Neutral Citation Number: [2018] EWHC 1111 (QB)
Case No: B53YJ319/M17Q138
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Manchester Civil Justice Centre
1 Bridge Street West, Greater Manchester,
Manchester, M60 9DJ

Date: 10/05/2018

Before:

MRS JUSTICE YIP DBE
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 Between:

	(1) Saira Faisal
(2) Ayman Faisal	
Claimants	
	
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	Mr Younis t/a Safa Superstore

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Active Brands Concept Ltd
	1st Defendant/
Appellant

2nd Defendant/
Respondent	

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Mr Watt-Pringle QC (instructed by BLM LLP) for the 1st Defendant/Appellant
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
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Approved Judgment
Mrs Justice Yip: 
1.	This is an appeal against a decision of Mr Recorder Sephton QC (as he then was), apportioning liability in contribution proceedings between the two defendants in a personal injury claim.  The appeal is brought by the first defendant, whose position throughout has been that liability should rest solely with the second defendant.
2.	The claim arose out of an accident at the first defendant’s convenience store on 13 January 2013.  The second claimant went into the store with her son (the first claimant) who was then aged two-and-a-half, in his pushchair.  The boy was able to get hold of a bottle of caustic soda, remove the cap of the bottle and put some of the contents into his mouth.  This caused him serious injury.  In assisting him, his mother sustained chemical burns.
3.	The product was manufactured by the second defendant.  It is not in dispute that the container was defective.  The bottle required a child-resistant cap, complying with ISO 8317.  However, the cap in question did not comply and could easily be removed by a toddler. 
4.	The claim was initially issued against the first defendant alone, but the second defendant was subsequently joined by the claimants.  Once investigations were complete, the second defendant admitted liability to the claimants in full.  The first defendant continued to deny liability but made a contribution to the claimant’s costs (without admission) so that the main action could be resolved.  The parties issued contribution proceedings against each other.  Defences were served in the contribution proceedings.  The first defendant denied liability to contribute in any way.  The second defendant’s position was set out in simple terms in paragraph 2 of its defence:

“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.”
5.	It was on that basis that the claims for contribution between the defendants were tried by the Recorder.
6.	In a clear and concise reserved judgment, the Recorder concluded that the first defendant was jointly liable with the second defendant and apportioned responsibility on the basis that the second defendant should bear two-thirds and the first defendant one-third.  After hearing submissions, he ordered that the first defendant should pay the second defendant’s costs of the contribution proceedings on the basis that it was the second defendant who was the true “winner”.
7.	The first defendant appeals against the substantive decision and the costs order.  He contends that it was wrong to find that he was liable for the accident.  There are six grounds in relation to the substantive appeal.  In summary, it is contended that the Recorder was wrong in law and on the basis of the evidence to find that the accident was foreseeable to the first defendant; he erroneously treated the advice on the label to “keep out of the reach of children” as though it were a “mandatory statutory requirement”; he should have found that the first defendant complied with a common practice in storing caustic soda and other cleaning products on the bottom shelf and that he was entitled to rely upon children being supervised by a responsible adult.  In relation to the costs order, it is contended that, as the second defendant was required to contribute twice as much as the first defendant, the second defendant should pay his costs.
8.	Since this case comes to me within the appellate jurisdiction, I am, of course, confined to a review of the trial judge’s decision.  I am reminded of what the Court of Appeal said in Fage UK Ltd [2014] EWCA Civ 5 per Lewison LJ [114]:
“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.”
9.	Mr Rowley QC says that all six reasons for the approach resonate in this case.  He suggests that the way in which the appeal was argued is, in reality, an attempt to re-argue points lost in the court below and to treat the trial as a dress rehearsal rather than the show itself.  There is some force in that.  Mr Watt-Pringle QC was keen to take me to the evidence rather than focusing on the Recorder’s judgment.  At times, his submissions had the flavour of those to be expected at first instance rather than on an appeal.  I remind myself that I am not making the decision afresh but am reviewing the Recorder’s judgment to see whether any material error is identified.
10.	The Recorder’s judgment was well-structured.  He began with an uncontroversial introduction, before identifying that:
“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.”
11.	He then summarised the facts, starting with a description of the product.  He noted that caustic soda is a corrosive alkali and quoted from the labelling on the package which warned that it could cause severe burns and should be kept out of the reach of children.  It is a product to which the Poisons Act 1972 applies.  It is unlawful to sell it without a licence.
12.	The Recorder referred to the requirements for child resistant packaging, quoting ISO 8317.  Within the extract from the Standard, it is noted that strongly acid or alkaline preparations are amongst those products associated with the more serious cases of ingestion by children.  By contrast, most commonly used household detergents and cleaning agents are not on the list of products which have caused injury.  Having reviewed the specific requirements for child-resistant packaging, the Recorder fairly summarised the position:
“(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.”
13.	Next, the Recorder made important factual findings about the first defendant’s store.  The store had narrow aisles and heavily stocked shelves.  The first defendant did not want prams in his shop, partly because they tended to knock goods off the shelves.  Children were frequently present in the shop; sometimes they were badly behaved and escaped the control of their parents.
14.	The Recorder noted that the first defendant had worked in the store for about 10 years and before that in another shop.  Caustic soda had always been displayed on the bottom shelf.  The first defendant did not know he needed a licence.  His name was not on the local authority’s list and it was therefore unlawful for him to sell it.  He had not read the label or packaging and did not know it should be kept out of the reach of children.  The first defendant said that Trading Standards had visited his store and had not commented on the way caustic soda was displayed.  He said all stock was checked for leaks or damage before being put on the shelves.
15.	The first defendant told the Recorder that had he known how dangerous the product was he would have checked that the tops of the packaging fitted properly.  He denied he would have moved the caustic soda to a higher shelf.  However, the Recorder rejected that.  He noted his impression that the first defendant was a sympathetic man who would do what was right.  Moving the caustic soda to a shelf out of the reach of young children would have cost him nothing and required very little effort.  This finding was plainly within the remit of the trial judge and is unchallenged.
16.	The Recorder then summarised the accident circumstances and the subsequent investigations.  He concluded that the first claimant had taken the caustic soda from the shelf as his mother reached for kitchen roll on a higher shelf.  The hood of his pushchair was up so she did not notice anything until she heard her son scream.  The child had been able to get the top off easily and did so in the short period between Mrs Faisal picking up the kitchen roll and heading to the checkout.
17.	The next part of the Recorder’s judgment dealt with the first defendant’s reliance upon evidence said to establish that it was common practice for caustic soda and other cleaning products to be stored on the bottom shelf.  This is the first paragraph in the judgment to be specifically challenged.  It is said that the Recorder made an error of law.  I was referred to Clerk & Lindsell 8-176: “conformity with common practice is prima facie evidence that the proper standard of care is being taken.”
18.	In fact, the challenge is not an attack on the Recorder’s application of the law but to his findings of fact.  The Recorder rejected the submission that the evidence before him established that it was common practice to display caustic soda on the bottom shelf of retail outlets.  Having seen the evidence relied upon, including the transcripts of the relevant witnesses’ cross-examination, I have no doubt at all that the Recorder was entitled to make the findings that he did. 
19.	Mr Watt-Pringle QC complains that the second defendant bore the burden of proof yet served no evidence as to the usual practice in shops and supermarkets.  However, this was not necessary. The second defendant’s position was based on the facts of this case.  It was the first defendant who sought to rely on common practice, by way of defence.  The judge found that the evidence on this issue was based on a small sample of shops in and around London and was not random.  He was entitled to do so.  In as much as the complaint is about the weight given to the evidence that caustic soda could be found on lower shelves in some other shops elsewhere, that is a matter of judgment for the trial judge.  
20.	Mr Watt-Pringle QC does not challenge any of the factual findings made by the Recorder but contends that he left relevant considerations out of account, or failed to give them sufficient weight, when addressing the issue of foreseeability.  The points that are relied upon relate to evidence that the particular product had been sold for over 10 years at a rate in the region of 1 million bottles per year but the second defendant had never experienced any issues of this kind before.  There was no evidence of any similar incident occurring in a shop previously.  The first defendant had been stocking it on the lower shelf for many years.  There were no statutory regulations or guidelines advising against shopkeepers displaying caustic soda or other harmful cleaning products on lower shelves.  Further, Trading Standards had visited the store and made no comment about the caustic soda and where it was displayed.
21.	Except for the specific evidence (contained in an email read to the court) about the number of bottles of the product supplied over the years, all relevant evidence was referred to in the Recorder’s judgment.  The judge plainly fully appreciated the first defendant’s argument that this was a common product and that there had been no reported incidents of ingestion occurring in shops before.  It was not necessary for the Recorder to refer to each and every piece of evidence relied upon in support of that argument.  He appropriately summarised the thrust of the first defendant’s submissions.  It is clear that many of the submissions advanced before me were repeating the arguments at trial.  The weight to be given to the various considerations relied upon was very much a matter for the trial judge who had “the whole sea of evidence”.  There is a real danger in picking out elements of the evidence for detailed consideration on appeal of falling into the trap of “island hopping” identified in Fage.
22.	The central issue for the Recorder was foreseeability.  Mr Watt-Pringle QC complains that the Recorder failed to properly apply the test for foreseeability, as restated by the Court of Appeal in Whippey v Jones [2009] EWCA Civ 452.  Both parties also referred to Overseas Tankship (UK) Limited v The Miller Steamship Co Pty (“The Wagon Mound (No.2)”) [1967] AC 617.  Mr Watt-Pringle QC contends that the circumstances were such that the Recorder could not properly conclude that there was a “real risk and not a mere possibility” of injury to a young child.  It seems to me that, despite the fairly lengthy grounds of appeal, this is really the nub of the substantive appeal.
23.	In looking at what constitutes a “real risk and not a mere possibility”, it is instructive to look at Lord Reid’s comment in The Wagon Mound at the bottom of page 643:
“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.”
24.	The risk must be something that would enter the mind of a reasonable man in the defendant’s position.  Here, that is a reasonable shopkeeper, selling a product covered by the Poisons Act.  It is no defence for him to say that he did not know that doing so required a licence.  A responsible shopkeeper ought to know of licence requirements for any products he sells.  The Recorder found that “the clear warnings contained on the label were sufficient to put a reasonable shopkeeper on notice of the risk.” 
25.	Mr Watt-Pringle QC relies upon photographs of other common cleaning products which he said contained similar warnings.  He suggests these are warnings for the householder rather than directed at shopkeepers.  The warnings on this bottle therefore would not have brought home to the first defendant that this product was particularly dangerous.
26.	I thought at first that there was some force in this argument.  Mr Watt-Pringle QC submitted that this case is of some potential significance to other retailers if it is to be taken as authority that no products marked “keep out of the reach of children” can ever be stored on a lower shelf.  However, this is emphatically not what the Recorder’s judgment says.  At paragraph 25, the Recorder said:
“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.
27.	There are features that distinguish the labelling of this product from things like household bleach.  The comparison that Mr Watt-Pringle QC invites me to draw with other products again invites me to step into the role of the first-instance tribunal.  I have now seen the transcript of the first defendant’s cross-examination.  It is fair to say that Mr Rowley QC’s questioning obtained some significant answers.  By way of example:
“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”.  
28.	The Recorder concluded at paragraph 28 that “the clear warnings contained on the label were sufficient to put a reasonable shopkeeper on notice of the risk.”  In my judgment, he was entitled to make that finding on the evidence before him.  The Recorder noted that Mr Younis had accepted in cross-examination that packaging sometimes gets damaged and that in itself ought to have led him to appreciate that there was a danger that children could be exposed to the contents.  These are essentially factual findings as to what the first defendant would have understood had he read the label.  It does not follow that the Recorder was treating the warning to “keep out of reach of children” as though it were a “mandatory statutory requirement”.
29.	I admit that I do not necessarily agree with the Recorder’s suggestion that the first defendant might have asked his supplier about the packaging and, through that enquiry, learned that it was child-resistant and not child-proof.  However, I agree with Mr Rowley QC when he said that a ‘blue pencil’ could be taken to that part of the judgment without affecting its substance.  The real point is that the first defendant was not able to rely absolutely on the packaging being secure.  His own evidence made it clear that he would not have done so had he known the product was dangerous.  He said that, had he known the product was so dangerous he would have checked the lids were secure before putting the product on the shelf.  The Recorder found that it would not have been reasonable to expect him to do this as it would be too onerous but that the simple precaution of putting it out of reach on a higher shelf would have rendered that unnecessary.  
30.	In my judgment, the Recorder was entitled to conclude on the evidence before him that the risk was one that should have occurred to a reasonable shopkeeper.  
31.	Dealing with breach of duty, the Recorder properly considered the relevant authorities at paragraphs 33 to 38 of his judgment.  He then directed himself to consider, and give appropriate weight to the following factors:
“(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.”
32.	No complaint is made about the Recorder’s interpretation of the legal principles, nor could there be.  Applying those principles, he said:
“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.”
33.	The Recorder also considered the first defendant’s submissions based on Ryan v London Borough of Camden (1983) 8 H.L.R. 75; Glasgow Corporation v Taylor [1922] 1 AC 44 and Phipps v Rochester Corporation [1955] 1 QB 450 that the first defendant was entitled to rely upon parents or other responsible adults to protect children from danger in the shop.  It is right of course that young children would not be expected to go into the shop unaccompanied.  However, it seems to me that it is a fact of life that children do take things off shelves while their parents are shopping and that this will not always be noticed immediately.  Mr Watt-Pringle QC sought to rely upon inferences as to what Mrs Faisal knew about where the caustic soda was stored.  However, she did not give evidence, and this therefore involves speculation.  
34.	Once the judge had made the findings that he did, I do not consider that Ryan v Camden was of any real assistance to the first defendant.  The judge noted the evidence of Mr Younis that sometimes children were badly behaved in his shop and there were occasions when they escaped from the control of their parents and “scarpered” through the shop.
35.	Having considered the judgment in detail, I agree with Mr Rowley QC that, however the grounds of appeal are dressed up, they are in reality an attempt to re-open the issues and to invite this court to substitute a different judgment for the Recorder’s.  That is impermissible.  The Recorder reached a decision that he was entitled to reach, applying the correct legal principles to the evidence placed before him.    
36.	This was a decision on its facts.  Relevant findings included that the shop had narrow aisles and heavily stocked shelves and it was known that it was tricky to get prams around.  Children were often in the shop and sometimes were not kept under their parents’ control.  It was unlawful for the first defendant to sell caustic soda without a licence, but he did not know that.  He had not read the packaging.  Had he done so he would have realised it was “strong stuff” and not a normal household cleaner.  On the facts as found, a dangerous product which should have been kept out of reach of children was being stored somewhere children could reach.  It could easily, and without cost, have been put on a higher shelf.  There was nothing to suggest that was not practicable or reasonable.  Although what happened was an unlikely occurrence, the risk of exposure to the product was more than negligible.
37.	Having reached the conclusions that I have, I think it is worth noting that Martin Spencer J refused permission to appeal on the papers, expressing the firm view that the Recorder was entitled to reach the decision that he did.  It will have been apparent, not least from the fact that I was persuaded to grant permission at the oral reconsideration hearing, that I have applied my own judgment to the appeal and that I regarded the arguments as more finely balanced.  However, having seen the transcripts of the oral evidence before the Recorder, I also consider that this was a decision plainly open to the Recorder.  There is, in my judgment, no proper basis for overturning the decision that the first defendant was liable to contribute to the claimants’ claims.
38.	I turn to the costs appeal.  The first defendant contends that the order was wrong in principle in that each defendant had claimed against the other and that, since the second defendant was to contribute twice as much towards the claims as the first defendant, “By any standards, Mr Younis had won the argument over apportionment.”  
39.	The first defendant contends that the Recorder’s order that the first defendant should pay the second defendant’s costs was inconsistent with the Court of Appeal’s decision in Sonmez v Kebabery Wholesale Ltd [2009] EWCA Civ 1386.  That case concerned the application of the general rule that costs follow the event where a defendant in personal injury litigation admitted primary liability but raised contributory negligence and where the defendant’s Part 36 offers were closer than the claimant’s to the eventual apportionment of liability.  The Court of Appeal, following the earlier decision of Onay v Brown [2009] EWCA Civ 775, concluded that the claimant was the successful party.  The issue of contributory negligence was not to be treated as a separate issue which one party won and the other party lost.  The claimant having therefore obtained judgment for a percentage of his damages to be assessed had been successful and was entitled to his costs.
40.	It is immediately apparent that this case does not arise from the same factual situation and it cannot be right to say that the Recorder was bound to follow it by applying it to a different scenario.
41.	Here, the second defendant admitted that it was liable to compensate the claimants and had agreed to do so in full.  Although not yet quantified, it is apparent this is a high value claim.  The first defendant denied any liability to contribute to the claimants’ claim.  He made a payment relating to the claimants’ costs but on the basis that this carried no admission and that he would recover those costs from the second defendant if the court determined that he was not liable to the claimants.  It was in those circumstances that the Recorder had first to decide who was the successful party in relation to the additional claims (rather than the main action).  
42.	In Pindell Ltd v AirAsia Berhad [2010] EWHC 3236 (Comm), Tomlinson LJ said:
“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.”
43.	In Roache v Newsgroup Newspapers Ltd [1998] E.M.L.R. 161, CA Sir Thomas Bingham MR said:
“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?”
44.	Applying that test to the particular facts, the Recorder was not wrong to say that the second defendant was the successful party.  It would be wrong to look at how the claimants’ claim was being apportioned between the defendants and to say that the first defendant had ‘won’ because his share was smaller.  The second defendant had agreed to meet the claimants’ claim and in doing so had incurred a large liability.  The second defendant sought and achieved a contribution to that liability.  In money terms, it is clear that such contribution will be worth more than the contribution the second defendant is to make to the costs paid by the first defendant.
45.	In a footnote to his skeleton argument, Mr Watt-Pringle QC complains that the Recorder was unwilling to accept that Mr Younis had an Additional Claim against Active Brands.  When the draft judgment was circulated, he apparently objected to the Recorder’s description of the issue as set out in paragraph 10 above.  However, I note that the second defendant had always accepted that the costs paid by the first defendant should be subject to the same apportionment as the contribution to the claim which it sought.
46.	The Recorder had the benefit of seeing exactly how the parties put their respective cases at trial.  I note that the apportionment between the defendants occupies relatively little space in the judgment.  Mr Rowley QC told me that it also took up little time during the trial.  I consider it perfectly fair to say that in the particular circumstances of this case, it was the second defendant who succeeded in the contribution proceedings as a matter of substance and reality.
47.	Having determined that the second defendant was the successful party, it was plainly within the Recorder’s discretion to simply follow the usual rule that the unsuccessful party pay the successful party’s costs rather than making any other order or adjustment to the standard order.  Indeed, no other grounds of appeal are identified in relation to the costs order.  
48.	In all the circumstances, both the substantive appeal and that in relation to costs fail and will be dismissed.