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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

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:

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:

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):

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.

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:-

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:-

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):-

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.