THE HIGH COURT
		1992 No.  3439p
BETWEEN
AMY DUFFY, A MINOR, SUING BY HER FATHER AND 
NEXT FRIEND BERNARD DUFFY
		PLAINTIFF
AND
PATRICK ROONEY AND DUNNES STORES (DUNDALK) LIMITED
		DEFENDANTS

Judgment of Miss Justice Laffoy delivered on the 23rd day of June 1997

THE FACTS IN OUTLINE
	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.
	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.

	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.
	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.
	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.
	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. Duffy managed 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.
	The coat Amy was wearing had been purchased by her grandmother, 
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".
	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.  
	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.
	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
	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?
	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.

	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."

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.
	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.
	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?
	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.
	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.
	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.
	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.
	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.
	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 
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.
	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.
	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.
	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, 
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, 
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.
	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.
	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.
	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 
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.  
	The evidence establishes that since approximately the end of 1992 to the present day, the Group puts warning labels on all children's garments.
	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."

	In applying the standard of the "reasonable man" to different factual scenarios, varying factors and considerations emerge.
	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'."

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.
	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."

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'."
	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.
	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."

	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."

	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.
	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.
	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
	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.
	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.
	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.  
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.
	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 
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
	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
	The medical evidence adduced on behalf of the Plaintiff was not contested.  
	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 
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."

	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.
	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.
	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.