Amy Duffy (a minor) suing by her father and next friend Bernard Duffy (plaintiff) v Patrick Rooney and Dunnes Stores (Dundalk) Limited (defendants).
Personal Injuries - Burns sustained as a result of coat catching fire - Vicarious Liability - Supervision and custody of infant - Duty of care of occupier of house - Flammable material - Labelling garments - Duty of care of supplier - Standards - Wide- spread practice in business - Causation - Effect labelling would have had - Damages.
The High Court (before Miss Justice Laffoy); judgment delivered 23 June 1997.
Where both a supervisor/ occupier and a supplier are found to be in breach of their duty of care and no causal connection can be established between the injuries and the breach of duty of the supplier then the supervisor/ occupier must be found entirely liable. The High Court so held in finding that the first defendant and the second defendant were each in breach of duty of care to the infant plaintiff. However, the cause of the injury was not attributable to the second defendant. The first defendant was found to be entirely to blame for the injuries sustained.
Paul Callan SC and Brendan Watchorn BL for the plaintiff; Nicholas Kearns SC and Vincent Foley BL for the first defendant; Paul Gallagher SC, Rory Brady SC and David Barniville BL for the second defendant.
Miss Justice Laffoy said that the plaintiff, who was born on 7 April 1989, was two years and ten months old when the accident the subject matter of the proceedings before the court occurred on 9 February 1992. As was usual for the infant plaintiff she spent Sunday at the home of her maternal grandparents and was to go for a walk with her grandfather (the first defendant) after lunch. The infant plaintiff left the house after lunch with her grandmother and returned a short time later to go for her walk. While she was out, her grandfather lit a fire in the sitting room and placed a fireguard in front of it. A short time before the infant plaintiff returned, it was found by the court that another member of the household must have removed the fireguard before she left the room. On her return, the infant plaintiff was dressed in her coat in the hall of the house by her mother. The first defendant left the sitting room, took his coat from the bannister of the stairs and walked back into the sitting room to put it on, looking out the window as he did.
The infant's mother returned from the hall to the kitchen in the belief that her daughter was departing immediately for her walk. The first defendant turned around to see the infant plaintiff coming towards him with the back of her coat on fire. She was about one or two feet away from the fireplace. He shouted and attempted to keep her head and hair away from the flames while her mother removed her coat and trousers which had also caught fire. The infant plaintiff sustained severe burns to her left buttock and thigh leaving her scarred for life. Miss Justice Laffoy said the coat had been purchased by the plaintiff's maternal grandmother in the second defendant's store in 1991. Her trousers and sweatshirt were also purchased in the same place and bore warning labels saying "Keep away from fire".
The first defendant said he did not hear the plaintiff come into the room. It appeared from the evidence that while he had placed the fire guard in front of the fire it had later been removed. The infant's mother said the fire was not a big one. The inference drawn by the court was that while the infant was passing the open fire her coat came in contact with the fire and ignited and the trousers subsequently ignited.
The plaintiff claimed damages from both defendants for negligence and breach of duty. Each defendant attributed blame to the other. Miss Justice Laffoy dealt firstly with the issue of the first defendant's duty of care to the plaintiff. The plaintiff, supported by the second defendant, contended that the first defendant was negligent and in breach of duty firstly on the basis that the fireguard was removed by another member of the household and therefore the first defendant was vicariously liable for the plaintiff's injuries. The Supreme Court decision of Moynihan v Moynihan [1975] IR 192 was relied upon.
The court considered the case and concluded that in order to establish vicarious liability two matters must be proved - that the necessary element of control was vested in the defendant and that the doer of the allegedly negligent act was in the de facto service of the defendant for the purposes of the act. In the circumstances before the court Miss Justice Laffoy found that the other member of the household was acting entirely independently of the first defendant if she did in fact remove the fireguard and accordingly the first defendant was not vicariously liable for her actions. Secondly it was submitted on behalf of the plaintiff that the care and custody of the infant was entrusted by her mother to the first defendant and he failed in his duty to supervise her properly in allowing her to enter a room with an unguarded fire. Miss Justice Laffoy accepted this contention and found that the first defendant had assumed responsibility for the infant from the time when she had her coat on and was ready to go for her walk.
Thirdly, it was accepted by the court that as occupier of the house he had a duty to the plaintiff to ensure that she was adequately protected from the dangers of an unguarded fire. The first defendant had walked past the unguarded fire twice and had failed to remedy the danger to the plaintiff. Miss Justice Laffoy then considered the position of the second defendant. The coat worn by the plaintiff was buttoned down the front with a gathered flared skirt which stood out from the body. It had two labels one giving the size of the garment together with washing instructions and the other outlining the composition of the fabrics. There was no reference to flammability or no warning in relation to fire. It was manufactured in the United Kingdom and was of a type widely distributed by the second defendant and other distributors throughout the world. At the time there were no regulations in force in the United Kingdom in relation to flammability tests for outer garments or were there requirements to attach warning labels to clothing. There were no such requirements under the specifications of the second defendant's group.
In her judgment Miss Justice Laffoy closely considered the evidence of the various experts in relation to the flammability of fabrics, the general practice in the trade in testing same and the requirements in relation to labelling. Miss Justice Laffoy said it was not in issue that the second defendant owed a duty of care to the plaintiff as the ultimate user of the coat. The net issue was whether the second defendant observed the standard of care in retailing that product which the law required of it. The second defendant relied on the case of Bradley v CIE [1976] IR 217 and submitted that the second defendant could not be found to be in breach of duty as there was no evidence that conducting flammability and other tests was common practice at the time and attaching warning labels was not standard practice.
The first defendant contended that on the basis of Roche v Peilow [1985] IR 232 the fact that a practice is widely adopted does not make it any less negligent.
Miss Justice Laffoy said that the test to be considered was whether, irrespective of the prevailing practice among manufacturers and retailers in 1991, a reasonable and prudent retailer, giving due consideration to the fabric composition, the design and the construction of the plaintiff'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. The court was not satisfied that the coat should not have been put into circulation, or should have been treated with a flame resistant retardant as to do so would detract from the attractiveness and softness of the coat. However, Miss Justice Laffoy concluded that the second defendant ought to have affixed a warning to the effect that the garment should be kept away from fire. It was central to the court's conclusions that to label garments in such a way would cost relatively little and the consequences of fire are very grave.
Miss Justice Laffoy then turned to the issue of causation. The lack of adequate supervision and the absence of a fireguard were central to her being injured. As the second defendant was found to be in breach of its duty of care to the plaintiff in not affixing warning labels the question which fell to be determined was whether there was a causal link between the absence of a warning label and her injuries. Miss Justice Laffoy was of the view that the plaintiff's grandmother would not have thought the garment inappropriate for her granddaughter if it had been labelled with a warning. While evidence had been given to the effect that such warnings would have affected the views of both mother and grandmother the court felt that such views were influenced by the benefit of hindsight. The plaintiff's other garments that day had warning labels affixed to them. Even if the warning had been affixed it was doubtful if circumstances would have been different that day in the house. Both mother and grandmother were fully aware of the dangers an open fire presents to a young child.
Accordingly, Ms Justice Laffoy concluded the injuries suffered were entirely attributable to default on the part of the first defendant. Assessing the damages, the court declined to distinguish between pain and suffering to date and in the future and awarded a sum of £150,000 general damages together with the sum of £2,095 special damages.
Solicitors: Gerard Jones & Co (Carrickmacross) for the plaintiff; Nathaniel Lacy & Partners (Kells) for the first defendant; O'Rourke Reid & Co (Dublin) for the second defendant.
