Rebecca Cassells (a minor) suing by her mother and next friend Martina Cassells (plaintiff/ appellant) v Marks and Spencer plc (defendant/ respondent).

Tort - Personal injuries - Duty of care owed by manufacturer and retailer - Liability for fire - Adequacy of fire warning on garment for children - Whether fire warning sufficiently clear - Industrial Research and Standards Act, 1961 - Science and Technology Act 1987.

The Supreme Court (Mr Justice Murphy, Mr Justice Murray and Mrs Justice McGuinness); judgment delivered 30 July 2001.

There was no requirement for children's day clothes, of whatever material, to meet any particular flammability standard or to carry any label warning against fire. The warning required by the regulations as to children's night wear was, in the terms "keep away from fire" a sufficiently clear warning to carers that a child wearing the garment to which the warning was attached should be kept away from unprotected fire.

When a purchaser was presented with such a warning label the only logical reaction was to keep the garment away from fire, regardless of its nature or the material of which it was made.

The Supreme Court so held in dismissing the plaintiff's appeal and upholding the order of the High Court.

Dominick Hussey SC and Grace Mulherin BL for the appellant; Rory Brady SC and David Barniville BL for the respondent.

Mrs Justice McGuinness said that this was an appeal from the judgment and order of the High Court dismissing the infant plaintiffs claim for damages in respect of personal injuries which had resulted from an incident in which the dress which she was wearing caught fire.

The plaintiff was born in 1989 and resided in Navan. In September 1994 the plaintiff's mother had purchased a cotton day dress for the plaintiff at the defendant's retail store at Brixton. In May 1995 the plaintiff was wearing that dress at home where her mother had lit the fire which had no fireguard. The plaintiff went to turn on the television while her mother left the room briefly to go upstairs. The plaintiff's mother heard screaming and ran downstairs to find the child with the back of her dress in flames. She managed to extinguish the flames but 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.

Mrs Justice McGuinness said that the dress was made of 100% cotton material and 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 letters "IN THE INTEREST OF SAFETY IT IS ADVISABLE TO KEEP YOUR CHILD AWAY FROM FIRE". That same warning was repeated in smaller red capital letters on the other side of the tag in English and three other languages.

The High Court rejected the plaintiff's contention that the defendant had been 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. The present appeal concerned only the adequacy of the warning given by the defendant that the dress should be kept away from fire.

Mrs Justice McGuinness said that the evidence adduced had 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, namely, 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. However, she said that these regulations as to flammability applied only to nightwear and there were no regulations of this type relating to children's day wear.

Despite the fact that there were no regulations covering children's day wear the defendant had given 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 fell 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 and the wording of the warning "keep away from fire" given on the permanent label sewn into the dress was in conformity with the wording required for children's nightwear both in the United Kingdom and in this jurisdiction.

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. Following a consideration of the relevant case law in regard to the adequacy of the fire warning, he 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 night wear.

Mrs Justice McGuinness said that in this jurisdiction, the mandatory regulations regarding flammability and labelling of children's nightwear were 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 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.

Where children's night clothes complied with the flammability requirements of clause 5 of the standard they had to bear labels stating "low flammability to I.S: 148". Children's pyjamas and bath robes, which did not have to meet the flammability requirements of clause 5 had to, under clause 6, bear a warning label in red letters with the words "KEEP AWAY FROM FIRE".

There was 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 had 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.

It appeared 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.

Mrs Justice McGuinness referred to two cases opened to the court as the most relevant. Both in Duffy v Patrick Rooney and Dunnes Stores (Dundalk) Ltd (Supreme Court, 23 April 1998, unreported) and in O'Byrne (a minor) v Brendan Gloucester and Others (Supreme Court, 3 November 1988, unreported) children were badly burnt as a result of their clothes catching fire where the garment in question did not 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 present case the defendant, Marks and Spencer, acknowledged the duty of care owing to the plaintiff. It also accepted 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 the standards set in the Duffy case.

Mrs Justice McGuinness said that she agreed with the learned High Court judge that the warning required by the regulations as to children's nightwear was in its terms "keep away from fire" a sufficiently clear warning to carers that a child wearing the garment to which the warning was attached should be kept away from unprotected fire. She said that such a warning clearly indicated that the garment was made of flammable material and that otherwise there would be no need for the warning. Different materials had different properties when exposed to fire; it was well known that some emitted fumes; others melted and might adhere to the flesh causing severe burns; others, like cotton, burned rapidly. When a purchaser was presented with a warning label "KEEP AWAY FROM FIRE" the only logical reaction was to do precisely that, regardless of the nature of the particular garment or the material of which it was made.

Mrs Justice McGuinness said that it was tragic that the plaintiff suffered serious injury but, unfortunately, it was a fact of life that in spite of reasonable care on the part of parents and retailers, such tragic accidents did happen. Accordingly, Mrs Justice McGuinness dismissed the appeal and affirmed the order of the High Court.

Mr Justice Murphy and Mr Justice Murray concurred.

Solicitors; Maurice Leahy & Co., (Dublin), for the appellant; Miley & Miley (Dublin), for the respondent.

Gillian Reid

Barrister