QUEEN'S BENCH DIVISION
1 Bridge Street West, Greater Manchester,
Manchester, M60 9DJ
B e f o r e :
| (1) Saira Faisal
(2) Ayman Faisal
- and –
|Mr Younis t/a Safa Superstore
- and –
Active Brands Concept Ltd
Mr Rowley QC (instructed by DWF LLP) for the 2nd Defendant/Respondent
The Claimants were not party to the appeal
Hearing date: 26 April 2018
Crown Copyright ©
Mrs Justice Yip:
"if, as the 2nd Defendant maintains, the 1st Defendant was a joint tortfeasor, both Defendants will be entitled to such contributions as are just and equitable from each other."
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also the evaluation of those facts and to inferences to be drawn from them. … The reasons for this approach are many. They include
i. The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii. The trial is not a dress rehearsal. It is the first and last night of the show.
iii. Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv. In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v. The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi. Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
"The trial before me was to determine what contribution, if any, the first defendant should make to the second defendant's liability to the claimants."
"(a) Child-resistant packaging is not child-proof; there is a risk that young children can access dangerous substances contained in such packaging.
(b) Consequently, other measures to protect young children from dangerous substances need to be taken to minimise the risk that the children will be harmed; such measures might include safe storage practices."
"If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant's servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense."
"I make no findings about how a shopkeeper ought to treat other products (for example, household bleach), but nothing in this judgment should suggest that a shopkeeper can afford to ignore a label that states, "Keep out of the reach of children."
This was not as Mr Watt-Pringle QC asserted "the lynchpin" of the judgment. The Recorder's comment was an appropriate one intended, in my judgment, to make it clear that the scope of the judgment was limited to the facts of this case and the particular product involved. I agree with that approach.
"Q. If you look at the top of the label on the back, it's quite clear that this isn't an ordinary cleaning product, and it's strong stuff, because it only takes a tenth of a bottle to clean a drain, and a fifth of a bottle mixed with water to unblock a drain.
A. Yes, I know that now because I've read it, but at that time, I did not read it and I did not know."
Of course, the Recorder had the advantage of seeing and hearing this evidence first-hand. Even based upon the transcript, it is difficult for the first defendant to argue that the warnings on the label did not highlight the risk. He appeared to concede that the label was sufficient to distinguish this product from ordinary cleaning products and to allow him to appreciate that it was "strong stuff".
"(a) The likelihood of injury.
(b) The consequences if the foreseen event occurs.
(c) The social value of the activity giving rise to the risk.
(d) The cost of preventative measures."
"I find that the likelihood of injury to a young child is small, since caustic soda is presented in child resistant packaging; however, there is a non-negligible risk that the child will be exposed to the dangerous substance owing to a fault in the packaging or owing to the fact that the packaging is child resistant and not child proof (so there is always a risk it might fail). The consequences, should the child come into contact with caustic soda, are catastrophic; as the present case demonstrates. There is clearly social utility in having caustic soda available to clean and unblock drains, but this factor has little significance in the context of what duty is owed by a shopkeeper to small children in his shop. The cost of preventative measures, specifically moving the product to a higher shelf, is almost zero. In my judgment, the first defendant owed the claimants a duty of care, and in his failure to take reasonable precautions, he was in breach of that duty."
"The first step therefore is to identify who is the successful party. It is surprising how often this is in itself a contentious enquiry. No doubt this reflects the multifarious circumstances in which modern litigation takes place, and its complexity."
"The judge must look closely at the facts of the particular case before him and ask: who as a matter of substance and reality has won?"