to that room is the stacking room, where the pots are stacked in layers, with ply-wood between them, for two or three days, (three or four days, he said later), with the wax paper on top; there is no special supervisor here. Then the jam pots go to the packing room, where the cardboard top is affixed and the cellophane placed round the pots. The packing girl has to see that the caps are properly adjusted and that the pots going out are clean. The rooms and utensils are washed and kept clean. Mr. Holloway says that he had some thirty-five employees at the material time.
I have omitted from this summary account of the process the evidence as to the covering of the jam with waxed paper, because that evidence calls for separate examination. Here Mr. Holloway and Miss Brady differed in material particulars. Mr. Holloway, the general supervisor, says that, when the jam pots have been filled, they are then run to the stacking room and the wax caps are put on immediately and the pots are then stacked. He states that two girls are employed on the wax paper and one on stacking. There are in the stacking room two windows, kept open in summer and closed in winter; they would be closed in October.
Miss Brady says that experienced hands are necessary and that all her girls have been employed for many years; she has thirteen girls under her. Two girls are employed all day on the capping and stacking; here possibly she was speaking of some different period from her employer.”The wax capping,” she goes on, “is generally done as soon as the jam is filled; it’s part of my work.” Then, in cross-examination, she says that she was told of Mrs. Kirby’s complaint, the first of its kind; she does not think she would be responsible, if there were such a complaint; Mr. Holloway always supervises after her, to see that everything is right; he himself boils when she is on holiday. “The pots are nearly always capped when filled out; sometimes they are not, a matter of a few minutes; sometimes they would be moved into the stacking room; it’s nearly always done in the room where the cooling is done; the cooling is a matter of a minute or two; very rarely the exposed trays are taken into the stacking room; the girl nearly always does it at the cooling table; the jam is capped immediately; a tray might be missed and taken into the stacking room uncapped, but it does not often happen, a few times during the day; it very seldom happens.” And then:”I’ve no need to go into the capping room.” It was, of course, not suggested that the proprietor himself checks the wax capping of every tray-load of pots done in the stacking room; the universal supervisor could not, if he would.
Thus there is no supervision at all, on any occasion when the wax cap is put on in the stacking room. A tired girl in a rush period may put on the cap badly; then a fly will have plenty of time to get in, after the jam has cooled. I do not know what precautions the packing girl takes afterwards, if any, on finding a wax cap loose. Though complaints be very rare, this was no fly-proof process, and I find that reasonable diligence was not used to ensure the continued purity of the jam, a most important matter, after the boiling was complete. Too much was taken on trust. Mr. Holloway received the impugned jam pot from one of the intermediary grocers on 8th May, 1942, and was told by telephone of the complaint; he admits that the jam had not the normal glitter and appeared to have fermented; Mrs. Kirby and her doctor said that they saw maggots in it, but he could discern none. He says he just put the jam on a shelf; he did not show the pot to Miss Brady; he did not probe it; he did not cause any portion of the jam to be analysed. A day or two later Mrs. Kirby called to recover her pot; he offered her another, which she refused; she says that he then kept her waiting for some time and that, when eventually he returned her pot, some of the jam seemed to have been replaced with fresh jam and that she told him so, but he said the jam was exactly the same. He denies this account of her protest and his reply, and says that he gave her back the pot as he received it and without any delay. Professor Bayley Butler, to whom the jam was then submitted for analysis, found the top layer brighter in colour than the rest, which had numerous bubbles, suggesting fermentation; the top layer was free from bubbles. I accept Mrs. Kirby’s evidence on this matter. I pass over other discrepancies between her evidence and Mr. Holloway’s. His failure to have a serious analysis made was a bad error of judgment.
I have now to consider whether the law sustains the claim of the plaintiffs to make the manufacturer liable for the unpleasant consequences to them of eating his jam. The defendant manufactures a common article of food, jam, made from fruit of the particular season; he then distributes it for sale by retail grocers to members of the public; he intends it to be sold as food for human consumption and bought as food for human consumption. Before sending it out he pots the jam and places waxed paper over it, closes the pot with a cover and packs it in a coloured cellophane wrapper, with the result that the jam, when sold over the counter, will be taken to be (as it is meant to be) in the condition in which it left the factory, and that the purchaser will have no reasonable opportunity to examine the contents for any visible defects; and a manufacturer must know, as a matter of ordinary experience, that a housewife, the probable purchaser, does not usually, on opening the pot at home, begin by scrutinising the contents for signs of corruption; why should she?
A particular pot of jam turns out to be unwholesome, when bought, and injurious to the consumers, and the question at once arises on what principle is the alleged liability of the maker, who intended no injury and made no contract with the consumers, to be determined? The inquiry involves the ascertainment of the foundation, upon the authorities, of liability for tort at common law.
In 1869, an Irish Court, following English decisions, held on demurrer that, in the absence of fraudulent misrepresentation, the law could give no redress against the manufacturers to a man (the purchaser’s servant) injured by the explosion of a boiler in a steam engine, upon an allegation that the boiler was unsafe by reason of negligence in its construction: Corry v. Lucas (1). The confusion and conflict in later cases in England left the basis of liability in tort at common law so uncertain that at the time of the Treaty nobody could find in case law any sure guide to the actual legal position, and I have no Irish decision to guide me.
I am thus thrown back upon first principles in the endeavour to ascertain where the line is drawn at common law between conduct resulting in unintended hurt which entails liability for damage, and conduct resulting in unintended hurt which entails no liability.
In the quandary produced by the baffling inconsistencies among the pre-Treaty judicial pronouncements, I turn from the Courts to one of the outstanding juristic studies of the nineteenth century, “The Common Law” by Oliver Wendell Holmes, afterwards Mr. Justice Holmes of the Supreme Court of the United States. The work was published in London in 1887. The law which I apply to this case is taken from his penetrating Lectures III and IV on torts and the theory of torts.
That master of the common law shows that the foundation of liability at common law for tort is blameworthiness as determined by the existing average standards of the community; a man fails at his peril to conform to those standards. Therefore, while loss from accident generally lies where it falls, a defendant cannot plead accident if, treated as a man of ordinary intelligence and foresight, he ought to have foreseen the danger which caused injury to his plaintiff.
Applying that norm to the facts, I have to inquire whether a man in the position of the defendant, making jam for the public to eat, is bound, according to the standards of conduct prevailing among us, to take specific precautions against the danger, to the hurt of consumers, of infection to his jam from external causes before it finally leaves his factory; or, more exactly, though he may not have anticipated the precise injury that ensued to the plaintiffs from infection, was he bound, in conformity with those standards, to safeguard his jam from access by flies, as notoriously ubiquitous as they are notoriously dirty, during the interval between the moment when the jam is poured into a jam pot after boiling and the moment, three or four days later, when the jam pot is finally enveloped for sale and sent out? I answer this question, as I believe a jury of practical citizens would answer it, in the affirmative, because our public opinion undoubtedly requires of a jam manufacturer that he shall take care to keep flies out of his jam. Any novice would foresee that a fly might get in, given the chance, and I have already found as facts that the defendant failed to take adequate precautions and that the buyer was in no way at fault.
On the facts of the case now before me, there is no question of remoteness of damage. The test, as Holmes J. puts it is whether the result actually contemplated was near enough to the remoter result complained of to throw the peril of that result upon the actor. The plaintiffs are therefore entitled to succeed.
The much controverted “Case of the Snail in the Bottle,”while leaving subsidiary questions open, has settled the principle of liability on a similar issue finally against the manufacturer in Great Britain. But the House of Lords established that memorable conclusion only twelve years ago in Donoghue v. Stevenson (1), by a majority of three Law Lords to two, “a Celtic majority,” as an unconvinced critic ruefully observed, against an English minority. Where lawyers so learned disagreed, an Irish Judge could not assume, as I was invited to assume, as a matter of course, that the view which prevailed must of necessity be the true view of the common law in Ireland. One voice in the House of Lords would have turned the scale; and it is not arguable that blameworthiness according to the actual standards of our people depends upon the casting vote in a tribunal exercising no jurisdiction over them. Hence my recourse to the late Mr. Justice Holmes. His classic analysis supports the principle of Lord Atkin and the majority. And to that principle I humbly subscribe.
As to damages, this appeal is a re-hearing, so that I must exercise my own judgment on the quantum to award. I shall affirm the decree of the Circuit Court with variations. I award to Mr. Gerald Kirby, the father of the family, the sum of £27 7s. 0d., to include the fees of £7 7s. 0d. payable to the doctor; Mr. Kirby was the breadwinner for the family. I award to Gabriel Kirby, an infant, the sum of £20; I award to Winifred Kirby, an infant, the sum of £12; I award to Noel Kirby, an infant, the sum of £12. I shall follow the order of the learned Circuit Court Judge in every respect as to the payment into Court and investment of the moneys payable to the three infants.
The order for costs made in the Circuit Court will stand, with the substitution of £71 7s. 0d. for damages instead of £87 7s. 0d. The plaintiffs will have their costs of the appeal, to be taxed and ascertained as one set of costs on the basis of a judgment for £71 7s. 0d., and the same witnesses’ expenses as in the Circuit Court, with an additional sum of £3 3s. 0d. for Professor Bayley Butler and an allowance of £3 3s. 0d. for Dr. Magrath. I reserve for further argument the question of the jurisdiction to allow refresher fees.
Clabby v. Global Windows Ltd. & Anor
[2003] IEHC 53 Finnegan P.
The Plaintiff was born on the 26th February 1962 and is a postman. On the 27th March 1996 he was delivering post to a dwelling house at 21 Coolatree Park, Beaumont, Dublin. The letter plate to the premises was located at the foot of the door some two inches only above ground level. The Plaintiff had a bundle of post in his hand and his post bag with the remainder of the post on his right shoulder. He bent down on his hunkers, lifted the flap to the letter plate with his left hand and inserted a letter with his right hand. On commencing to rise from his hunkers he experienced pain in his back.
In these proceedings the Plaintiff claims damages for negligence against the Defendant as the manufacturer, supplier and installer of the door in question. The particulars of negligence pleaded in the Statement of Claim are as follows –
1. Caused and/or permitted a doorway to be installed with a low lying letterbox/ letter plate which they knew or ought to have known represented a hazard, a trap and nuisance to persons using same.
2. Failed to have any or any adequate regard for the health and safety of persons whom they knew or ought reasonably to have known were likely to use the said letterbox/letter plate.
3. Failed to have any or any adequate regard to Irish Standard 195 of 1976 of the I.I.R.S. and the recommendations contained therein in regard to the safe location of letterboxes/letter plates in doorways.
4. Failed to comply with the provisions regarding letter plates contained in BS 2911/1974.
5. Failed to have any or any adequate regard to the recommendations of An Post as to the safe location of letter plates and requests that the manufacturers and suppliers of same have regard to these recommendations.
By letter dated 20th April 2001 an additional particular of negligence was pleaded as follows –
At all times material hereto, the Defendant knew or ought to have known that postmen would be required to use the said doorway and the low lying letterbox installed
therein for the purposes of delivering mail to the said premises. In the premises, the Defendant owed such postmen (including the Plaintiff) a duty of care in the manufacturer, supply and/or installation of the said doorway so as to ensure that the letterbox/letter plate therein would not be so installed as to create a risk of injury to such persons by requiring them to bend or stoop so as to deliver mail to the said low lying letterbox/letter plate.
The Defence delivered denies liability and pleads that the injury sustained by the Plaintiff was as a result of his own negligence and/or contributory negligence particulars of which are as follows –
1. Exposed himself to risk of injury or damage of which he knew or ought to have known
2. Failed to take care for his own safety.
3. Failed to carry out his task properly, or safely.
4. Failed to ensure that he would not injure himself while carrying out his work.
5. Failed to mitigate his loss if any.
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6. Such further and other particulars of negligence and/or contributory negligence which may be more particularly in the knowledge of the Plaintiff and may be adduced at the hearing of this action.
On the evidence adduced by the Plaintiff I am satisfied that the door in question with the letter plate situated as described was manufactured, supplied and installed by the Defendant in December 1993. I am satisfied that the Plaintiff sustained his injuries in the circumstances and manner which he described.
Low level letter plates were recognised by the Department of Posts &Telegraphs and by An Post and postmen as a problem. In Barclay v An Post & Another 1998 2 I.L.R.M. 315 the Plaintiff was a postman who sustained injury to his lower back on the 30th June 1993 in delivering a letter to a low letter plate. He returned to work at the end of August or the beginning of September 1993. On the 21ST October 1993 he was employed on overtime to deliver post to a new development of 350 houses all of which had low letter plates and he sustained a recurrence of the injury. He instituted proceedings against An Post, his employer and against the occupier of the premises at which he sustained his injury, the second named Defendant. The action against the second named Defendant was discontinued. It appears from the report at page 394 that Senior Counsel for the first named Defendant An Post accepted that low letter plates posed a danger to the health of postmen and that the type of injury suffered by the Plaintiff was foreseeable. This was not surprising in the light of the evidence which was recorded in the Judgment at pages 389 – 393 of the efforts made by the Department of Posts & Telegraphs and by An Post from 1966 up to the date of hearing to persuade various statutory bodies to regulate the positioning of letter plates upon the basis that low letter plates represented a health hazard in terms of potential for back injury. It was there held that the Defendant was not negligent in relation to the injury sustained on 30th June 1993 but was negligent in relation to the injury sustained on the 21st October 1993 – at that date the Defendant was aware that the Plaintiff had suffered a severe back injury in June 1993 and his back was to the knowledge of the Defendant vulnerable at the 21st October 1993 when he was sent out to deliver mail to a development where some 350 houses had low letter plates.
It appears from the Judgment at page 391 that the Department of Posts and Telegraphs had an input into IS l95 of 1976 Standard Specification (Letter Plates) Declaration 1976 in that additional material was included with. regard to the positioning of letterboxes. The foreword to the Declaration contains the following –
“Compliance with this specification will have the following advantages:-
1. Injury to postmen will be avoided.
2. Delivery of mail will be faster as the postman will not have to stoop or reach or wait for the door to be opened except on infrequent occasions.
3. Damage due to the folding of mail which is oversize for existing letter plates will be reduced.
The requirements for the positioning and fixing of letter plates are more appropriate to a Code of Practice but are included in an Appendix in this specification for the present “.
Insofar as injury is dealt with in the Declaration it is dealt with as follows –
4.2 The various component parts of a letter plate shall be smooth and designed to preclude injury to hands when inserting mail.
Appendix A deals with the location of letter plates. The Appendix contains nothing to suggest that the possibility of injury is intended to be addressed: rather what is addressed is convenience -see Appendix A at A1.3 –
“Apart from being inconveniently situated, a letter plate that is low down enables mail to be burgled from the floor inside “.
There is a corresponding British Standard BS 2911 of 1974 and Appendix A there is identical to Appendix A in the Irish Standard.
On my reading of I.S. 195 of 1976 I am not satisfied that it was concerned with the possibility of postmen or indeed occupiers sustaining low back injury. Appendix A to the same was concerned with convenience. I am not persuaded to the contrary by the evidence of Mr. McCabe.
In late 1994 An Post commissioned a report from Ms Auveen Byrne which dealt with the possibility of low back injury but this is subsequent to the supply of the door with which I am concerned. Following on from this An Post took a number of steps to highlight and publicise this problem. In June 1995 they wrote to among others the Irish Homebuilders Association and the Royal Institute of Architects of Ireland letters which contained the following paragraph –
“The result of badly placed letterboxes can have a detrimental effect on the health of our delivery staff. It is necessary for them to bend down virtually to ground level while carrying a bag of mail in order to place letters in low letterboxes. It is often the case that low letter plates are fitted to many if not all doors in new housing developments “.
Again the problem as identified by An Post was set out in a leaflet which they circulated widely in late 1995 –
“Serious delivery problems can occur because of the location of letterbox plates in doors.
Low letterbox plates:
Post person has to bend down to insert mail through the aperture while carrying a bag of mail.
Where low letterboxes are located in a number of consecutive houses (in a scheme) it is a major problem. Repetitive bending can cause back strain.
Letters on the floor:
The elderly, infirm or disabled can find it very difficult to pick up letters off the floor where low letter plates are in use “.
The correspondence and the leaflet were the work of Mr. McCabe who gave evidence before me and it is clear from his evidence that he saw the problem as one of low back injury as a result of repetitive bending and this is borne out by the wording of the leaflet.
The medical evidence and in particular that of Mr. McNamee on behalf of the Plaintiff is that the risk involved in the manoeuvre being carved out by the Plaintiff is no different from that involved in picking a pin from the floor or removing a cup from a low level kitchen cupboard. Each time any such operation is carried out there is a risk. The more frequently the operation is carried out the greater the risk in mathematical terms. However repetition does not make injury more likely in medical terms. The weight of the object to be lifted is not a factor. The injury could be sustained lying in bed. The injury can be sustained when flexing forward and the risk is increased if there is a simultaneous twisting motion. The injury can be avoided by adopting a proper posture and avoiding flexing the back. The risk is increased if the flexing is accompanied by a twisting motion.
I am satisfied on the evidence of Mr. Bolger and of the Plaintiff given in cross examination that the Plaintiff was trained in lifting techniques and that as part of that training advised as to the method of effecting delivery to low letter plates. He was
advised as to the manner in which he should position his feet and to bend down while keeping his back straight with his head down and chin in. Mr. Bolger said that this was the technique to be employed whether one was putting on socks or picking up a paper clip. Most importantly however Mr. Bolger made it very clear that the postman in carrying out such an operation should take his postbag from his shoulder. This the Plaintiff did not do. Mr. Bolger demonstrated the correct technique in court and satisfied me that it is possible without difficulty to deliver a letter to a low letter plate using the same: he could bend down keeping his back straight and perform the operation without any discernible twisting movement. On the basis of the demonstration I prefer the evidence of Mr. Bolger to that of the Plaintiff s engineer, Mr. Romeril, which was to the effect that the operation could not be carried out without flexing the back and performing a twisting motion. I am also satisfied that the possibility of carrying out the operation without flexing and twisting is made more difficult if the post bag is not removed from, the shoulder.
Statistics in relation to injuries sustained by postmen in delivering mail to letter plates of private residences for the years 1991 -1994 were produced in evidence. Having regard to the date of installation of the door at the centre of this claim statistics up to the end of 1993 appear to me to be relevant and these are as follows:
Year No. of Incidents Region Accident Details and work involved Potential Injury No. of workdays Lost
1990 None – – – –
1991 1 Dublin Strained back bending while placing mail in low letterbox. Minor 6
1992 1 Cork Cut finger in letterbox while out on door to door delivery. Minor 2
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1993 2 Dublin Strained back bending while placing mail in low letterbox. Serious 7
Dublin Strained back bending while placing mail in low letterbox. Minor 9
The two incidents recorded in 1993 must relate to the Plaintiff in the Barclay case which I have mentioned above.
A striking feature of the concern and discussion about the positioning of letter plates is that the householder is by and large ignored. It is adverted to in An Post’s leaflet as a problem for elderly, infirm or disabled householders. It is unusual in private residences to have a letter box behind the letter plate and in the great majority of private residences post will fall to the floor and in turn have to be picked from the floor by the householder. The householder in doing so runs exactly the same risk in medical terms as the postman and which the Plaintiff’s witnesses tell me is exactly the same risk as if picking up a pin or removing an item from the bottom shelf in a cupboard or say a supermarket. Other than the concern expressed in An Post’s leaflet for elderly, infirm or disabled householders performing this operation this does not appear to have been considered: it is not considered in either the Irish or British Standards. This confirms to me that the Irish Standard was concerned only with injury from sharp edges to letter plates and in Appendix A with the convenience of postal deliveries. If the concern was with health and safety one would expect at least a recommendation that a letterbox be fitted behind the letter plate to avoid the necessity of bending down to the floor to collect post.
In the light of the foregoing I propose to consider the law as to whether the Defendant in this case owed a duty to the Plaintiff and if so the extent of that duty and whether the Defendant is in breach of the same. The law is very succinctly stated in McMahon and Binchy Law of Torts Third Edition at page 111 –
“There are four elements in the tort of negligence. These are-
1. A duty of care, that is, the existence of a legally recognised obligation requiring the Defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risks.
2. A failure to conform to the required standard.
3. Actual loss or damage to recognised interests of the Plaintiff and
4. A sufficiently close cause or connection between the conduct and resulting injury to the Plaintiff”.
As to the first of these elements it is well settled that the manufacturer of a product owes a duty of care towards those who may be injured or damaged by the product. There is a co extensive duty on the supplier of the product. In Tulsk Co-op v Ulster Bank Limited High Court 13 May 1983 unreported Gannon 7. said –
“In every case in which a claim for damages is founded in negligence it is essential to examine the circumstances which bring the parties into relation with each other and in
which the risks of reasonably foreseeable harm can be identified, and the extent to which each or either has control of the circumstances, with a view to determining what duty of care, if any, may exist, the nature and extent of the duty, and whether and to what extent there may have been a duty of care to which the damage complained of can properly be attributed”.
In 1993 the only concern which had been expressed by a statutory body is that contained in I.S. 195 of 1976 and this in its terms is limited to the danger of sharp edges on letter plates and the inconvenience to postmen of letter plates which are too low or too high. I do not see that the concern for convenience is sufficient to impose a duty of care in relation to the injury sustained by the Plaintiff. Again in terms of the risk of back injury I am not satisfied that the same can be said to be unreasonable. It is a factor in every day life that we must bend down – the pin on the floor, the kitchen, cupboard, the supermarket shelf, tying ones shoes and a myriad of other examples come to mind. If An Post had a concern it did not clearly express the same in terms of back strain until 1995 after the date of the. installation of the door with which I am concerned. Indeed to date An Post has not succeeded in persuading any statutory authority to take measures to resolve the problem. While not determinative of liability I note that new doors with low letter plates in 1993 were very common and continued to be installed both in new developments and when glazed porch doors were installed in older houses. I am satisfied on the Defendant’s evidence that it was unaware that low letter plates posed a risk of low back injury. In all the circumstances which I have outlined above I am not satisfied that the risk was one of which the Defendant ought reasonably to have been aware. Upon these findings the Plaintiff’s claim ust fail.
As to the fourth element, causation, again I am satisfied that the Plaintiff s claim must fail. The injury was caused by the manner in which the Plaintiff carried out the delivery of the letter. As a matter of probability he did not keep his back straight. He did not remove his bag from his shoulder and this I am satisfied as a matter of probability caused him to perform a twisting motion while his back was flexed. On the evidence of Mr. McNamee this is how the injury was sustained and the fact that a twisting motion was performed made it more likely that injury would be sustained and that the injury if sustained would be more severe. In these circumstances while the low letter plate was the causa sine qua non, of the injury the causa causans was the Plaintiff s own action in failing to adopt, the correct posture and maintaining his post bag on his shoulder while effecting the delivery. The Plaintiff accordingly has failed to satisfy me that the legal cause of his injury was the conduct of the Defendant.
In these circumstances I dismiss the Plaintiff s claim. No order falls to be made on the issues between the Defendant and the Third Party.
Duffy v. Rooney
[1997] IEHC 102 Laffoy J
THE FACTS IN OUTLINE
1. The Plaintiff, Amy Duffy, who was born on 7th April, 1989, was two years and ten months old on 9th February, 1992 when the accident the subject of these proceedings occurred.
2. On that day, which was a Sunday, Amy was visiting the home of her maternal grandfather, Patrick Rooney, the first Defendant, at Kingscourt, County Cavan, in the company of her mother, Patricia Duffy. It was usual for Amy and her parents to spend Sunday at her maternal grandparents’ home. On this occasion, Amy had arrived with her mother the previous Friday and was staying for the weekend because her father was attending a sporting fixture in the West of Ireland. However, Sunday afternoon was to follow the normal pattern in Amy’s young life: her grandfather was to take her for a walk after lunch.
3. The layout of the first Defendant’s house at Kingscourt was the same in 1992 as it is now. The hall door faces the street and opens into a hall. To the right of the hall, there is a sitting room which extends the depth of the house. On the gable wall of the sitting room opposite the door which gives access from the hall, there is a fireplace with a raised hearth and the centre line of the hearth is slightly less than 7½ feet from the front window of the sitting room which gives a view on to the street. The kitchen opens off the hall through a door opposite the hall door. A living room, which the family refer to as “the back room”, opens off the kitchen. There is a solid fuel cooker in the back room. The stairs is to the left of the hall opposite the sitting room door.
4. On 9th February, 1992, the family had lunch in the back room at about 1.30 p.m. Present were the first Defendant and his wife, Noreen Anne Rooney, and their two children who were living at home, Shane and Emma, and Amy and her mother. After lunch, Shane left the house. Mrs. Rooney took Amy by car to visit her sister-in-law. However, the understanding was that, when Amy returned, her grandfather would take her for a walk. While they were out, the first Defendant lit the fire in the sitting room. It was a fire of fine logs, firelighters and coal. The first Defendant spent some time in the sitting room reading the newspaper. His daughter Emma was also in the sitting room for a while but she left about ten minutes before Amy returned.
5. Amy returned with her grandmother at approximately 3.00 p.m. The first Defendant had been looking out the sitting room window awaiting her return. On her return, she entered the house through the back door. She came into the hall immediately with her mother and her grandmother. Her grandmother left by the front door to go to a meeting. Mrs. Duffy put Amy’s coat on her in preparation for the walk. While she was doing this the first Defendant came out of the sitting room into the hall and took his coat off the end of the banister of the stairs. When Amy was dressed, Mrs. Duffy went back into the kitchen in the belief that Amy was going out immediately with her grandfather for her walk.
6. The first Defendant walked through the open door from the hall to the sitting room to put on his coat. As he was putting it on he was looking out the front window. When he had his coat on he turned around and saw Amy coming towards him. As he described it, there was a ball of fire right behind her coat. She was about one foot or two feet away from the fireplace and her coat was burning. She was unaware of this. The first Defendant caught Amy and kept her head and hair away from the flame. He shouted for Mrs. Duffy, who came instantly. Mrs. Duffymanaged to remove the coat from Amy and also to remove her trousers, which had also caught fire. Despite the swift action on the part of the first Defendant and Mrs. Duffy, Amy suffered severe burns to her left buttock and thigh in consequence of which she will be scarred for life.
7. The coat Amy was wearing had been purchased by her grandmother,
8. Mrs. Rooney, in the second Defendant’s store at Drogheda in the spring or early summer of 1991 and had been given to her as a present at Christmas 1991. I will describe the coat in detail later. The trousers and sweatshirt Amy was wearing underneath the coat had also, coincidentally, been purchased from the second Defendant. The trousers and sweatshirt were a matching set and bore warning labels which stated: “Keep away from fire”.
9. The first Defendant testified that he had not heard Amy come into the sitting room. When he turned and saw her, the coat was already on fire but she was oblivious to that fact. Although there was a fireguard in the sitting room and the first Defendant testified that he put it in place when he lit the fire, it is admitted that the fireguard was not in place on the hearth when Amy came into the sitting room. There was nothing abnormal about the fire at the time the accident occurred and Mrs. Duffy testified that it was not a big roaring fire.
10. While the evidence did not establish precisely how the coat came to be ignited, the only reasonable inference which can be drawn from the evidence is that when Amy was passing the open fire the coat came in contact with the fire and ignited and that the trousers subsequently ignited.
11. The first Defendant’s belief is that Emma must have taken the fireguard off the hearth while she was in the sitting room.
THE CLAIMS
12. In these proceedings, the Plaintiff claims damages for negligence and breach of duty against the first Defendant and the second Defendant. Each of the Defendants seeks to attribute liability for the Plaintiff’s injuries wholly or partly to the other and each of the Defendants has served on the other a notice claiming contribution or indemnity.
WAS THE FIRST DEFENDANT IN BREACH OF DUTY TO THE PLAINTIFF?
13. It was urged by the Plaintiff, whose argument was supported by the second Defendant, that the first Defendant was negligent and in breach of his duty to the Plaintiff on three bases, namely:-
(a) that the Court is entitled to infer from the evidence that Emma removed the fireguard and, in so doing, was negligent and, on the basis of the principle enunciated by the Supreme Court in Moynihan -v- Moynihan [1975] I.R. 192, the first Defendant is vicariously liable for Amy’s injuries;
(b) that care and custody of Amy was entrusted by Mrs. Duffy to the first Defendant and that he failed in his duty to supervise her properly in allowing her to enter a room with an unguarded fire; and
(c) that, as the occupier of the house at Kingscourt, the first Defendant failed in his duty of care to Amy, who was a guest in the house, in not ensuring that she, as a very young child, was adequately protected from the dangers of an unguarded open fire.
14. The basis on which the Supreme Court held in Moynihan -v- Moynihan that the defendant in that case could be found to be vicariously liable is succinctly summarised in the following passage from the headnote:-
“… the defendant, as the householder and as the person in control of the hospitality being provided by her in her own house, would be vicariously liable for damage resulting from the negligence of her daughter in performing a gratuitous service for the defendant in the course of the provision of such hospitality.”
15. It is clear from the judgment of Walsh J. that in order to establish vicarious liability in the type of factual context which arose in Moynihan -v- Moynihan and which arises in the instant case, where the defendant householder was extending hospitality to a visiting child, two matters must be proven – that the necessary element of control was vested in the defendant and that the doer of the act which is alleged to be negligent was in the de facto service of the defendant for the purpose of the act. Even if Emma did remove the fireguard, in my view, the evidence does not establish that she was in de facto service of the first Defendant for the purpose of that act, in the sense that the daughter of the defendant in Moynihan -v-Moynihan was in the de facto service of that defendant doing the task of making the tea and putting the teapot on the table. Even if Emma did remove the fireguard, on the evidence, in doing so she acted totally independently of the first Defendant and not in any sense in pursuance of the performance of a gratuitous service for the first Defendant and, accordingly, the principle of vicarious liability is not applicable.
16. It was submitted by Mr. Kearns on behalf of the first Defendant that there was no clear evidence that Amy was transferred into the custody and control of the first Defendant, that there was a hiatus between Mrs. Duffy and the first Defendant and that the latter never assumed custody and control of Amy, so that the responsibility for the supervision and protection of Amy remained with her mother. While there was no express articulation of transfer of the care and custody from Mrs. Duffy to the first Defendant, it is clear from the evidence that Mrs. Duffy believed that as soon as Amy was dressed and ready to go out of doors the first Defendant was taking her out and this was a reasonable belief given that the first Defendant took his own coat from the end of the banister. I infer from the evidence that there was an understanding between Mrs. Duffy and the first Defendant that the first Defendant was assuming responsibility for the care and protection of Amy once she had her coat on and was ready to go for the walk. I find that by the time that Amy was about to enter the sitting room the first Defendant had assumed responsibility for her care and protection and that he failed in his duty of care to her by allowing her to enter and cross a room in which there was an unguarded open fire.
17. Mr. Kearns conceded, rightly, in my view, that, in his position as the occupier of the house at Kingscourt, the first Defendant had a case to answer in that, first, he had failed to notice that the fireguard had been removed and, secondly, he had failed to notice that Amy had come into the room. However, he contended that, insofar as the first Defendant was at fault as occupier, he was at fault only to a minor degree in that he had not been in the room when the fireguard was removed and he was poised to go out when the accident occurred, so that at worst he was guilty of a moment’s inadvertence. It is clear from the evidence that the first Defendant was aware that Amy was in the hall, that she was going for a walk with him as soon as they were both ready, that the door between the hall and the sitting room was open and that there was a fire in the sitting room. He walked past the unguarded fire twice immediately before the accident and he ought to have noticed that the fireguard was not in place. In my view, the first Defendant was in breach of his duty of care to Amy in failing to notice that the open fire was unguarded and in failing to remedy the danger by replacing the fireguard on the hearth.
WAS THE SECOND DEFENDANT IN BREACH OF DUTY TO THE PLAINTIFF?
18. The coat which Amy was wearing on the 9th February, 1992 was designed and sold as a hooded raincoat. It was made of an outer fabric which was a brightly coloured printed woven cotten/polyester mix composed of 66% cotton and 34% polyester and an inner fabric or lining which was a woven 100% cotton fabric. Attached to the lining was a non-woven fibre or wadding 2 mm thick composed of 100% polyester, which was intended for insulation purposes. This wadding was sewn to the lining at the hem and at the seams and in a quilted fashion in lines approximately 4 ins to 5 ins apart. The coat was buttoned down the front. The outer fabric was gathered from a yoke to form a full flared skirt, which was designed to stand out from the body in a bell shape. The lining with the attached wadding was neither as long nor as full as the outer fabric, leaving a gap for air to circulate between the outer fabric and the lining, but the lining was connected to the outer fabric by cloth tabs or fastenings at the sides, which restricted the movement of the outer fabric. There were two labels sewn into the coat. One had the words “St. Bernard Aged 3-4 approx” on one side and “Made in U.K. Dry clean or hand wash 40ºC” on the other side. The other label set out the constituents of the fabrics as 66% cotton and 34% polyester, the lining 100% cotton and wadding 100% polyester. The coat did not carry any label as to whether the fabrics were of low flammability or otherwise and did not carry any warning label to keep away from fire.
19. The coat was one of 5,000 or 6,000 similar coats sold by companies in the Dunnes Stores Group (the Group) which were manufactured for the Group by L.C. (Tailorwear) Limited, a manufacturer which was manufacturing at a plant in Newcastle in the North of England at the time. That company was a large reputable manufacturer which specialised in children’s outer wear and manufactured children’s outer garments for many of the leading multiple chain shores and high street retailers in the United Kingdom, as well as for multiples and retailers in this jurisdiction. It was exporting to the United States of America, Canada, Norway and to Arab states. Its annual turnover in 1991/1992, in monetary terms, was £3,000,000 and it was manufacturing 120,000 garments per year. The fabrics of the raincoat in issue here were sourced by that company from Sir Jacob Behrens, a large reputable supplier of fabrics in the United Kingdom. Although manufactured to the specification of the Group, the coats were of a standard design and style which was popular in the market at the time and as many as 100,000 similar coats were manufactured in the United Kingdom and sold worldwide. At the time in 1991 there were no standards or regulations in force in the United Kingdom in relation to the manufacture or assembly of outer garments for children. No flammability testing was carried out by L. C. (Tailorwear) Limited on the fabrics. No warning label was attached to the coats, as there was no requirement under any standard or regulation in the United Kingdom requiring warning labels to be affixed and none were required under the Group’s specification.
20. Neither the coats nor the fabrics of which they were made up were subjected to flammability tests by the Group and no specific safety features or precautions were addressed in the specification for the coats, because the coats were regarded as standard garments which were common in the market place.
21. In the amended Statement of Claim delivered in the proceedings, the Plaintiff invoked the provisions of the Liability for Defective Products Act, 1991. However, it is common case that the coat which Amy was wearing on 9th February, 1992 was in circulation and, in fact, had been purchased by her grandmother before the coming into force of that Act on 16th December, 1991.
22. Before outlining the contentions of the Plaintiff and the first Defendant which form the basis of the allegation of negligence and breach of duty against the second Defendant, I think it is important to point out that it is not contended by any party that the coat worn by Amy on 9th February, 1992 differed from the other similar raincoats manufactured L. C. (Tailorwear) Limited for the Group in any respect that rendered it defective. There was no suggestion by any party that Amy’s coat was a “rogue” coat. The complaints of defective and unsafe product relate, as it were, to the whole genus of which Amy’s coat formed part.
23. On 18th September, 1992, flammability tests were carried out on the remains of Amy’s coat by Lambeg Industrial Research Association (LIRA). The results of the LIRA tests were relied on by the Plaintiff’s expert witness, Dr. Caroline Maguire, and the expert called by the first Defendant, Mr. Joseph O’Neill. The accuracy of the results of the LIRA tests was accepted by the second Defendant and its experts, Mr. Stephen Eckersley and
24. Mr. John Morris. Three tests were carried out by LIRA using the Test 3 method prescribed in B.S. 5438: 1976 – on the outer fabric and the lining in combination, on the lining alone, and on the outer fabric alone. On each test the result was that the flammability of the test specimen indicated that it did not comply with the requirements of B.S. 5722: 1984. LIRA also carried out two minimum ignition time tests using the methodology of Test 1 prescribed by B.S. 5438: 1976 – on the lining only, and on the outer fabric only. The results of these tests were that the minimum time of ignition in the case of the lining was three seconds and in the case of the outer fabric it was two seconds.
25. In 1991, the only Irish standard in force in relation to children’s apparel was I.S. 148: 1988, which the National Standards Authority of Ireland (EOLAS) brought into force in 1988 and which set out the flammability and labelling requirements of fabrics and fabric assemblies used in children’s nightwear. In I.S. 148: 1988, the expression “children’s nightwear” was defined as meaning any nightwear which is designed for wear and would normally be worn by a person over the age of three months and under the age of 13 years and as including children’s night-dresses, children’s dressing gowns and children’s pyjamas. The expressions “children’s night-dresses”, “children’s dressing gowns” and “children’s pyjamas” were also defined. It is undoubtedly the case, and indeed it was not contended otherwise, that Amy’s coat did not come within any of those definitions so that I.S. 148: 1988 was not applicable to it. I.S. 148: 1988 stipulated that fabrics and fabric assemblies used in children’s night-dresses and in children’s dressing gowns must comply with the flammability requirements of clause 5 and the labelling requirements of clause 6, and those used in children’s pyjamas and children’s cotton terry-towelling bathrobes must comply with the labelling requirements of clause 6, although they were not required to comply with the flammability requirements of clause 5. It was acknowledged in I.S. 148: 1988 that the method of test and technical requirements of the standard were based on B.S. 5438: 1976 (methods of test for flammability of vertically oriented textile fabrics and fabric assemblies subjected to a small igniting flame) and B.S. 5722: 1984 (flammability performance of fabrics and fabric assemblies used in sleepwear and dressing gowns). In general terms, accordingly, under I.S. 148: 1988, children’s night-dresses and dressing gowns were required to comply with the performance criteria stipulated in B.S. 5722: 1984 when tested by the test method prescribed in Test 3 of B.S. 5438: 1976. Having regard to the results of the LIRA tests, the fabrics of which Amy’s coat was made up could not have been used either individually or in combination in the manufacture of a child’s night-dress or a dressing gown. Clause 6 of I.S. 148: 1988 required fabrics used in children’s night-dresses and children’s dressing gowns to bear, inter alia, a label with the words “Low flammability to I.S. 148”. In the case of children’s pyjamas and children’s cotton terry-towelling bathrobes not in compliance with the flammability requirements of B.S. 5722: 1984, clause 6 of I.S. 148: 1988 required that they bear a warning label in red letters with the words “Keep away from Fire”. Accordingly, if the fabrics used in Amy’s coat had been used in the make-up of children’s pyjamas, the pyjamas would have had to carry such a warning label.
26. The Plaintiff’s contention that Amy’s coat was inherently dangerous and unsafe was founded on the expert evidence of Dr. Caroline Maguire. In Dr. Maguire’s opinion, as the fabric failed to comply with the requirements of B.S. 5722: 1984, which would have entitled it to be classified as of “low flammability”, it was classifiable as being highly flammable. In her view,having regard to the composition of the fabrics and the design and the configuration of the garment, it was “uniquely dangerous”. The fact that the outer fabric stood out from the body in a bell shape increased the risk of contact with a fire or a flame. The outer fabric was very flammable. The inner fabric or lining, which was closest to the body, was even more flammable. The fact that the wadding, which was a safer material, was attached to the lining created a scaffold effect so that the wadding’s limited flame spread characteristic was obliterated. The air space between the outer fabric and the lining and the air space surrounding the fibres in the wadding facilitated combustion. Dr. Maguire argued that in the case of children the distinction between nightwear and daywear, as reflected in I.S. 148: 1988, is illogical at the present time. The trend in recent years has been towards lightweight outer garments, and Amy’s coat represented this vogue. Lighter fabrics are more easily combustible. In her view, the hazard identified thirty years ago as applying to nightwear must now be regarded as applying to all clothing for children. Dr. Maguire did not contend that Amy’s coat should not have been put into circulation. She recognised its popularity in the market place. However, in her opinion, the coat should not have been sold without a warning label and preferably should not have been sold without having been treated with a fire retardant in the case of coats’ intended for use by low age groups, by which I understood her to mean young children.
27. Mr. Joseph O’Neill, the expert called by the first Defendant, described Amy’s coat as being “especially dangerous”. He reiterated the points made by Dr. Maguire in relation to the fabric composition and the design and the construction of the garment and emphasised the risks he perceived in the combination of these factors. However,
28. Mr. O’Neill’s opinion diverged from that of Dr. Maguire on the issue as to whether the coat should have been into circulation. Emphasising that the end user of the coat was a child,
29. Mr. O’Neill indicated that the second Defendant should have carried out flammability tests on the fabrics and, having ascertained the flammability of the fabric, it should have recognised that it was dangerous and unsafe and it should not have put the coat on the market. There were light materials available at the time of lower flammability which could have been used for the outer layer of the coat, for example, nylon and polyamides. In his opinion, the use of low flammability textiles for children’s clothing was more effective than the use of fire retardants. Moreover, he considered that labelling garments was not an adequate way of ensuring the safety of young children: clothes intended to be worn by young children should be made of textiles which are not highly flammable and should be suitably designed so as to minimise the risk of burning.
30. The main thrust of the response of the second Defendant and of the evidence which supported it was that the coat Amy was wearing on 9th February, 1992 was neither dangerous nor unsafe. It did not infringe any standard or regulation in relation to children’s wearing apparel in force either in the United Kingdom or in this jurisdiction. In terms of fabric composition, design and in every respect, including the absence of a warning label, it conformed with the universal practice in the manufacture of other raincoats for girls available in the market place at the time.
31. Mr. Stephen Eckersley, the joint Managing Director of Fastech Testing Limited, the largest independent testing house specialising in textile testing in the United Kingdom, who was called by the second Defendant, testified that there was nothing unusual in the fabric composition, the design or the construction of the coat. He would classify the fabric as “flammable”, not as “highly flammable”. It was common practice in 1991, and it still is the practice, to put this type of garment for a child on the market without testing for flammability. In his view, the fabric was perfectly safe to be put on the market. At the time, it was not the practice of retailers to put warning labels on this type of garment. More recently, one major retailer, Marks & Spencers, has introduced voluntary flammability testing for lightweight fabrics. The coat in issue here would have passed the Marks & Spencers test. In recent years, some retailers in the United Kingdom have commenced voluntarily putting warning labels on all children’s clothing.
32. Mr. John Morris, who serves on a number of British Standard, European (C.E.N.) and International (I.S.O.) Committees concerned with textile standards, including B.S.I. T.C.I. 63, which deals with all textile flammability testing, corroborated
33. Mr. Eckersley’s evidence as to the then current practice in the United Kingdom in 1991. In his view, prevailing informed opinion was that it was not necessary to extend the nightwear standard, that is to say, the standard on which I.S.148: 1988 is based, which applies to all nightwear in the United Kingdom whether for adults or children, to other end uses. In his opinion, the nightwear standard is not a suitable yardstick for testing the flammability of garments intended to be worn out of doors. He emphasised that night-dresses are of a different structure to outdoor wear, in that they are considerably longer and more flowing. They are typically of lighter fabrics which are generally knitted, not woven, now. Mr. Morris could not recall any fabrics, apart from the occasional nightwear fabric, being treated with flame retardant in the early 1990s.
34. The evidence establishes that since approximately the end of 1992 to the present day, the Group puts warning labels on all children’s garments.
35. It is not in issue that the second Defendant as the retailer of the coat owed a duty of care to Amy, the ultimate user of the coat. What is in issue is whether the second Defendant observed the standard of care in retailing that product which the law required of it. In considering what standard the law required of the second Defendant in the circumstances of this case, I find it useful to start with the following passage from a judgment dating from the middle of the last century quoted by the authors of McMahon and Binchy on Irish Law of Torts , 2nd Edition, at page 102, even if somewhat maligned by them:-
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.”
36. In applying the standard of the “reasonable man” to different factual scenarios, varying factors and considerations emerge.
37. Mr. Gallagher, on behalf of the second Defendant, submitted that a consideration which frequently arises in cases involving claims by employees against employers and the manner in which the Courts have dealt with that consideration is apposite in determining whether the second Defendant was in breach of its duty of care. In particular, he relied on the following passage from the judgment of the Supreme Court (Henchy J.) in Bradley -v- Coras Iompair Eireann [1976] I.R. 217 at p. 221:-
“Where a workman founds a claim for damages against his employer on an allegation that something was left undone that should have been done in the interests of his safety, the most commonly cited statement of the necessary degree of proof is that formulated by Lord Dunedin at p. 809 of the report of Morton -v- William Dixon Limited :-
‘…I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.’
This rule has been applied in numerous cases including the decision of the Supreme Court in Christie -v- Odeon (Ireland) Limited usually with the gloss given to it by Lord Normand in Paris -v- Stepney Borough Council :-
‘The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it’.”
38. Mr. Gallagher submitted that the test adumbrated in the above quotation has not been satisfied on the evidence before the Court. the Plaintiff cannot succeed against the second Defendant, he argued, because of the absence of any evidence of a common practice prevailing in 1991 under which the manufacturer or retailer of a garment similar to Amy’s coat would have carried out a flammability test and, on the basis of test results similar to the results of the LIRA tests, would not have put the garment into circulation or, alternatively, would not have put it into circulation without first treating it with a flame retardant or, alternatively, without labelling it.
39. Mr. Kearns, on behalf of the first Defendant, on the other hand, pointed to a consideration which arises in actions for professional negligence and the manner in which the Courts have dealt with that consideration as being apposite in the instant case. The principle Mr. Kearns invoked is encapsulated in the following passage from the judgment of the Supreme Court (Henchy J.) in Roche -v- Peilow [1985] I.R. 232 at p. 254:-
“The general duty owed by a solicitor to his client is to show him the degree of care to be expected in the circumstances from a reasonably careful and skilful solicitor. Usually the solicitor will be held to have discharged that duty if he follows a practice common among the members of his profession: see Daniels -v- Heskin [1954] I.R. 73 and the cases therein referred to. Conformity with the widely accepted practice of his colleagues will normally rebut an allegation of negligence against a professional man, for the degree of care which the law expects of him is no higher than that to be expected from an ordinary reasonable member of the profession or of the speciality in question. But there is an important exception to that rule of conduct. It was concisely put as follows by Walsh J. in O’Donovan -v- Cork County Council [1967] I.R. 173 at p. 193:-
‘If there is a common practice which has inherent defects, which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any the less negligent. Neglect of duty does not cease by repetition to be neglect of duty.’
The reason for that exception or qualification is that the duty imposed by the law rests on the standard to be expected from a reasonably careful member of the profession, and a person cannot be said to be acting reasonably if he automatically and mindlessly follows the practice of others when by taking thought he would have realised that the practice in question was fraught with peril for his client and was readily avoidable or remediable. The professional man is, of course, not to be judged with the benefit of hindsight, but if it can be said that if at the time, on giving the matter due consideration, he would have realised that the impugned practice was in the circumstances incompatible with his client’s interest, and if an alternative and safe course of conduct was reasonably open to him, he will be held to have been negligent.”
40. Mr. Kearns also relied on a characteristically blunt passage from the judgment of McCarthy J. at page 263 to the effect that –
“… it cannot be a legal principle that a profession is, so to speak, entitled to ‘one free bite’.”
41. In my view, fundamentally the same test as to whether the appropriate standard of care has been observed is posited in Bradley -v- C.I.E. and Roche -v- Pielow , albeit in different factual contexts. When one translates that test into the factual context which arises in the instant case, the question which falls to be considered is whether, irrespective of the prevailing practice amongst manufacturers and retailers in 1991, a reasonable and prudent retailer, giving due consideration to the fabric composition, the design and the construction of Amy’s coat and the fact that it was intended to be worn by a three year old child, would have realised that the child would be exposed to the risk of serious injury if the garment was put into circulation at all or, alternatively, if it was put into circulation without being treated with flame retardant or, alternatively, without having a warning label affixed to it.
42. Two cases were referred to in the submissions by Counsel in which issues similar to the issues which arise here were considered. The earliest of the two was the decision of the Supreme Court in O’Byrne -v- Gloucester & Another in which judgment was delivered by Finlay C.J. on 3rd November, 1988. In that case, the plaintiff, who was 15½ years of age, while wearing a brushed cotton skirt which was gathered below the waist so that it was standing out from her body, stood in close proximity to a Super Ser butane gas heater. The skirt caught fire and burnt rapidly causing her extensive burning. At the trial of the action, the witnesses called on behalf of the defendants had admitted that the skirt was dangerous, the main danger being the rapidity with which fire, once it had commenced by the application of a naked flame, spread in the material. The danger was well known to the trade for many years. It was known to the defendants, who had actually contemplated placing a warning label on the skirt but decided not to do so. In his judgment, Finlay C.J. said:-
“Having regard to the nature of the risk involved in this particular dangerous aspect of this material, namely, major physical injury to its wearer, which was a danger foreseeable by the Defendants, and having regard to the simplicity of the precaution which it is alleged the Defendants should have taken, namely, the attaching to the garment of a simple warning that it was dangerous if exposed to a naked flame and would burn rapidly, the learned trial Judge was correct in concluding that this was a precaution which a reasonably careful manufacturer and vendor of this type of clothing should have taken.”
43. The second decision was the decision of this Court (Lardner J.) in Browne -v- Primark trading as Pennys & Another in which an ex tempore judgment was delivered on 10th December, 1990. That case concerned a five year old boy whose pyjamas went on fire while he was playing with matches. The pyjamas bore a warning label “Keep away from fire” as required by I.S. 148: 1988. Lardner J., acceding to the defendants’ application for a non suit at the end of the plaintiff’s case, stated as follows:-
“It has been forcefully urged that I should find the Defendants have been guilty of want of reasonable care in marketing these pyjamas. I find I am not persuaded that a reasonably careful retailer, or maker of the garments of this kind, should, in 1986, in this country, have used only flame resistant fabrics in children’s pyjamas. Public standards, which are declared by the Institute which is set up by statute and which are under the control of the department of State do not require it and there is no evidence that such standards were commonly applied here and I am not satisfied that a reasonably careful trader should, as a matter of legal duty at common law, have observed the higher standard of safety claimed on behalf of the Plaintiff. It may well be that such a higher standard should be required by law, but if that is the case, it is a matter for the legislature.”
44. Returning to the facts of the instant case, I propose considering first the relevancy, if any, of I.S.148: 1988 in determining the liability of the second Defendant to the Plaintiff. That standard is not directly relevant, in that the coat at issue here was not a garment to which the standard applied. However, in my view, the standard is relevant insofar as it evidences an official awareness of the risk inherent in using fabric other than fabric of low flammability for lightweight, long, loose garments such as night-dresses, pyjamas and dressing gowns intended for use by children and intended primarily for indoor wear and an official determination that, insofar as it is not necessary to proscribe the use of fabrics other than fabrics of low flammability in the manufacture of such garments, a warning, by means of labelling, of that risk is necessary to protect the public, as evidenced by the requirement of a warning label on pyjamas and terry-towelling bathrobes. It is also of relevance in that that official awareness was communicated to the public, and, in particular, to manufacturers and retailers through publication of I.S. 148: 1988 and, indeed, through publication of the standards and the enactment of the regulations which preceded it.
45. Applying the test extrapolated from the authorities, which I have outlined above, I am not satisfied that the evidence establishes that Amy’s coat was so inherently dangerous that it should not have been put into circulation. I think Dr. Maguire adopted the correct approach in having regard to demands of the market place and the popularity of this type of garment, which is entirely understandable in the light of its attractiveness and utility, and in weighing these factors against the risks the coat presented and the manner in which the risks might be adequately addressed. Moreover, I am not satisfied on the evidence that in 1991 a reasonable and prudent manufacturer or retailer, if he had addressed the issue, would have considered it necessary to substitute a low flammability fabric, such as nylon, for the cotton/polyester outer layer of Amy’s coat in order to protect Amy. The resulting garment would have been a different garment to the type of garment which the evidence shows has found favour with consumers. Similarly, as the evidence shows, to treat the outer fabric with flame retardant would be to detract from the attractiveness and comfort of the coat, because it would render the fabric stiffer and less comfortable where it meets the body, for example, at the elasticated cuff and, in my view, a reasonably prudent manufacturer or retailer would not have considered this step necessary either.
46. However, I am of the view that a reasonably prudent manufacturer or retailer, had he properly addressed the issue, would have, and the second Defendant ought to have, affixed a label to Amy’s coat warning that it should be kept away from fire. The reasonable and prudent manufacturer or retailer properly addressing the issue would have taken the following factors into account, namely:-
(a) that the trend in recent times has been to utilise lighter weight and more flammable fabrics in making up garments intended for wear by children out of doors than thitherto was the case;
(b) that in design terms there are a lot of similarities between a coat such as Amy’s coat and a night-dress or dressing gown particularly in terms of length and looseness and particularly having regard to the fact that frequently a garment such as a raincoat or a winter-coat a size bigger than is appropriate to the child’s age is worn by the child, as happened in Amy’s case;
(c) that very young children have to be dressed by a parent or other adult and that even a garment primarily designed for outdoor wear is normally put on the child in the house and may be worn around the house for some time before the child goes out;
(d) that open fires and gas heaters are a common feature of domestic life in Ireland;
(e) that young children are unpredictable and lack a sense of danger.
(f) the gravity of the consequences of fire accidents; and
(g) the relatively low cost of labelling garments.
accordingly, in my view, the second Defendant was in breach of its duty of care to Amy in failing to affix a warning label to the coat.
CAUSATION
47. The absence of adequate supervision, which permitted Amy to come in close proximity to the fireplace, and the absence of a fireguard, which allowed Amy’s coat to come in contact with the fire, caused her injuries in the sense that had she been prevented from coming into close proximity with the fireplace or, alternatively, had the fireguard been in place, it is highly improbable, if not absolutely out of the question, that her coat would have caught fire and that she would have sustained the injuries she sustained.
48. It was submitted on behalf of the second Defendant that there was no causal link between the fact that Amy was wearing the coat which was purchased from the second Defendant and her injuries. Irrespective of what she was wearing, it was urged, the accident would have occurred. This argument seems to me to be somewhat facile as a response of the case made against it by the first Defendant. However, having found that the second Defendant was in breach of its duty of care to Amy in not affixing a warning label to the coat, the issue I have to consider is whether there is a causal link between the absence of a warning label and Amy’s injuries or, conversely, whether even if the coat had been labelled “Keep away from the fire” the accident would have occurred. It seems to me that two questions require to be addressed on this issue.
49. The first is whether had the coat been labelled it would not have been purchased by Mrs. Rooney and would not have been given as a gift to Amy or, alternatively, whether Mrs. Duffy would not have dressed Amy in it because of the risk disclosed by the warning label. Mrs. Rooney said that had there been a warning label on the coat she would adverted to it and she would have been hesitant to buy something which would have been dangerous, particularly for her granddaughter. I have no doubt that Mrs Rooney honestly believes this but I think the belief is informed by more than a modicum of hindsight and, on the evidence as a whole, I am not satisfied that had the coat been labelled “Keep away from fire” Mrs. Rooney would have considered it inappropriate to buy for her granddaughter.
50. Mrs. Duffy also testified that had there been a warning label on the coat she would probably not have bought it. Later in her evidence, she said that she would be very conscious of a warning label now and when she goes out to buy clothes for Amy now it is the first thing she looks for. She very candidly testified that up to the time of the accident she would have concentrated on the age (i.e. the size of the garment) and maybe on the material. However the most telling fact which emerged was that on the fateful day Amy was wearing trousers and a sweatshirt to which warning labels were attached and the existence of the warning labels did not deter Mrs. Duffy from purchasing the garments and dressing Amy in them. I am unable to infer from the evidence either that Mrs. Rooney and Mrs. Duffy may have been lulled into a false sense of safety by the absence of a warning label or that had the coat been labelled “Keep away from fire” Amy would not have been wearing it at 3.00 p.m. on the 9th February, 1992.
51. The second question which arises is whether, if the coat had had a warning label affixed and Mrs. Rooney and Mrs. Duffy had taken on board the import of the warning label, affairs in the household on that day would have been conducted in such a way that Amy’s coat would not have come in contact with the fire. The evidence establishes that
52. Mr and Mrs Rooney and Mrs Duffy were fully aware of the risk an unguarded fire represents of itself when a young child is present . On this point also I am unable to infer that the circumstances would have been any different on the day if the coat had been labelled.
DECISION ON LIABILITY
53. Accordingly, I have come to the conclusion that the injuries suffered by Amy are entirely attributable to default on the part of the first Defendant.
QUANTUM
54. The medical evidence adduced on behalf of the Plaintiff was not contested.
55. Mr. Matt McHugh, consultant Plastic Surgeon, testified and his medical reports were put in evidence. His report based on his most recent examination of Amy, which took place on 15th April 1997, gives a clear picture of Amy’s physical problem and in it
56. Mr. McHugh recorded his findings and prognosis as follows:-
“This unfortunate little girl is left with dreadful scarring involving the whole of her left buttock and thigh region right down to her knee.
The skin is damaged and is replaced with scar tissue. Part of this is hypertrophic and keloidal in places which means it is raised, lumpy and very disfiguring.
The skin lacks the normal subcutaneous tissue or padding, which means if she were to bang it against anything or hit it, it would break down and would be much slower to heal than normal skin.
From a cosmetic point of view this is very upsetting. It will effect the clothes she wears and her general every day activities.
I do not envisage any change in the future. The position at the moment is permanent. Unfortunately plastic surgery has nothing to offer. It is a matter of waiting to see as she gets older how she reacts and how much it will effect her from a psychological point of view.”
57. In his oral testimony Mr. McHugh addressed the likelihood of contractures developing in the future. There is a slight tightening in the scarred area at present. It is difficult to predict if the scarred area will grow adequately. If it does not and a contracture develops in the future, it will have to be separated and a skin graft inserted.
58. As to the possibility alluded to by Mr. McHugh of Amy having psychological problems in the future, her parents testified as to a change in her post-accident behaviour and personality. They have not, very properly, in my view, subjected her to psychological assessment. However, on the evidence , I think it is probable that her disfigurement will be a source of stress anxiety and embarrassment to Amy as she grows into maturity, particularly in her teenage years and early adulthood.
59. It seems to me that it would be an extremely artificial exercise in this case to distinguish between the damages which are appropriate for her pain and suffering to date and her pain and suffering in the future. In my view, the appropriate quantum of general damages is £150,000, which together with the special damages, which are agreed at £2,095, gives a global award of £152,095.
Cassells (a minor) v. Marks and Spencers plc
[2001] IESC 69 McGuinness J
1. This is an appeal from the judgment and order of Barr J. made in the High Court on the 25th March 1999 whereby he found that the defendant was not negligent and dismissed the infant plaintiff’s claim for damages in respect of personal injuries which had resulted from an incident in which the dress which she was wearing caught fire.
2. The facts of the case, which are not essentially in dispute, are clearly set out by the learned High Court judge in his judgment and they may be briefly summarised. The plaintiff, Rebecca Cassells, was born on the 27th September 1989 and now resides with her mother in Navan. Prior to late 1994 the family lived in Brixton, London. In September 1994 the plaintiff’s mother purchased a cotton day dress for the plaintiff at the defendant’s retail store
at Brixton. The dress had a full flared skirt. Because the plaintiff was small for her age the skirt reached to within three to four inches of her ankles.
3. At 5.30 p.m. on 24th May 1995 the plaintiff and her mother came home to their house in Navan. The plaintiff was wearing the dress with a light cardigan and normal underclothes.
4. She complained that she was cold. When the plaintiff and her mother entered the livingroom Mrs Cassells lit the fire which was in a typical open domestic fire place. There was no fire guard. The plaintiff went to turn on the television and her mother left the room briefly to go upstairs. The learned trial judge accepts that she was out of the room for at most three minutes. On her way downstairs she heard the plaintiff screaming. She ran downstairs and found the child in the kitchen with the back of her dress in flames. Mrs Cassells put her daughter into the kitchen sink and extinguished the flames by turning on the cold tap. The child had suffered severe extensive burns involving the upper leg and buttock on the left side, the back, the left arm pit and left upper arm. Barr J. was satisfied that Mrs Cassells reached the plaintiff within ten seconds from hearing her cry out. The learned judge continued:
“In the light of the foregoing facts the probability is that, having turned on the television, Rebecca went over to the fire to warm herself and stood with her left side nearest the flames as she watched the television. It is evident that the hem of her flared skirt on that side caught fire and the flames spread rapidly upwards. It is likely that as soon as she became aware that her dress was on fire, or at least when she began to feel pain from burning, the child screamed and ran towards the kitchen where she was rescued by her mother a few seconds later. That scenario establishes that the cotton material comprised in the dress was highly flammable and a source of immediate danger for a child to wear if exposed to fire.”
5. The dress which the plaintiff was wearing was made of 100% cotton material. This cotton material had not been treated with a chemical fire retardant. Inside the dress there was a hanging label stitched at one end into a seam. On one side of the label information as to the nature of the material was given together with the customary washing instructions indicated by symbols. On the other side the age range and size of the dress was given and in addition there was a warning in red “KEEP AWAY FROM FIRE” in English and three other languages. This label was a permanent part of the dress. The normal practice of the defendant was to attach to the dress two sizeable cardboard tags which hung below the hem of the dress and were intended to be removed after purchase. One of these tags which was approximately one and a half inches wide by two inches long contained on one side a warning in large red “IN THE INTEREST OF SAFETY IT IS ADVISABLE TO KEEP YOUR CHILD AWAY FROM FIRE”. The same warning was repeated in smaller red capital letters on the other side of the tag in English and three other languages. Mrs Cassells agreed in evidence that she saw the permanent tag and was aware of the warning “KEEP AWAY FROM FIRE”. She did not recall seeing the other cardboard tag but the learned trial judge accepted that in all probability they would have been appended to the dress as described.
6. In evidence the plaintiff’s mother conceded that she should have fitted the fireguard after she lit the fire and that children should not be left unaccompanied in a room with an open fire. She had not intended to be out of the room for long.
7. It was contended on behalf of the plaintiff in the Court below that the defendant was negligent in selling and marketing the dress in question without having it treated with a chemical fire retardant. It was also contended on behalf of the plaintiff that the dress did not contain an adequate warning of the dangers of fire. Barr J. rejected both these contentions and dismissed the claim. There is no appeal from the decision of the trial judge on the fire retardant issue. The present appeal concerns only the adequacy of the warning given by the defendant that the dress should be kept away from fire. In the plaintiff’s notice of appeal the grounds are set out as follows:
“That the learned trial judge was wrong in law and on the facts in holding that despite the finding that the cotton of the lighter variety including that used in the plaintiff’s dress was highly inflammable and that the standard adopted by the defendant/respondent was inadequate, that the warning given by the defendant/respondent in this case was adequate.”
8. There was considerable technical evidence before the Court below as to the testing of materials for flammability and as to statutory and other regulations in England and in this jurisdiction covering both the flammability of materials and the need for warning labels on garments. This evidence established that it had been a requirement of law in the United Kingdom since 1955 that children’s nightwear must conform to a specified minimum flammability standard. Similar regulations existed in this jurisdiction – the Flammability and Labelling Requirements of Fabrics and Fabric Assemblies Used in Children’s Nightwear (I.S. 148: 1988) issued by the National Standards Authority of Ireland. These regulations laid down methods for testing flammability of a material. Details of these tests are given in the judgment of the learned High Court judge and there is no need to repeat them here. What is clear however is that these regulations as to flammability apply only to nightwear and there are no regulations of this type relating to children’s day wear.
9. Barr J. accepted that the defendant company was long established as one of the leading retailers of children’s clothing both in the United Kingdom and in Ireland and that their clothing had “long enjoyed a high reputation for quality and value” . He also accepted that they had a regard for safety which exceeded that displayed by many of their competitors in the clothing industry.
10. Despite the fact that there were no regulations covering children’s day wear the defendant gave evidence that the company had introduced their own minimum requirement as to flammability in respect of materials used in children’s day wear. This standard falls short of the flammability standard required by the British and Irish children’s nightwear regulations. The defendant had also introduced permanent fire warning labels for day wear garments which were similar in nature and wording to those required by the official regulations for nightwear. In addition they added the hanging cardboard label which has been described above. The wording of the warning “keep away from fire” given on the permanent label sewed into the dress was in conformity with the wording required for children’s nightwear both in the United Kingdom and in this jurisdiction – see. I.S. 148: 1988.
11. During the course of the trial eighteen children’s dresses made of cotton and other comparable materials which had been purchased from the defendant’s major competitors were introduced in evidence. All had been tested by independent experts. None conformed to the Marks and Spencer’s standard of flammability for children’s day wear and none had any fire warning label. The learned trial judge accepted that the defendant company “has voluntarily adopted and is complying with a minimum standard of safety vis-à-vis fire risk relating to children’s day wear which leads the field in the retail trade in the U.K. and Ireland.”
12. Having carefully considered the evidence in regard to fire retardant chemical treatment the learned trial judge stated that he was satisfied that the defendant was not negligent or in breach of duty to the plaintiff in marketing the dress without treatment by a fire retardant provided that it contained an adequate fire warning. Ultimately, the essence of the plaintiff’s claim, he said, turned upon the adequacy of the fire warning given by the defendant with the dress. Barr J. then went on to consider the relevant case law in regard to the adequacy of the fire warning and concluded that the defendant had given a sufficiently clear warning and had discharged its duty of care in relation to the plaintiff’s dress by adopting the form of words specified by the regulatory authorities in both jurisdictions for children’s nightwear.
13. Senior Counsel for the plaintiff/appellant, Mr Hussey, submitted that in the circumstances of the case the warnings provided by the defendant/respondent were inadequate. The warnings were “mere platitudes” and did not tell purchasers anything that they did not already know. Mr Hussey dealt in some detail with the evidence that was before the High Court concerning the flammability tests that had been carried out on the cotton material of the dress in question. It was clear that light cotton material was very dangerous if exposed to fire because of the rapidity and acceleration of the flame along the fabric. He referred to the finding of Barr J. (at page 10 of his judgment) that cotton material “presents a major fire hazard” . He submitted that the defendant well knew the characteristics of the material and that the warning given should have contained some indication that the fabric was fast burning or that it was a major fire hazard. An ineffective general warning was equivalent to no warning.
14. Mr Hussey referred to case law and in particular to the case of O’Byrne v Gloucester and Another (unreported Supreme Court 3rd November 1988) where in similar circumstances Finlay C.J. in his judgment in this Court suggested the attaching to the garment in question of “a simple warning that it was dangerous if exposed to a naked flame and would burn rapidly.”
15. The wording suggested by the learned Chief Justice was, Mr Hussey argued, much more effective that the somewhat bland warning provided by the defendant.
16. Senior Counsel for the defendant, Mr Brady, submitted that the wording of the warning, which was specifically the same wording as that of the mandatory warning provided for children’s nightwear, was sufficiently clear. The plaintiff’s mother had admitted in evidence that she had seen the warning label sewn into the dress, that she knew children should not be left alone in a room with an open fire, and that a fire guard should have been provided.
17. He referred to the standards set by Laffoy J. in the case of Duffy v Rooney and Another (unreported High Court 23rd June 1997, unreported Supreme Court 23rd April 1998) where she stated (at page 21 of her judgment):
“However, I am of the view that a reasonably prudent manufacturer or retailer, had he properly addressed the issue, would have, and the second defendant ought to have, affixed a label to Amy’s coat warning that it should be kept away from fire.”
18. That standard had been approved by Hamilton C.J. on appeal in this Court. In the Duffy case no warning label whatsoever had been affixed to the garment in question.
19. In reference to the O’Byrne v Glocester case Mr Brady submitted that in that case also there had been no warning label whatsoever. The ratio of Finlay C.J.’s decision was that there should have been a warning label. The wording which he suggested was obiter. It was unlikely that he saw himself as laying down an exact wording for future labels.
20. Mr Brady also drew attention to the evidence concerning the facts of the market given on behalf of the defendant in the Court below. Neither in this country nor in the United Kingdom was there any statutory or regulatory requirement that fire warning labels be attached to children’s day wear. There was equally no requirement that flammability tests be applied to materials used in these garments. In other European countries even children’s nightwear did not have to be labelled.
21. Eighteen dresses similar to the dress in question in the case, which had been purchased from competitors of the defendant, had been produced in Court. None of them carried any fire warning label.
22. The defendant, who operated flammability standards and provided both a sewn in label and swinging tag label, showed a commitment to safety which went beyond which was required by law and what was normal in the market.
23. Mr Brady pointed out that the evidence showed that some two hundred thousand children’s dresses of this style, which was very popular, had been sold by the defendant. Sixty thousand of the dresses had been sold in that season alone. The present case was the only case known to the defendant where a child wearing one of these dresses had been injured by fire. This went to demonstrate that the defendant’s fire warning was, in fact, both adequate and effective.
Conclusion
24. In this jurisdiction, the mandatory regulations regarding flammability and labelling of children’s nightwear are set out in I.S.148: 1988 Standard Specification (Flammability and Labelling Requirements of Fabrics and Fabric Assemblies used in Children’s Night Wear) Declaration 1988 made by Eolas – The Irish Science and Technology Agency in the exercise of powers conferred by section 20(3) of the Industrial Research and Standards Act 1961 and the Science and Technology Act 1987.
25. Where children’s night clothes comply with the flammability requirements of Clause 5 of the Standard they must bear labels stating “low flammability to I.S. 148” . Children’s pyjamas and bath robes, which do not have to meet the flammability requirements of Clause 5 must, under Clause 6, bear a warning label in red letters with the words “KEEP AWAY FROM FIRE”.
26. There is no requirement either in Ireland or in the United Kingdom for children’s day clothes, of whatever material, to meet any particular flammability standard or to carry any label warning against fire. In the case of the plaintiff’s dress the defendant of its own volition provided a permanent label carrying a warning in the same words as that provided in the Irish and British regulations. In addition the defendant had tested the fabric for flammability, although admittedly to a lower standard than that prescribed in the statutory regulations. The trial judge accepted that in all probability the dress also carried the cardboard warning tag normally attached by the defendant. It appears from the evidence that the defendant went considerably further than most of its competitors in warning purchasers of this type of cotton dress of the danger of fire.
27. Of the cases opened to the Court by counsel on both sides the two most relevant are Duffy (A Minor) v Patrick Rooney and Dunnes Stores (Dundalk) Limited (unreported Supreme Court 23rd April 1998) and O’Bryne (A Minor) v Brendan Gloucester and Ors (unreported Supreme Court 3rd November 1988). In both these cases children were badly burnt as a result of their clothes catching fire. It should be noted, however, that in neither case did the garment in question bear any label whatsoever warning of the dangers of fire. In both cases the Court accepted the need for such a label and that the failure to provide a warning label was a breach of the retailer’s duty of care. In the Duffy case in the High Court Laffoy J. stated:-
“However, I am of the view that a reasonably prudent manufacturer or retailer, had be properly addressed the issue would have, and the second defendant ought to have, affixed a label to Amy’s coat warning that it should be kept away from fire.”
28. Laffoy J., however, went on to hold that in the circumstances of that case the retailer’s breach of duty did not in fact cause the plaintiff’s injuries. In this Court, which upheld the decision of Laffoy J. Hamilton C.J. cited with approval the passage from Laffoy J’s judgment quoted above.
29. In the instant case the defendant, Marks and Spencer, acknowledges the duty of care owing to the plaintiff. It also accepts that, without the provision of the warning label, it would in breach of this duty of care. The label (or labels) provided by the defendant in the instant case fully met, in my view, the standards set by Laffoy J. and approved by this Court in the Duffy case.
30. In the earlier case, O’Byrne v Gloucester , a young girl had been injured when her skirt caught fire from the flame of a butane gas heater. Again the garment was of high flammability (brushed cotton) and carried no warning label. In the High Court the trial judge (Johnson J.) concluded that the defendants were negligent in manufacturing the skirt and selling it without having attached to it some warning regarding the fact that it was made of a fast burning fabric which had not been treated. It was also established in evidence that the defendant in that case had actually contemplated the placing of a warning upon the garment but decided not to do so.
31. In this Court Finlay C.J. in his judgment in the O’Byrne case referred to the flammability and labelling requirements under the British 1964 statutory regulations. At the time of the injury to the plaintiff in O’Byrne (December 1984) there was no Irish standard and no prescribed label in this jurisdiction.
32. As stressed by counsel for the plaintiff, Finlay C.J. upheld the trial judge’s conclusion that a warning should have been provided:-
“..having regard to the simplicity of the precaution which it is alleged the defendants should have taken, namely, the attaching to the garment of a simple warning that it was dangerous if exposed to a naked flame and would burn rapidly, the learned trial judge was correct in concluding that this was a precaution which a reasonably careful manufacturer and vendor of this type of clothing should have taken.”
33. Counsel for the plaintiff argues that in the instant case the defendant should have provided a warning label similar in wording to that used by Finlay C.J., or at the very least a warning stressing the rapid burning qualities of the material. The learned High Court judge did not accept that the defendant’s warning was inadequate. He pointed out (at page 14 of his judgment):-
“…there is no statutory requirement as to fire warnings for children’s day wear and, therefore, it is a matter for the individual manufacturer/retailer to devise a warning which adequately puts child carers on notice that the relevant garments should be kept away from fire.”
34. I find myself in agreement with the learned High Court judge that the warning required by the regulations as to children’s nightwear is in its terms “keep away from fire” a sufficiently clear warning to carers that a child wearing the garment to which the warning is attached should be kept away from unprotected fire.
35. In addition, I find it somewhat difficult to follow the logic of the argument asserted on behalf of the plaintiff that a warning “KEEP AWAY FROM FIRE” merely “tells people what they know already” and is too bland. The warning clearly indicates that the garment is made of flammable material – otherwise there would be no need for the warning. Is it suggested that because the label does not warn that the material burns rapidly one might think that there was really no danger in allowing the garment to come in contact with a naked flame? Is it suggested that a child dressed in material which burns more slowly, but is nonetheless flammable, may safely be exposed to unprotected fire, or that in that case a “keep away from fire” warning may be ignored? Different materials have different properties when exposed to fire; it is well know that some emit fumes; others melt and may adhere to the flesh causing severe burns; others, like cotton, burn rapidly. When a purchaser is presented with a warning label “KEEP AWAY FROM FIRE” the only logical reaction is to do precisely that, regardless of the nature of the particular garment or the material of which it is made. To her credit, the plaintiff’s mother in this case accepted that she had seen the warning label and knew of the danger of an unguarded fire.
36. It is tragic that the plaintiff suffered serious injury. Unfortunately, it is a fact of life that in spite of reasonable care on the part of those concerned such as retailers and parents, such tragic accidents do happen and I would join with the learned High Court judge in admiring the way in which both the plaintiff and her mother have dealt with the sad situation.
37. Nevertheless, I would dismiss the appeal and uphold the decision of the High Court judge.
Donoghue v Stevenson
[1932] UKHL 100 , [1932] AC 562, 1932 SC (HL) 31
LORD ATKIN. My Lords, the sole question for determination in this case is legal: Do the averments made by the pursuer in her pleading, if true, disclose a cause of action? I need not restate the particular facts. The question is whether the manufacturer of an article of drink sold by him to a distributor, in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. I do not think a more important problem has occupied your Lordships in your judicial capacity: important both because of its bearing on public health and because of the practical test which it applies to the system under which it arises. The case has to be determined in accordance with Scots law; but it has been a matter of agreement between the experienced counsel who argued this case, and it appears to be the basis of the judgments of the learned judges of the Court of Session, that for the purposes of determining this problem the laws of Scotland and of England are the same. I speak with little authority on this point, but my own research, such as it is, satisfies me that the principles of the law of Scotland on such a question as the present are identical with those of English law; and I discuss the issue on that footing. The law of both countries appears to be that in order to support an action for damages for negligence the complainant has to show that he has been injured by the breach of a duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury. In the present case we are not concerned with the breach of the duty; if a duty exists, that would be a question of fact which is sufficiently averred and for present purposes must be assumed. We are solely concerned with the question whether, as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take care.
It is remarkable how difficult it is to find in the English authorities statements of general application defining the relations between parties that give rise to the duty. The Courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the Courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on.
In this way it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett M.R. in Heaven v. Pender 11 QB D 503, 509 , in a definition to which I will later refer. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide.
At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa,” is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v. Pender 11 QB D 503, 509 , as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith L.J. in Le Lievre v. Gould. [1893] 1 QB 491, 497, 504 Lord Esher says: “That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.” So A. L. Smith L.J.: “The decision of Heaven v. Pender 11 QB D 503, 509 was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.” I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act. That this is the sense in which nearness of “proximity” was intended by Lord Esher is obvious from his own illustration in Heaven v. Pender 11 QB D 503, 510 of the application of his doctrine to the sale of goods. “This” (i.e., the rule he has just formulated) “includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property.” I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be “used immediately” and “used at once before a reasonable opportunity of inspection.” This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even of the person using, certainly of an intermediate person, may reasonably be interposed. With this necessary qualification of proximate relationship as explained in Le Lievre v. Gould [1893] 1 QB 491 , I think the judgment of Lord Esher expresses the law of England; without the qualification, I think the majority of the Court in Heaven v. Pender 11 QB D 503 were justified in thinking the principle was expressed in too general terms. There will no doubt arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises. But in the class of case now before the Court I cannot conceive any difficulty to arise. A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently, in the course of preparation, he allows the contents to be mixed with poison. It is said that the law of England and Scotland is that the poisoned consumer has no remedy against the negligent manufacturer. If this were the result of the authorities, I should consider the result a grave defect in the law, and so contrary to principle that I should hesitate long before following any decision to that effect which had not the authority of this House. I would point out that, in the assumed state of the authorities, not only would the consumer have no remedy against the manufacturer, he would have none against any one else, for in the circumstances alleged there would be no evidence of negligence against any one other than the manufacturer; and, except in the case of a consumer who was also a purchaser, no contract and no warranty of fitness, and in the case of the purchase of a specific article under its patent or trade name, which might well be the case in the purchase of some articles of food or drink, no warranty protecting even the purchaser-consumer. There are other instances than of articles of food and drink where goods are sold intended to be used immediately by the consumer, such as many forms of goods sold for cleaning purposes, where the same liability must exist. The doctrine supported by the decision below would not only deny a remedy to the consumer who was injured by consuming bottled beer or chocolates poisoned by the negligence of the manufacturer, but also to the user of what should be a harmless proprietary medicine, an ointment, a soap, a cleaning fluid or cleaning powder. I confine myself to articles of common household use, where every one, including the manufacturer, knows that the articles will be used by other persons than the actual ultimate purchaser — namely, by members of his family and his servants, and in some cases his guests. I do not think so in of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong.
It will be found, I think, on examination that there is no case in which the circumstances have been such as I have just suggested where the liability has been negatived. There are numerous cases, where the relations were much more remote, where the duty has been held not to exist. There are also dicta in such cases which go further than was necessary for the determination of the particular issues, which have caused the difficulty experienced by the Courts below. I venture to say that in the branch of the law which deals with civil wrongs, dependent in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted. For this reason it is very necessary in considering reported cases in the law of torts that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges.
In my opinion several decided cases support the view that in such a case as the present the manufacturer owes a duty to the consumer to be careful. A direct authority is George v. Skivington. LR 5 Ex 1 That was a decision on a demurrer to a declaration which averred that the defendant professed to sell a hairwash made by himself, and that the plaintiff Joseph George bought a bottle, to be used by his wife, the plaintiff Emma George, as the defendant then knew, and that the defendant had so negligently conducted himself in preparing and selling the hairwash that it was unfit for use, whereby the female plaintiff was injured. Kelly C.B. said that there was no question of warranty, but whether the chemist was liable in an action on the case for unskilfulness and negligence in the manufacture of it. “Unquestionably there was such a duty towards the purchaser, and it extends, in my judgment, to the person for whose use the vendor knew the compound was purchased.” Pigott and Cleasby BB. put their judgments on the same ground. I venture to think that Cotton L.J., in Heaven v. Pender 11 QB D 517 , misinterprets Cleasby B.’s judgment in the reference to Langridge v. Levy. 4 M & W 337 Cleasby B. appears to me to make it plain that in his opinion the duty to take reasonable care can be substituted for the duty which existed in Langridge v. Levy 4 M & W 337 not to defraud. It is worth noticing that George v.Skivington LR 5 Ex 1 was referred to by Cleasby B. himself, sitting as a member of the Court of Exchequer Chamber in Francis v. Cockrell LR 5 QB 501, 515 , and was recognized by him as based on an ordinary duty to take care. It was also affirmed by Brett M.R. in Cunnington v. Great Northern Ry. Co. (1883) 49 LT 392 , decided on July 2 at a date between the argument and the judgment in Heaven v. Pender 11 QB D 517 , though, as in that case the Court negatived any breach of duty, the expression of opinion is not authoritative. The existence of the duty contended for is also supported by Hawkins v. Smith (1896) 12 Times LR 532 , where a dock labourer in the employ of the dock company was injured by a defective sack which had been hired by the consignees from the defendant, who knew the use to which it was to be put, and had been provided by the consignees for the use of the dock company, who had been employed by them to unload the ship on the dock company’s premises. The Divisional Court, Day and Lawrance JJ., held the defendant liable for negligence. Similarly, in Elliott v. Hall (1885) 15 QB D 315 , the defendants, colliery owners, consigned coal to the plaintiff’s employers, coal merchants, in a truck hired by the defendants from a wagon company. The plaintiff was injured in the course of unloading the coal by reason of the defective condition of the truck, and was held by a Divisional Court, Grove and A. L. Smith JJ., entitled to recover on the ground of the defendants’ breach of duty to see that the truck was not in a dangerous condition. It is to be noticed that in neither case was the defective chattel in the defendants’ occupation, possession or control, or on their premises, while in the latter case it was not even their property. It is sometimes said that the liability in these cases depends upon an invitation by the defendant to the plaintiff to use his chattel. I do not find the decisions expressed to be based upon this ground, but rather upon the knowledge that the plaintiff in the course of the contemplated use of the chattel would use it; and the supposed invitation appears to me to be in many cases a fiction, and merely a form of expressing the direct relation between supplier and user which gives rise to the duty to take care. A very recent case which has the authority of this House is Oliver v. Saddler & Co. [1929] AC 584 In that case a firm of stevedores employed to unload a cargo of maize in bags provided the rope slings by which the cargo was raised to the ship’s deck by their own men using the ship’s tackle, and then transported to the dockside by the shore porters, of whom the plaintiff was one. The porters relied on examination by the stevedores and had themselves no opportunity of examination. In these circumstances this House, reversing the decision of the First Division, held that there was a duty owed by the stevedore company to the porters to see that the slings were fit for use, and restored the judgment of the Lord Ordinary, Lord Morison, in favour of the pursuer. I find no trace of the doctrine of invitation in the opinions expressed in this House, of which mine was one: the decision was based upon the fact that the direct relations established, especially the circumstance that the injured porter had no opportunity of independent examination, gave rise to a duty to be careful.
I should not omit in this review of cases the decision in Grote v. Chester and Holyhead Ry. (1848) 2 Ex 251 That was an action on the case in which it was alleged that the defendants had constructed a bridge over the Dee on their railway and had licensed the use of the bridge to the Shrewsbury and Chester Railway to carry passengers over it, and had so negligently constructed the bridge that the plaintiff, a passenger of the last named railway, had been injured by the falling of the bridge. At the trial before Vaughan Williams J. the judge had directed the jury that the plaintiff was entitled to recover if the bridge was not constructed with reasonable care and skill. On a motion for a new trial the Attorney-General (Sir John Jervis) contended that there was misdirection, for the defendants were only liable for negligence, and the jury might have understood that there was an absolute liability. The Court of Exchequer, after consulting the trial judge as to his direction, refused the rule. This case is said by Kelly C.B., in Francis v. Cockrell LR 5 QB 505 in the Exchequer Chamber, to have been decided upon an implied contract with every person lawfully using the bridge that it was reasonably fit for the purpose. I can find no trace of such a ground in the pleading or in the argument or judgment. It is true that the defendants were the owners and occupiers of the bridge. The law as to the liability to invitees and licensees had not then been developed. The case is interesting, because it is a simple action on the case for negligence, and the Court upheld the duty to persons using the bridge to take reasonable care that the bridge was safe.
It now becomes necessary to consider the cases which have been referred to in the Courts below as laying down the proposition that no duty to take care is owed to the consumer in such a case as this.
In Dixon v. Bell 5 M & S 198 , the defendant had left a loaded gun at his lodgings and sent his servant, a mulatto girl aged about thirteen or fourteen, for the gun, asking the landlord to remove the priming and give it her. The landlord did remove the priming and gave it to the girl, who later levelled it at the plaintiff’s small son, drew the trigger and injured the boy. The action was in case for negligently entrusting the young servant with the gun. The jury at the trial before Lord Ellenborough had returned a verdict for the plaintiff. A motion by Sir William Garrow (Attorney-General) for a new trial was dismissed by the Court, Lord Ellenborough and Bayley J., the former remarking that it was incumbent on the defendant, who by charging the gun had made it capable of doing mischief, to render it safe and innoxious.
In Langridge v. Levy 2 M & W 519; 4 M & W 337 the action was in case, and the declaration alleged that the defendant, by falsely and fraudulently warranting a gun to have been made by Nock and to be a good, safe, and secure gun, sold the gun to the plaintiff’s father for the use of himself and his son, and that one of his sons, confiding in the warranty, used the gun, which burst and injured him. Plea not guilty and no warranty as alleged. The report is not very satisfactory. No evidence is reported of any warranty or statement except that the gun was an elegant twist gun by Nock. The judge left to the jury whether the defendant had warranted the gun to be by Nock and to be safe; whether it was in fact unsafe; and whether the defendant warranted it to be safe knowing that it was not so. The jury returned a general verdict for the plaintiff. It appears to have been argued that the plaintiff could recover wherever there is a breach of duty imposed on the defendant by contract or otherwise, and the plaintiff is injured by reason of its breach; by this is meant apparently that the duty need not be owed to the plaintiff, but that he can take advantage of the breach of a duty owed to a third party. This contention was negatived by the Court, who held, however, that the plaintiff could recover if a representation known to be false was made to a third person with the intention that a chattel should be used by the plaintiff, even though it does not appear that the defendant intended the false representation to be communicated to him; see per Parke B. 2 M & W 531 The same view was adopted by the Exchequer Chamber, the user by the plaintiff being treated by the Court as one of the acts contemplated by the fraudulent defendant. It is unnecessary to consider whether the proposition can be supported in its widest form. It is sufficient to say that the case was based, as I think, in the pleading, and certainly in the judgment, on the ground of fraud, and it appears to add nothing of value positively or negatively to the present discussion. Winterbottom v. Wright 10 M & W 109 was a case decided on a demurrer. The plaintiff had demurred to two of the pleas, as to which there was no decision by the Court; but on the hearing of the plaintiff’s demurrer the Court, in accordance with the practice of the day, were entitled to consider the whole record, including the declaration, and, coming to the conclusion that this declaration disclosed no cause of action, gave judgment for the defendant: see Sutton’s Personal Actions at Common Law, p. 113. The advantage of the procedure is that we are in a position to know the precise issue at law which arose for determination. The declaration was in case, and alleged that the defendant had contracted with the Postmaster-General to provide the mail-coach to convey mails from Hartford to Holyhead and to keep the mails in safe condition; that Atkinson and others, with notice of the said contract, had contracted with the Postmaster-General to convey the road mail-coach from Hartford to Holyhead; and that the plaintiff, relying on the said first contract, hired himself to Atkinson to drive the mail-coach; but that the defendant so negligently conducted himself and so utterly disregarded his aforesaid contract that the defendant, having the means of knowing, and well knowing, all the aforesaid premises, the mail-coach, being in a dangerous condition, owing to certain latent defects and to no other cause, gave way, whereby the plaintiff was thrown from his seat and injured. It is to be observed that no negligence apart from breach of contract was alleged — in other words, no duty was alleged other than the duty arising out of the contract; it is not stated that the defendant knew, or ought to have known, of the latent defect. The argument of the defendant was that, on the face of the declaration, the wrong arose merely out of the breach of a contract, and that only a party to the contract could sue. The Court of Exchequer adopted that view, as clearly appears from the judgments of Alderson and Rolfe BB. There are dicta by Lord Abinger which are too wide as to an action of negligence being confined to cases of breach of a public duty. The actual decision appears to have been manifestly right; no duty to the plaintiff arose out of the contract; and the duty of the defendant under the contract with the Postmaster-General to put the coach in good repair could not have involved such direct relations with the servant of the persons whom the Postmaster-General employed to drive the coach as would give rise to a duty of care owed to such servant. We now come to Longmeid v. Holliday 6 Ex 761 , the dicta in which have had considerable effect in subsequent decisions. In that case the declaration in case alleged that the plaintiff, Frederick Longmeid, had bought from the defendant, the maker and seller of “the Holliday lamp,” a lamp to be used by himself and his wife Eliza in the plaintiff’s shop; that the defendant induced the sale by the false and fraudulent warranty that the lamp was reasonably fit for the purpose; and that the plaintiff Eliza, confiding in the said warranty, lighted the lamp, which exploded, whereby she was injured. It is perhaps not an extravagant guess to suppose that the plaintiffs’ pleader had read the case of Langridge v. Levy. 2 M & W 519; 4 M & W 337 The jury found all the facts for the plaintiffs except the allegation of fraud; they were not satisfied that the defendant knew of the defects. The plaintiff Frederick had already recovered damages on the contract of sale for breach of the implied warranty of fitness. The declaration made no averment of negligence. Verdictwas entered at the trial by Martin B. for the plaintiff, but with liberty to the defendant to move to enter the verdict for him. A rule having been obtained, plaintiff’s counsel sought to support the verdict on the ground that this was not an action for a breach of duty arising solely from contract, but for an injury resulting from conduct amounting to fraud. Parke B., who delivered the judgment of the Court, held that, fraud having been negatived, the action could not be maintained on that ground. He then went on to discuss cases in which a third person not a party to a contract may sue for damages sustained if it is broken. After dealing with the negligence of a surgeon, or of a carrier, or of a firm in breach of contract committing a nuisance on a highway, he deals with the case where any one delivers to another without notice an instrument in its nature dangerous, or under particular circumstances, as a loaded gun, and refers to Dixon v. Bell 5 M & S 198 , though what this case has to do with contract it is difficult to see. He then goes on: “But it would be going much too far to say that so much care is required in the ordinary intercourse of life between one individual and another, that, if a machine not in its nature dangerous — a carriage for instance — but which might become so by a latent defect entirely unknown although discoverable by the exercise of ordinary care, should be lent or given by one person, even by the person who manufactured it, to another, the former should be answerable to the latter for a subsequent damage accruing by the use of it.” It is worth noticing how guarded this dictum is. The case put is a machine such as a carriage, not in its nature dangerous, which might become dangerous by a latent defect entirely unknown. Then there is the saving, “although discoverable by the exercise of ordinary care,” discoverable by whom is not said; it may include the person to whom the innocent machine is “lent or given.” Then the dictum is confined to machines “lent or given” (a later sentence makes it clear that a distinction is intended between these words and “delivered to the purchaser under the contract of sale”), and the manufacturer is introduced for the first time, “even by the person who manufactured it.” I do not for a moment believe that Parke B. had in his mind such a case as a loaf negligently mixed with poison by the baker which poisoned a purchaser’s family. He is, in my opinion, confining his remarks primarily to cases where a person is seeking to rely upon a duty of care which arises out of a contract with a third party, and has never even discussed the case of a manufacturer negligently causing an article to be dangerous and selling it in that condition whether with immediate or mediate effect upon the consumer. It is noteworthy that he only refers to “letting or giving” chattels, operations known to the law, where the special relations thereby created have a particular bearing on the existence or non-existence of a duty to take care. Next in this chain of authority come George v. Skivington LR 5 Ex 1 and Heaven v. Pender 11 QB D 503 , which I have already discussed. The next case is Earl v. Lubbock. [1905] 1 KB 253 The plaintiff sued in the county court for personal injuries due to the negligence of the defendant. The plaintiff was a driver in the employ of a firm who owned vans. The defendant, a master wheelwright, had contracted with the firm to keep their vans in good and substantial repair. The allegation of negligence was that the defendant’s servant had negligently failed to inspect and repair a defective wheel, and had negligently repaired the wheel. The learned county court judge had held that the defendant owed no duty to the plaintiff, and the Divisional Court (Lord Alverstone L.C.J., Wills and Kennedy JJ.) and the Court of Appeal agreed with him. The Master of the Rolls, Sir R. Henn Collins, said that the case was concluded by Winterbottom v. Wright. 10 M & W 109 In other words, he must have treated the duty as alleged to arise only from a breach of contract; for, as has been pointed out, that was the only allegation in Winterbottom v. Wright 10 M & W 109 , negligence apart from contract being neither averred nor proved. It is true that he cites with approval the dicta of Lord Abinger in that case; but obviously I think his approval must be limited to those dicta so far as they related to the particular facts before the Court of Appeal, and to cases where, as Lord Abinger says, the law permits a contract to be turned into a tort. Stirling L.J., it is true, said that to succeed the plaintiff must bring his case within the proposition of the majority in Heaven v. Pender 11 QB D 503 , that any one who, without due warning, supplies to others for use an instrument which to his knowledge is in such a condition as to cause danger is liable for injury. I venture to think that the Lord Justice is mistakenly treating a proposition which applies one test of a duty as though it afforded the only criterion.
Mathew L.J. appears to me to put the case on its proper footing when he says [1905] 1 KB 259 the argument of the plaintiff was that the defendant’s servants had been negligent in the performance of the contract with the owners of the van, and that it followed as a matter of law that any one in this employment had a cause of action against the defendant. “It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on.” I entirely agree. I have no doubt that in that case the plaintiff failed to show that the repairer owed any duty to him. The question of law in that case seems very different from that raised in the present case. The case of Blacker v. Lake & Elliot, Ld. 106 LT 533 , approaches more nearly the facts of this case. I have read and re-read it, having unfeigned respect for the authority of the two learned judges, Hamilton and Lush JJ., who decided it, and I am bound to say I have found difficulty in formulating the precise grounds upon which the judgment was given. The plaintiff had been injured by the bursting of a brazing lamp which he had bought from a shopkeeper who had bought it from the manufacturer, the defendant. The plaintiff had used the lamp for twelve months before the accident. The case was tried in the county court before that excellent lawyer the late Sir Howland Roberts. That learned judge had directed the jury that the plaintiff could succeed if the defendants had put upon the market a lamp not fit for use in the sense that a person working it with reasonable care would incur a risk which a properly constructed lamp would not impose upon him. The jury found that the lamp was defective by reason of an improper system of making an essential joint between the container and the vaporizer; that the defendants did not know that it was dangerous, but ought as reasonable men to have known it. Hamilton J. seems to have thought that there was no evidence of negligence in this respect. Lush J. expressly says so and implies — “I also think” — that Hamilton J. so thought. If so, the case resolves itself into a series of important dicta. Hamilton J. says 106 LT 536 that it has been decided in authorities from Winterbottom v. Wright 10 M & W 109 to Earl v. Lubbock [1905] 1 KB 253 that the breach of the defendants’ contract with A., to use care and skill in and about the manufacture or repair of an article, does not itself give any cause of action to B. when injured by the article proving to be defective in breach of that contract. He then goes on to say, how is the case of the plaintiffs any better when there is no contract proved of which there could be a breach. I think, with respect, that this saying does not give sufficient weight to the actual issues raised by the pleadings on which alone the older cases are an authority. If the issue raised was an alleged duty created by contract, it would have been irrelevant to consider duties created without reference to contract; and contract cases cease to be authorities for duties alleged to exist beyond or without contract. Moreover, it is a mistake to describe the authorities as dealing with the failure of care or skill in the manufacture of goods, as contrasted with repair. The only manufacturing case was Longmeid v. Holliday 6 Ex 761 , where negligence was not alleged. Hamilton J. recognizes that George v. Skivington LR 5 Ex 1 was a decision which, if it remained an authority, bound him. He says that, without presuming to say it was wrong, he cannot follow it, because it is in conflict with Winterbottom v. Wright. 10 M & W 109 I find this very difficult to understand, for George v. Skivington LR 5 Ex 1 was based upon a duty in the manufacturer to take care independently of contract, while Winterbottom v. Wright 10 M & W 109 was decided on demurrer in a case where the alleged duty was based solely on breach of a contractual duty to keep in repair, and no negligence was alleged. Lush J. says in terms that there are only three classes of cases in which a stranger to a contract can sue for injury by a defective chattel: one is that of fraud; the second of articles dangerous or noxious in themselves, where the duty is only to warn; the third of public nuisance. He does not bring the cases represented by Elliott v.Hall 15 QB D 315 (the defective coal wagon) within his classes at all. He says they belong to a totally different class, “where the control of premises or the management of a dangerous thing upon premises creates a duty.” I have already pointed out that this distinction is unfounded in fact, for in Elliott v. Hall 15 QB D 315 , as in Hawkins v. Smith 12 Times LR 532 (the defective sack), the defendant exercised no control over the article and the accident did not occur on his premises. With all respect, I think that the judgments in the case err by seeking to confine the law to rigid and exclusive categories, and by not giving sufficient attention to the general principle which governs the whole law of negligence in the duty owed to those who will be immediately injured by lack of care. The last case I need refer to is Bates v. Batey & Co., Ld. [1913] 3 KB 351 , where manufacturers of ginger-beer were sued by a plaintiff who had been injured by the bursting of a bottle of ginger-beer bought from a shopkeeper who had obtained it from the manufacturers. The manufacturers had bought the actual bottle from its maker, but were found by the jury to have been negligent in not taking proper means to discover whether the bottle was defective or not. Horridge J. found that a bottle of ginger-beer was not dangerous in itself, but this defective bottle was in fact dangerous; but, as the defendants did not know that it was dangerous, they were not liable, though by the exercise of reasonable care they could have discovered the defect. This case differs from the present only by reason of the fact that it was not the manufacturers of the ginger-beer who caused the defect in the bottle; but, on the assumption that the jury were right in finding a lack of reasonable care in not examining the bottle, I should have come to the conclusion that, as the manufacturers must have contemplated the bottle being handled immediately by the consumer, they owed a duty to him to take care that he should not be injured externally by explosion, just as I think they owed a duty to him to take care that he should not be injured internally by poison or other noxious thing. I do not find it necessary to discuss at length the cases dealing with duties where the thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used to serve as a logical differentiation by which to distinguish the existence or non-existence of a legal right. In this respect I agree with what was said by Scrutton L.J. in Hodge & Sons v. Anglo-American Oil Co. (1922) 12 Ll LRep 183, 187 , a case which was ultimately decided on a question of fact. “Personally, I do not understand the difference between a thing dangerous in itself, as poison, and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep’s clothing instead of an obvious wolf.” The nature of the thing may very well call for different degrees of care, and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom a duty is owed may be extended. But they all illustrate the general principle. In the Dominion Natural Gas Co., Ld. v. Collins and Perkins [1909] AC 640, 646 the appellants had installed a gas apparatus and were supplying natural gas on the premises of a railway company. They had installed a regulator to control the pressure and their men negligently made an escape-valve discharge into the building instead of into the open air. The railway workmen — the plaintiffs — were injured by an explosion in the premises. The defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial Committee (consisting of himself, Lord Macnaghten, Lord Collins, and Sir Arthur Wilson), after stating that there was no relation of contract between the plaintiffs and the defendants, proceeded: “There may be, however, in the case of anyone performing an operation, or setting up and installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.” This, with respect, exactly sums up the position. The duty may exist independently of contract. Whether it exists or not depends upon the subject-matter involved; but clearly in the class of things enumerated there is a special duty to take precautions. This is the very opposite of creating a special category in which alone the duty exists. I may add, though it obviously would make no difference in the creation of a duty, that the installation of an apparatus to be used for gas perhaps more closely resembles the manufacture of a gun than a dealing with a loaded gun. In both cases the actual work is innocuous; it is only when the gun is loaded or the apparatus charged with gas that the danger arises. I do not think it necessary to consider the obligation of a person who entrusts to a carrier goods which are dangerous or which he ought to know are dangerous. As far as the direct obligation of the consignor to the carrier is concerned, it has been put upon an implied warranty: Brass v. Maitland (1856) 6 E & B 470 ; but it is also a duty owed independently of contract, e.g., to the carrier’s servant: Farrant v. Barnes. (1862) 11 CB (NS) 553, 563 So far as the cases afford an analogy they seem to support the proposition now asserted. I need only mention to distinguish two cases in this House which are referred to in some of the cases which I have reviewed. Caledonian Ry. Co. v. Mulholland or Warwick [1898] AC 216 , in which the appellant company were held not liable for injuries caused by a defective brake on a coal wagon conveyed by the railway company to a point in the transit where their contract ended, and where the wagons were taken over for haulage for the last part of the journey by a second railway company, on which part the accident happened. It was held that the first railway company were under no duty to the injured workmen to examine the wagon for defects at the end of their contractual haulage. There was ample opportunity for inspection by the second railway company. The relations were not proximate. In the second (Cavalier v. Pope [1906] AC 428 ), the wife of the tenant of a house let unfurnished sought to recover from the landlord damages for personal injuries arising from the non-repair of the house, on the ground that the landlord had contracted with her husband to repair the house. It was held that the wife was not a party to the contract, and that the well known absence of any duty in respect of the letting an unfurnished house prevented her from relying on any cause of action for negligence.
In the most recent case (Bottomley v. Bannister [1932] 1 KB 458; (1932) 101 LJ (KB) 46, 54 ), an action under Lord Campbell’s Act, the deceased man, the father of the plaintiff, had taken an unfurnished house from the defendants, who had installed a gas boiler with a special gas-burner which if properly regulated required no flue. The deceased and his wife were killed by fumes from the apparatus. The case was determined on the gound that the apparatus was part of the realty and that the landlord did not know of the danger; but there is a discussion of the case on the supposition that it was a chattel. Greer L.J. states with truth that it is not easy to reconcile all the authorities, and that there is no authority binding on the Court of Appeal that a person selling an article which he did not know to be dangerous can be held liable to a person with whom he has made no contract by reason of the fact that reasonable inquiries might have enabled him to discover that the article was in fact dangerous. When the danger is in fact occasioned by his own lack of care, then in cases of a proximate relationship the present case will, I trust, supply the deficiency.
It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-beer bottle in the United States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardozo J. in MacPherson v. Buick Motor Co. in the New York Court of Appeals 217 NY 382 , in which he states the principles of the law as I should desire to state them, and reviews the authorities in other States than his own. Whether the principle he affirms would apply to the particular facts of that case in this country would be a question for consideration if the case arose. It might be that the course of business, by giving opportunities of examination to the immediate purchaser or otherwise, prevented the relation between manufacturer and the user of the car being so close as to create a duty. But the American decision would undoubtedly lead to a decision in favour of the pursuer in the present case.
My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.
It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense. I think that this appeal should be allowed.
Abouzaid v Mothercare (Uk) Ltd
[2000] EWCA Civ 348
PILL LJ:
1. This is an appeal by Mothercare (UK) Ltd (“the appellants”) against a decision of His Honour Judge Simpson sitting at the Mayor’s and City of London Court on 23 May 2000. Judgment was given against the appellants in the sum of £35,995.72 in favour of Mr Iman Abouzaid (“the respondent”) who had claimed damages against the appellants under the Consumer Protection Act 1987 and in negligence.
The facts
2. The respondent sustained an accident on 16 November 1990 when he was 12 years old. He was helping his mother to attach a product known as a “Cosytoes” to a pushchair. The product had been purchased from one of the appellants’ stores. It is a fleece-lined sleeping bag for use by a young child and had been purchased for use by the respondent’s younger brother.
3. The product was intended to be attached to the pushchair by elasticated straps passed around the back of the pushchair from each side of it and joined by a metal buckle attached to one of the straps. The buckle was intended to pass through a loop on the other strap. The straps are respectively 7 and 8 inches long and just under an inch wide. The buckle is of light construction.
4. The respondent was attempting to join the straps by attaching the buckle when one of the elastic straps slipped from his grasp and the buckle hit him in the left eye.
5. The claimant felt immediate pain. He was taken to the accident and emergency department of a general hospital by ambulance. He was told that his eye was not damaged and sent home with eye cream. Over the next three days, the eye became more painful and the claimant again went to hospital. He was immediately referred first to Western Ophthalmic Hospital and then to Moorfields Eye Hospital. The claimant was found to have hand movements vision in the left eye with evidence of a severe non-blunt penetrating injury giving rise to a shallow temporal half-detachment of the retina.
6. The subsequent medical history need not be set out because it is accepted by the appellants that the current condition of the left eye is the result of the accident. The claimant has no useful central vision. The medical evidence is that the delay in diagnosis did not influence the outcome. What can be said however is that the mechanism by which the injury occurred was predictable but very unlikely. It was possible for a serious injury to the eye to result from the recoil of even this comparatively light elasticated strap on the end of which was a light metal buckle. Very unfortunately, the injury did occur in that way. A recoil would not normally be expected to have these very serious consequences, however.
7. The parties jointly instructed Dr Gordon Hayward, a highly qualified and experienced consulting engineer, to produce a report. His report is dated 29 February 2000 and is supplemented by a letter dated 4 April 2000 in which he answered questions addressed to him by the parties’ lawyers.
The statute
8. The Consumer Protection Act 1987 is “An Act to make provision with respect to the liability of persons for damage caused by defective products”. Section 2(1) provides that “subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom section 2(2) below applies shall be liable for the damage.” It is conceded that the appellants come within section 2(2) as producers of the product.
9. The meaning given to the word “defect” in section 2 is stated in section 3 of the Act:
“(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 injury.
(2) In determining for the purposes of subsection (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; and
(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 the safety of a product which is supplied after that time is greater than the safety of the product in question”.
Section 4(1) of the Act provides inter alia that “in any civil proceedings by virtue of this Part against any person in respect of a defect in a product it shall be a defence for him to show:
“(e) that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while there were under his control; …”.
10. Permission was given to pursue this defence, which had been raised both in the engineer’s report and at the trial. Counsel accepted that the defence should be pleaded and I agree. (Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107). The burden of proof is on the producer.
11. The Act was passed to give effect to Directive 85/374/EEC of the Council of the European Communities dated 25 July 1985. Section 1(1) provides that Part I of the Act “shall have effect for the purpose of making such provision as is necessary in order to comply with the product liability directive and shall be construed accordingly”.
12. The wording of section 4(1)(e) was unsuccessfully challenged by the Commission (EC Commissioner v UK (re the Product Liability Directive (1997 3 CMLR 923) on the ground that it did not properly transpose the Directive since it was broader than the defence under Article 7(e) of the Directive. The decision does not bear directly upon the present case. It has not been suggested that the definition of “defect” in section 3 of the Act fails properly to transpose Article 6 which provides:
“1. A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:
(a) the presentation of the product;
(b) the use to which it could reasonably be expected that the product would be put;
(c) the time when the product was put into circulation.
2. A product shall not be considered defective for the role reason that a better product is subsequently put into circulation.”
13. It is pertinent to note two of the preambular paragraphs in the Directive:
“Whereas, to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances;
Whereas a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances;”.
14. The appellants also draw attention to the expression in another preambular paragraph that in the course of time “higher safety standards are developed”.
The judgment below and the expert evidence
15. It is, with respect, not clear whether the judge based his finding in the respondent’s favour on his view of the Act or on negligence at common law. He stated that the test he had to adopt was “whether what the manufacturer did at that time in 1990 was negligent”. However, he commenced the concluding section of his judgment by stating that in his judgment “there is a defect in this product”. His findings were:
“In my judgment, there is a defect in this product. There was a failure to provide instructions, and there was an unsafe design because it could not be secured in safety. There was a risk that a person using this item quite properly could suffer serious injury, as in fact has happened. A piece of metal was on the end of the elastic where the elastic has to be pulled. If it jerks out of one’s hand then the metal will be a source of danger, and I think that this is simply an application of common sense. It was an obvious danger. It did not have to be manufactured like that. In the result, a lot of energy is involved in the snapping back of the elastic which is likely to cause damage. The matter could easily have been put right with little effort. It has been pointed out that one might have one strap instead of two, which one could pull in safety, so very little adjustment was required to make this item safe.
Also the manufacturer ought to have had in mind that older children, such as this claimant, or teenagers, would be using it. They would probably be bending down into the line of the elastic with the risk of this piece of metal coming into contact with an eye. There was therefore a reasonable chance that older children or teenagers would use it at eye height or level. In my judgment, this was an obvious risk or danger, and the manufacturers should have appreciated it. As I have indicated, the defendants have held themselves out as being the manufacturer.”
16. Some of the reasoning in those paragraphs has a flavour of common law negligence rather than liability under the statute.
17. Dr Hayward has attempted to link his reasoning with the statutory duty in the 1987 Act. He states that “the buckle on the elastic strap of the Cosytoes could cause serious injury if it was accidentally released and came in contact with an eye during its short flight path”. The kinetic energy was capable of causing injury to the eye. He referred to his consultations with other experts in the same field. The result was that he was convinced that there had been no discussion in standards committees of a potential hazard to eyes from elastic straps on any childcare products. The experts he consulted had not heard of or envisaged any injury such as that suffered by the respondent. No such accidents were recorded on the DTI database. Dr Hayward’s conclusion was that:
“5.3.1 … I conclude that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for a cosytoes could pose a hazard to the eyes of children or adults, since the potential risk had not at that time been recognised even by experts in the safety of such childcare products.”
Dr Hayward also stated that:
“5.2.3 I conclude that I should have to advise anyone manufacturing such a cosytoes today that the product would have a safety defect unless the potential risk of injury (to the eyes of a child in the pushchair or the person fitting it) was either eliminated by design or that consumers were warned of the possible risks and how to avoid them. Such advice to consumers would need to include instructions for fitting the cosytoes that avoided the obvious difficulties that Mr Abouzaid and his mother were having prior to the accident.”
18. However, the overall conclusion was that “the product did not have a safety defect of which a supplier could reasonably have been expected to be aware prior to notification of this particular accident suffered by Mr Abouzaid.” That conclusion does not follow the wording of the statute but it appears to be an opinion that in present circumstances there was no breach of statutory duty.
19. The judge expressed his view as to the logic of Dr Hayward’s conclusion in these terms. Dr Hayward “says there is a safety defect today and my judgment is that there must have been a safety defect at the time [1990].”
20. The judge also held that “there was a failure to provide instructions.” Section 3(2) provides that “what persons generally are entitled to expect” requires consideration of “any instruction for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product”. Dr Hayward does not expressly consider this question but I take his conclusion to be that, whereas instructions should be given or other precautions taken today, the state of knowledge in 1990 was not such that instruction or warning could reasonably be expected.
21. An allegation of contributory negligence was rejected by the judge. That is not surprising. Dr Hayward had expressed the view that the claimant and his mother were acting reasonably and sensibly. The appellant does not have permission to appeal against that finding of the judge.
Was there a defect?
22. In my judgment the case turns on whether there was in the product a defect as defined in section 3 of the Act and Article 6 of the Directive. As the ECJ confirmed in Commission v United Kingdom, the statute must be interpreted “in the light of the wording and the purpose of the Directive so as to achieve the result which it has in view” (paragraph 38 of judgment). The product is to be judged by the standard persons generally are entitled to expect in all the circumstances. In the words of the preamble to the Directive, the defectiveness of the product should be determined “by reference not to its fitness for use but to the lack of the safety to which the public at large are entitled to expect”.
23. Fundamental to Dr Hayward’s opinion is that the potential risk had not been recognised in 1990. There were no records of comparable accidents on the DTI database. Aware as he now is of the claimant’s accident, Dr Hayward concludes that the same product manufactured today would have a safety defect. Dr Hayward’s own experiments demonstrate what he describes as the potential hazard:
“I was able to observe on several occasions that the buckle flew right round to a point about 50 mm in front of the cosytoes, and roughly on the centreline of the seat. I also discovered that it was possible to fasten the straps together by just the nose of the hook, and that from this position the hook could easily slip off and fly round as described.
I found that for me it was quite easy to fasten the straps correctly from behind the seat unit. Attempting this from the front of the seat was more difficult, because it was not possible to see the fastening. It also required putting my head close to the seat in order for my arms to reach round behind it. I noticed that the elastic did have a tendency to pull the fastener through my fingers, and it could easily have slipped.
These experiments led to the conclusion in paragraph 5.2.3 already cited.
24. The respondent’s case, as accepted by the judge, can be put very simply. The risk arises from the propensity of elastic to spring back. If in the circumstances that constituted a defect in 1999, it was equally a defect in 1990.
25 Subject to their point under section 4(1)(e), the appellants’ reliance upon the passage of time is in my judgment misplaced. The product is to be judged by the expectations of the public at large, as determined by the Court. It is rightly not suggested that public expectations have changed between 1990 and 1999. Elasticated products have been in use for many years and there is no suggestion of any relevant technical advances which might reasonably affect the expectations of members of the public. The court is required to set the standard on the basis of the evidence and all the circumstances.
26. In my view, the judge’s comment upon the reasoning of Dr Hayward was justified. I should add that, when preparing his report, Dr Hayward did not have guidance, by way of decided cases, upon the relevance of time in the statutory context. The nature of the defect, if there was a defect, is not such that its existence can depend on the passage of time between 1990 and 1999. The time factor spelt out in section 3(2)(c) as a circumstance to be taken into account has no bearing upon the decision on the present facts.
27. I have come to the conclusion that, though the case is close to the borderline, the product was defective within the meaning of the Act. The risk is in losing control of an elastic strap at a time when it is stretched and eyes are in the line of recoil. The product was defective because it was supplied with a design which permitted the risk to arise and without giving a warning that the user should not so position himself that the risk arose. Members of the public were entitled to expect better from the appellants. A factor in that expectation is the vulnerability of the eye and the serious consequences which may follow from a blunt injury to the eye. Expectations would be different if the worst which could occur was an impact of elastic on the hand. It is not necessary for the Court to determine precisely what more should have been done. It is clear that more could have been done, for example a non-elasticated method of attachment or instructions to fasten the straps from behind the seat unit, together with a warning.
Section 4(1)(e)
28. The defence under section 4(1)(e) presupposes a finding that a defect is present. The appellants seek to rely, as “scientific and technical knowledge”, not available in 1990, on the absence in the DTI database of any record of a comparable accident at the time of supply. Such records rank as “technical knowledge” under the section, it is submitted. Only with knowledge of accidents might the producer have been expected to discover the defect.
29. In my judgment that argument fails first on the ground that the defect, as defined, was present whether or not previous accidents had occurred. Dr Hayward has identified the risk which was present. The defect which gave rise to the risk was just as likely (or unlikely) to lead to an accident in 1990 as it was in 1999. Knowledge of previous accidents is not an ingredient necessary to a finding that a defect, within the meaning of the section, is present. Different considerations apply to negligence at common law where foreseeability of injury, as defined in the authorities, is a necessary ingredient. Secondly, I am very doubtful whether, in the present context, a record of accidents, comes within the category of “scientific and technical knowledge”. The defence contemplates scientific and technical advances which throw additional light, for example, on the propensities of materials and allow defects to be discovered. There are no such advances here. In his view that the finding that there was a defect concluded the case against the appellants, I agree with the judge.
30. I do not see advantage in further analysis of the decision in the ECJ already mentioned or of possible differences between section 4(1)(e) and Article 7 of the Directive. I agree with counsel that to do so would not help to resolve the present case. Nor it is appropriate to consider the possible application of the section in other cases.
Common law negligence
31. A decision whether there is a breach of duty in negligence in manufacturing a product which causes injury involves an assessment of the extent of the risk of injury it presents, along with other factors. In this context, the absence of previous comparable accidents, relied on by Dr Hayward, is a relevant factor. Elastic tape is a commonly used fabric and experience had not shown that its use in children’s products such as this one was likely to cause injury. In Paris v Stepney Borough Council [1951] AC 367, Lord Normand stated, at page 382:
“If there is no proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think to obvious that it was folly to omit it.”
32. The issue was put plainly to Dr Hayward by the respondent’s counsel, following the initial report. He replied:
“I believe that if I (or any other expert on the standards committee) had been presented with this product in 1990 we would not have anticipated this accident mechanism. Only with the hindsight provided by accident reports would it have occurred to any of us. I would not therefore have expected any greater foresight by a supplier (unless they had additional knowledge from previous customer complaints). The first case on a public database was not recorded until 1992 … and this was neither identical nor as serious an injury.”
33. Another factor is the seriousness of the injury which may occur, if one does occur. On that issue it can be said that there was a potential for a very serious injury in this case but as against that, the percentage of elastic recoils, even to the face, which will cause injury, I would expect, in the absence of evidence to the contrary, to be very small. The risk, while identifiable, was not in my judgment such that the manufacturer in 1990 can be held to have been negligent in supplying the product in the form it was. On the present facts, a defect, as defined by section 3 of the Act, was present upon the public expectation test but there was no negligence at common law.
Damages
34. The appellants challenge the sum of £15,000 awarded for loss of earning capacity, described by the judge as handicap in the labour market. The respondent is now 22 years old and employed in the hotel trade at a salary of £10,000 a year gross. He has almost the whole of his career ahead of him. Not only is the range of employment open to him limited by what effectively is the loss of sight in one eye but if he were to have problems with the sight in his other eye, as a result of either illness or trauma, the effect on his earning capacity would be very severe. That risk is a factor taken into account in awards for pain, suffering and loss of amenity and it should in my view also be taken into account when assessing a sum under this head. In the circumstances, I do not consider the sum of £15,000 to be one with which this Count should interfere.
35. I would dismiss this appeal.
CHADWICK LJ:
36. Section 2(1) of the Consumer Credit Act 1987 imposes a statutory liability for damage caused wholly or partly by a defect in a product. The liability is imposed on, amongst others, the producer of the product – see section 2(2)(a). Section 3 of the Act gives a statutory meaning to the phrase `a defect in a product’. There is a defect in a product for the purposes of section 2(1) of the Act `if the safety of the product is not such as persons generally are entitled to expect’ – see section 3(1). Section 3(2) requires that, in determining for the purposes of subsection (1) what persons generally are entitled to expect in relation to product, all the circumstances are to be taken into account, including, in particular:
“(a) the manner in which, and purposes for which, the product has been marketed . . . 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, … .
37. In the present case it is common ground that the claimant was injured by a light metal clip attached to an elastic strap which was itself attached to the fleece-lined bag which gives its name to the Coseytoes product. It is common ground, also, that the defendant is to be taken to be the producer of the Coseytoes product.
38. The injury occurred as the result of a combination of three factors: (i) the metal hook slipped from the claimant’s grasp at a time when the elastic strap was under tension; (ii) the tension in the elastic caused the metal hook to describe a trajectory from the rear of the push-chair or buggy to a point in front of the fleece-lined bag; and (iii) the claimant’s face – in particular, his eye – was in the path of that trajectory. In those circumstances it seems to me beyond argument that the damage to the claimant’s eye was caused by features inherent in the Coseytoes product – taking that product to include the metal hook and the elastic strap as well as the fleece-lined bag and having regard to the fact that the metal hook was joined to the fleece-lined bag by the elastic strap. Put simply, the damage was caused because the metal hook struck the claimant’s eye; and the hook struck the claimant’s eye (a) because an elastic strap under tension will seek to regain its untensioned length, (b) if one end of the elastic strap is fixed, the other end (to which, in the present case, the hook was attached) will move under tension in the direction of the fixed end, (c) once the elastic strap has regained its untensioned length, the momentum of the hook will tend to carry that movement on in a more or less random direction within the radius of the untensioned length, and (iv) the momentum of the hook will not fully be spent until the elastic is, once again, at its untensioned length. It is important to keep in mind, as it seems to me, that the question under section 2(1) of the Act is “how was the damage caused”; the question is not “was the cause of the damage foreseeable”.
39. On the basis that (as I would hold) the damage to the claimant’s eye was caused by features inherent in the Coseytoes product, the question for the judge (in relation to liability under the Act) was this: was the safety of the product (having those features) such as persons generally were entitled to expect? If not, then there was a defect in the product for the purposes of the Act.
40. The question whether the safety of the product (having those features) was, or was not, such as persons generally were entitled to expect is, to my mind, a question of fact. The judge answered that question in the negative. After referring to paragraph 5.2.3. in the report of Dr Hayward, an expert instructed jointly by the parties, the judge said this (from page 6 line 27 to page 7 line 6 in the transcript of his judgment):
“What the expert is there saying is that today he would advise that there is a safety defect in this item, presumably on the basis that the safety is not such as persons generally are entitled to expect; but the logic of this conclusion is that if there is a safety defect in this item today there must have been a safety defect in the item in 1990 [when the accident occurred]. It has not suddenly found a safety defect; it is in the same condition today as it was then, and this is the logic, in my judgment, of this conclusion. He says there is a safety defect today, and my judgment is there must have been a safety defect at the time.”
41. Unless there was evidence to support a conclusion that the degree of safety, in relation to a child care product, that persons generally were entitled to expect in 1990 was lower than the degree of safety which was to be expected, in relation to the same product, when Dr Hayward wrote his report earlier this year, that finding of fact by the judge appears to me unassailable. The product which Dr Hayward examined in 2000 was the same product as that supplied to the claimant’s mother in 1990. If, as Dr Hayward acknowledged, it would be necessary to advise anyone manufacturing that product in 2000 that the product would have a safety defect – that is to say, that the safety of the product is not, now, such as persons generally are entitled to expect – why would it not have been necessary to give the same advice in 1990? The safety, or lack of safety, of the product has not changed in the ten years since 1990. The only factor which could have changed, in relation to the test posed by section 3(1) of the Act, is the level of safety which persons generally are entitled to expect in relation to a product of this nature. There was no satisfactory evidence that that factor had changed; and, for my part, I would find it difficult to accept that it had. More pertinently, the judge did not accept that the expectation of persons generally in relation to the safety of child care products had changed in the last ten years; and it is impossible to hold that he was wrong to take that view.
42. Dr Hayward sought to justify his view that the Coseytoes product did not have a safety defect in 1990 by reference to what he described as the state of scientific and technical knowledge in 1990. The relevant paragraphs of his report are these:
“4.5 Knowledge of the potential hazard
4.5.1 Despite representing different interest groups, all three experts I consulted were convinced that there had been no discussion (in any standards committee they served on) of a potential hazard to eyes from elastic straps on any child care products at any time during their involvement. Nor did any of them recall having heard of or envisaged such an injury until I described this one to them. Nor were any of them aware of any mechanical safety problem with cosytoes as a generic class of products … .
5.1 The level of safety that consumers can reasonably expect
5.1.1 …
5.1.2 … However, the act makes clear that consumers cannot expect to be warned by manufacturers of hazards that the manufacturers themselves could not have been expected to be aware of. (See 4.1.2.) [ which sets out the provisions of section 4(1)(e) of the Act]
5.1.2 I conclude therefore that (particularly in the absence of any specific requirements for a particular product in standards or regulations) the level of safety that consumers can reasonably expect is not necessarily a constant, but will rise over time in small steps, if the state of industry knowledge of hazards and their prevention improves.
…
5.3 The state of scientific and technical knowledge in 1990
5.3.1 From 4.5 I conclude that in 1990 that no manufacturer of child care products could reasonably have been expected to have recognised that elastic attachment straps for cosytoes could pose a hazard to the eyes of children or adults, since the potential risk at that time had not been recognised even by experts in the safety of such childcare products.
5.4 Whether the cosytoes had a safety defect
5.4.1 I therefore conclude that the product did not have a safety defect of which a supplier could reasonably have been expected to be aware of prior to notification of this particular accident suffered by Mr Abouzaid.”
43. That reasoning, as it seems to me, elides two questions which the Act requires to be considered separately. The first is “what degree of safety are persons generally entitled to expect” The second is “was the state of scientific and technical knowledge in 1990 such that a producer of products of this nature might have been expected to discover the defect”. The second question is relevant to the statutory defence under section 4(1)(e) of the Act. But, to my mind, it has nothing to do with the first question. The statutory defence, in relation to which the burden is plainly on the producer, as defendant, does not become relevant unless and until the claimant has satisfied the court, under section 3(1) of the Act, that the safety of the product falls below that which persons generally are entitled to expect. Dr Hayward has persuaded himself that the relevant test under section 3(1) is “what level of safety can consumers reasonably expect” – see paragraph 5.1.3 of his report; and has answered that question by saying that because no manufacturer could reasonably have been expected to be aware of the hazard in 1990, consumers could not reasonably expect the product to be free of that hazard – see paragraphs 5.1.2, 5.1.3, 5.3.1 and 5.4.1 of the report. But that is to confuse the test for liability under section 3(1), which is not dependent on fault, with the defence under section 4(1)(e), which enables a producer to escape strict liability if he can show that, having regard to the state of scientific and technical knowledge at the time, he was not at fault in failing to discover the defect.
44. In my view, in the context of the test to be applied under sections 2(1) and 3(1) it is irrelevant whether the hazard which causes the damage has come, or ought reasonably to have come, to the attention of the producer before the accident occurs. To hold otherwise is, to my mind, to seek to reintroduce concepts familiar in the context of a claim in negligence at common law into a statutory regime which has been enacted in order to give effect to the product liability directive promulgated by the Council of the European Communities (Council Directive 85/374/EEC). It is important to have in mind the fifth and sixth recitals to that directive:
“Whereas approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products is necessary because the existing divergencies may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property;
Whereas liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;”
45. It follows, in my view, that the judge was right to disregard any suggestion in Dr Hayward’s report that the level of safety which persons generally were entitled to expect in relation to child care products had changed between 1990 and 2000. Dr Hayward’s remarks to that effect were based on a false understanding of the statutory provisions. The judge was entitled to reach the conclusion, as he did, that the claimant’s damage was caused by a defect in the Coseytoes product.
46. The judge did not consider, in terms, a defence based on section 4(1)(e) of the Act. It may be that he was led, by the absence of any pleaded case raising that defence, to the view that it was not being pursued. We thought it right to allow an amendment to the pleaded defence, to enable the point to be considered in this Court. Having considered the point, I agree with Lord Justice Pill that it provides no assistance to the appellant. The reason, as it seems to me, is that the question whether the producer might have been expected to have discovered the defect in 1990 – before the accident to the claimant had occurred – has nothing to do with the state of scientific or technical knowledge at that time. There was no difficulty in discovering the defect by a simple practical test – as Dr Hayward’s evidence makes clear. No advance in scientific or technical knowledge since 1990 was required to enable that test to be carried out. The only reason that it was not carried out before 1990 was that manufacturers (it seems) had not thought of doing so. The defence under section 4(1)(e) of the Act is simply not engaged in the present case.
47. In the circumstances that I would uphold the judge’s decision under the statute, it is, perhaps, unnecessary to consider the appeal against his decision on the claim at common law. But, for the avoidance of doubt, I should indicate my agreement with the conclusion which Lord Justice Pill has expressed on that point. It was, I think, impossible for the judge to reach a contrary conclusion without rejecting Dr Hayward’s evidence as to the state of knowledge in 1990. In that context the state of knowledge is clearly relevant to an assessment of the risk.
48. There remains only the appeal in relation to the amount of damages which the judge awarded in respect of loss of future earnings. I agree with Lord Justice Pill that there is no basis on which this Court can be asked to interfere with the judge’s award. There is nothing I wish to add on that point.
49. It follows that I would dismiss this appeal.
WRIGHT J:
50. At the outset of this appeal, Mr Makey on behalf of the Claimant made it plain that in the course of the trial he had contended and still continued to contend that the Claimant was entitled to succeed in this action both on the basis of common law negligence and also on the basis of the Consumer Protection Act 1987. This was helpful, because I have to say that, with the greatest respect to the learned trial Judge, it is not clear to me on reading and re-reading his judgment what is the precise basis upon which he found in favour of the Claimant. In my judgment, it is necessary to consider the two bases for liability separately and discretely.
Common Law Negligence.
51. The existence of a duty upon a manufacturer to take reasonable care to avoid injury to the consumer of his product is beyond question. The issue that falls for decision in this appeal is whether the care that this Defendant took to avoid such injury fell below the standard of what is reasonably required in the particular circumstances. A primary question in this context is the likelihood of harm resulting from the manufacturer’s decision to equip his product with this particular kind of securing device; and that likelihood is to be gauged with reference to the state of knowledge which could be attributed to the Defendant at the time of the occurrence. While the learned Judge acknowledged this in the course of his judgment it is not clear to me that he followed the logic through when coming to his conclusion. He regarded the hook on the end of the elastic strap as “an obvious danger”; he also observed “if there is a safety defect in the item today there must have been a safety defect in the item in 1990”. The uncontroverted evidence of the joint expert was that in 1990 no manufacturer of child care products could reasonably have been expected to have recognised that the elastic attachment straps for a Coseytoes “could pose a hazard to the eyes of children or adults … .” The learned Judge’s conclusion, apart from flying in the face of that evidence, is in my judgment not in accordance with well established authority, such as Roe v Minister of Health [1954] 2 QB 66. To paraphrase the observations of Denning LJ in that case: “We must not look at the 1990 accident with 2000 spectacles”. Even if the reasonable layman might have considered that injury of the kind suffered by the Claimant in this case was likely to result from the manufacturer’s choice of this particular method of securing the Coseytoes to the pushchair, the test for foreseeability of harm is the individual Defendant manufacturer’s standard of knowledge. This in turn is to be derived from the actual or constructive knowledge which a reasonable and prudent Defendant manufacturer would have if he had consulted such literature or made such enquiries as were reasonably to be expected of him. The expert’s observation that, if he were advising a manufacturer of this article today, he would advise of the necessity either of giving an appropriate warning or of taking steps to eliminate the risk which he now identifies, seems to me to be avowedly based upon the knowledge that he has gleaned from the circumstances of this very accident, and is accordingly of no relevance to the standard of care to be observed by the reasonably prudent manufacturer of such articles in 1990.
52. There was no dispute between the parties as to the circumstances in which this accident occurred, and the Claimant’s description of the event went unchallenged. In such circumstances we in this Court are in as good a position to decide what the outcome in law of such circumstances should be. The evidence of the expert witness plainly establishes that in 1990 the occurrence of such an accident as this would not have been within the reasonable contemplation of the Defendant in the light of his then state of knowledge. On that evidence, in my judgment, on that evidence, the Claimant fails to establish a claim based on common law negligence.
The Consumer Protection Act 1987.
53. I have had the opportunity of reading in draft the judgments prepared by my Lords. I agree with them both and accordingly I wish to add nothing on this aspect of the appeal.
54. I also agree with my Lord, Lord Justice Pill on the question of quantum. In the circumstances I also agree that this appeal should be dismissed.
Order: Costs to be paid by Respondent; Legal Aid assessment; leave to appeal to the House of Lords refused.
(This order does not form part of approved judgment)
Tesco Stores Ltd & Anor v CFP (A Minor) & Anor
[2006] EWCA Civ 393
Lord Justice Laws :
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, C. 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 C’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 C’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 C, 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 C at 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. C’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.
C’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 C’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 C’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, the bottle 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 C’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. C had 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 C, 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 C’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.
WILSON LJ
I agree.
SIR PAUL KENNEDY
I also agree.