The highs and lows of retail liability

A retailer was found partially liable for injuries suffered by an infant who was able to access a potentially dangerous product on display in their…

Faisal & Faisal v Safiqit Younis t/a Safa Superstore & Active Brands Concept Limited

Manchester County Court 7 July 2017

Executive Summary

A retailer has been found partially liable for injuries suffered by an infant who was able to access a potentially dangerous product on display in their store.

Facts

The first claimant was shopping with her 2 ½ year old son (the second claimant) at the first defendant’s store. The first defendant displayed for sale plastic containers containing caustic soda on the bottom shelf of a display stand. The product was manufactured by the second defendant. The second claimant suffered serious injury when he reached out to the product on the low shelf whilst sat in his pushchair, removed the lid and attempted to digest some of the soda, whilst his mother was shopping.

It was accepted that the first defendant did not have the requisite authority to sell caustic soda (aka sodium hydroxide, a compound to which the Poisons Act 1972 applied).

The second defendant admitted liability to the claimants, seemingly in view of the fact that the lid’s safety features had failed to make it difficult for children to open the lid. The court was therefore required to determine what, if any, contribution to liability was due from the first defendant as the retailer of the potentially dangerous product.

The decision

Mr Recorder Sephton QC, giving judgment in the Manchester County Court, found that the fastening of the soda container was defective as it could easily and quickly be opened by a young child, as the second claimant had done. Irrespective of that, whilst the Child Resistant Packaging and Tactile Danger Warnings (Safety) Regulations 1992 required the packaging to conform with ISO 8317, the standards did not necessarily render a product child-proof, but simply child-resistant, which the first defendant ought to have realised.  

In Mr Recorder Sephton’s opinion, the first defendant ought to have appreciated that the caustic soda was on the Poisons List, and ought to have made enquiries about the product to understand the dangers in stocking it and how to mitigate them. For example, he ought to have consulted the packaging, which identified the potentially harmful effects to eyes and skin, and the need for it to be kept out of the reach of children. He ought to have been aware that packaging can fail or have made enquiries of the manufacturer to understand why the soda should be kept out of reach. Either way, in the Judge’s opinion, the retailer ought to have appreciated that there was a foreseeable risk of injury to children if the product was stored on the bottom shelf.

After considering previous authorities, Mr Recorder Sephton cited four factors to apply in order to decide the existence and scope of a duty of care, once a foreseeable risk is identified:-

  1. The likelihood of injury;
  2. The consequences if the foreseen event occurs;
  3. The social value of the activity giving rise to the risk;
  4. The cost of preventative measures;

Adopting these principles, he found that a duty of care was owed by the first defendant to the claimants and that by failing to take reasonable precautions, the first defendant was in breach of that duty:-

  1. There was always a non-negligible risk that a child would be exposed to the dangerous substance, either as a result of faulty packaging OR because even without the fault, such packaging is only child-resistant, not child proof and therefore other measures were required to protect against the risks of exposure;
  2. The consequences of exposure to children were catastrophic;
  3. Whilst the availability of caustic soda to clean drains had a social utility, this had little significance to the duty owed by retailers to small children in their shops;
  4. The cost of preventative measures was “almost zero” - rejecting as too onerous the submission that the first defendant should have checked each lid for defects, the Judge held that the first defendant ought to have moved the harmful product on to a higher shelf. Had he done so, the accident would not have occurred. In reaching this conclusion, the Judge refused to accept that there was sufficient evidence of a common practice within the retail trade to store such items low down, as the evidence presented did not include consideration of the practices of the major supermarket retailers.

Consequently Mr Recorder Sephton felt that the first defendant was liable in respect of the same damage as the second defendant and ought to contribute. Further, the Judge was not prepared to place any responsibility on the first claimant, as parent. Whilst acknowledging that an occupier of premises is entitled to assume that parents will protect their children from obvious dangers, in the Judge’s opinion, the first defendant was obliged (but failed) to provide “special and particular watch and warning” that he was offering dangerous chemicals for sale on the lowest shelf within easy reach.

In assessing the appropriate contribution of the first defendant at one third, and therefore the second defendant’s contribution at two thirds, Mr Recorder Sephton took in to account the following facts:

  • The second defendant was in breach of a statutory obligation, and aware of the dangers of the product it manufactured;
  • There was a serious breakdown in the second defendant’s quality controls, with the cost of proper controls likely to have been significant;
  • The first defendant was unaware of the dangers of the products he was selling and had many other products to consider;
  • The first defendant could have taken simple and inexpensive precautions. 

Comments

Whilst only a first instance decision, this case highlights the potential pitfalls, and resulting liabilities, which retailers, and their insurers, face as a result of their day to day retail operations. Firstly, retailers should not assume they can simply sell whatever they wish but should satisfy themselves whether any permissions are required to stock particular products. Insurers should consider applicable policy conditions which will enable them to void policies in the event that their policyholders stock certain products or in the event that retailers do not comply with their regulatory responsibilities. Secondly, retailers must not simply rely on manufacturers for product safety. By displaying such products in their stores, retailers must still undertake the appropriate risk assessments and introduce appropriate control measures to ensure that the products are not capable of causing injury or loss to customers. Such measures should include storing potentially dangerous items on higher shelves out of the reach of children, and periodic inspections around the store to ensure that such stock has not been knocked on to the floor by customers. The operation of such controls is likely to be more challenging in stores with fewer staff, high footfall and densely-packed stock.

The decision still leaves some questions unanswered, with Mr Recorder Sephton specifically refusing to be drawn on how a retailer should treat other products such as household bleach. However, adopting the principle that “a shopkeeper (cannot) afford to ignore a label that states ‘keep out of reach of children’, and given that there is often likely to be a choice as to where and how such products can be stored, it would appear inevitable that such products should also be displayed at height where possible.

Weightmans can help retailers review their risk assessments, processes, systems and training. For further information please contact Peter Forshaw, Partner on 0151 242 7935 or email peter.forshaw@weightmans.com

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