Faisal & Anor v Younis (t/a Safa Superstore) & Anor

An appellate court must respect a trial judge’s findings of fact and evaluative judgment unless material error is shown. A reasonable shopkeeper may foresee a real, rather than merely possible, risk of injury where a dangerous product carries clear warnings, children can reach it, and a simple precaution would remove the risk. Child-resistant packaging does not make dangerous contents child-proof. In contribution proceedings, the successful party is identified by substance and reality, not merely by comparing the parties’ percentage shares of liability. The court may ordinarily follow the usual costs rule once the successful party has been identified.

A child suffered serious injury after removing the cap from a bottle of caustic soda in a convenience store. The product was defective because its cap did not comply with the applicable child-resistant packaging standard. The manufacturer admitted liability to the claimants in full. Contribution proceedings between the retailer and manufacturer resulted in the retailer being held jointly liable for one-third of the responsibility and ordered to pay the manufacturer’s costs.

The retailer appealed both the liability apportionment and the costs order. The central questions were whether the Recorder had erred in finding foreseeability and breach of duty, and whether the manufacturer or retailer was the successful party in the contribution proceedings.

1. Appellate restraint. The appeal court’s function was to review, not rehear, the Recorder’s decision. The principles stated in Fage UK Ltd [2014] EWCA Civ 5 required respect for findings of primary fact, evaluative judgments and inferences unless material error was shown. The retailer’s arguments largely invited the court to re-argue the evidence and substitute its own assessment.
2. Foreseeability and breach. The relevant question was whether the risk would have entered the mind of a reasonable shopkeeper and would not have been dismissed as far-fetched. Applying the reasoning in Overseas Tankship (UK) Limited v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] AC 617, the clear warnings on the product were sufficient to put a reasonable shopkeeper on notice of the danger. The retailer could not rely on ignorance of licensing requirements or on the packaging being child-proof. Child-resistant packaging left a residual risk of access.
3. The Recorder was entitled to weigh the likelihood of injury, the catastrophic consequences of exposure, the social utility of selling caustic soda and the negligible cost of moving it to a higher shelf. On the facts found, the risk was more than negligible and the precaution was reasonable and practicable. The retailer was therefore in breach of duty.
4. The presence of a responsible adult did not remove the duty. Young children may take goods from shelves while a parent is shopping, without immediate detection. The authorities relied upon concerning parental supervision did not assist on the facts found.
5. Costs. Sonmez v Kebabery Wholesale Ltd [2009] EWCA Civ 1386 did not govern the different circumstances of contribution proceedings. Applying the substance-and-reality approach in Pindell Ltd v AirAsia Berhad [2010] EWHC 3236 (Comm) and Roache v Newsgroup Newspapers Ltd [1998] E.M.L.R. 161, the manufacturer was the successful party because it had undertaken the substantial liability to the claimants and obtained a contribution from the retailer. The Recorder was entitled to order the retailer to pay the manufacturer’s costs.
6. Both the substantive appeal and the costs appeal were dismissed.

1. High Court (Queen’s Bench Division): appeal from the decision of Mr Recorder Sephton QC in contribution proceedings. The Recorder found the retailer jointly liable, apportioned responsibility two-thirds to the manufacturer and one-third to the retailer, and ordered the retailer to pay the manufacturer’s costs. The High Court dismissed both appeals.