THE HIGH COURT
									1996 No. 1205p
BETWEEN

REBECCA CASSELLS (A MINOR) SUING BY HER MOTHER
AND NEXT FRIEND, MARTINA CASSELLS
									PLAINTIFF
AND
MARKS & SPENCER PLC.
									DEFENDANT

Judgment delivered the 25th day of March, 1999 by Mr. Justice Barr.

	THE FACTS

	The facts of this case are essentially undisputed and I find them to be as follows:-
	The plaintiff (Rebecca) was born on 27th September, 1989.  She is now 9 years old and is small for her age.  She lives with her mother (Mrs. Cassells) in a two-storey dwellinghouse of modest size at Navan, Co. Meath.  Before coming to reside in Ireland late in 1994 the family lived in Brixton, London.  In September of that year Mrs. Cassells went shopping with Rebecca and bought her a cotton day dress at the defendant's retail store in Brixton for £14.99.  The child was then 5 years old and the dress was labelled as being suitable for children of 3 to 4 years.  It fitted the plaintiff but because of her height the hem was halfway down her shins.  The dress was made of light cotton and it was a classic design which has enjoyed wide popularity for many generations.  It was three feet five inches in height.  The upper part in front comprised smocked hand stitching.  The waist was close fitting with half ties which were made up in a bow at the back.  The skirt was flared all round.  The hem would have been several inches out from Rebecca's legs in all directions and about three or four inches above her ankles.
	At 5.30 p.m. on 24th May, 1995 Rebecca and her mother returned home.  The child was wearing the dress, a light cardigan and usual underclothes.  She told her mother that she felt cold.  They entered the living room where there is a typical open domestic fireplace comprising an enclosed fuel basket on a raised hearth.  Mrs. Cassells had set the fire earlier that day.  It comprised coal, chemical firelighters and some paper.  She lit the fire by igniting a firelighter.  There was no fireguard.  Mrs. Cassells left the room and went upstairs to collect an item of clothing from her bedroom.  At that time Rebecca was turning on the t.v. which was under a window five or six feet from the fireplace.  Mrs. Cassells believes that she was out of the living room for at most three minutes.  As she was leaving the bedroom on her way downstairs she heard Rebecca scream loudly.  She ran down the stairs and found the child in the middle of the kitchen which is off the living room.  The back of her dress was in flames, mostly on the left side.  She lifted the child up; put her into the kitchen sink; turned on the cold tap and doused the flames.  She had suffered severe extensive burns involving the upper leg and buttock on the left side, the back, the left armpit and left upper arm.  The flames had travelled from the hem of the dress on the left side and had singed her hair.  I am satisfied that Mrs. Cassells reached Rebecca within ten seconds from hearing her cry out.
	In the light of the foregoing facts the probability is that, having turned on the t.v., Rebecca went over to the fire to warm herself and stood with her left side nearest the flames as she watched the television.  It is evident that the hem of her flared skirt on that side caught fire and the flames spread rapidly upwards.  It is likely that as soon as she became aware that her dress was on fire, or at least when she began to feel pain from burning, the child screamed and ran towards the kitchen where she was rescued by her mother a few seconds later.  That scenario establishes that the cotton material comprised in the dress was highly flammable and a source of immediate danger for a child wearer if exposed to fire. 

	THE DRESS

	When purchased it was on a hanger which stated that it was for age 3-5 and three ft. five inches (104 cm) in height.  Inside there was a hanging tag stitched at one end into a seam.  It contained  a message on both sides.  On one it stated that the garment was 100% cotton and washing instructions were indicated by means of symbols.  On the other side it stated, inter alia, the age range and certain dimensions of the dress.  Beneath panels containing the latter information was a warning in red capital letters "KEEP AWAY FROM FIRE" in English and three other languages.  The tag was intended to be a permanent part of the dress.  It is probable that attached to it while on display in the shop were two cardboard tags of significant size which hung below the hem of the dress and were intended to be removed after purchase.  One contained a bar code.  It referred again to the age range and to the height of the dress.  The other tag which was approximately one and a half inches wide by two inches long, contained on one side a warning in large red capital letters "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 that she saw the permanent tag and was aware of the warning "KEEP AWAY FROM FIRE".  She does not recall seeing the other two cardboard tags but the probability is that they would have been appended as described in accordance with normal practice in the defendant's shops.  Mrs. Cassells also conceded that she should have fitted a fireguard after she lit the fire and that children should not be left unaccompanied in a room with an open fire.  Her intention had been not to leave Rebecca alone for long but to return to the child immediately after she had collected the garment from her bedroom upstairs.

	THE DEFENDANT

	The defendant company is long established as one of the leading retailers of children's clothing in the United Kingdom and Ireland.  Its brand mark "St. Michael's" which applies also to adult clothing and other goods is a household name which has long enjoyed a high reputation for quality and value.  The particular dress in question has had great popularity for many years and a huge quantity of them have been sold in the defendant's retail stores throughout the U.K. and also in Ireland.  The dress was purchased by the defendant from Dewhurst, a long established company, which is one of the top three suppliers in the U.K. clothing industry.  The fabric was made by a company in Taiwan.  The dress was made in the Philippines and that work included hand smocking.  The intrinsic quality of the garment is not in issue. 
	It has been a requirement of law in the United Kingdom since 1955 that children's nightwear (excluding pyjamas, bathrobes made of terry-towelling and baby wear) must conform to a specified minimum flammability standard - see The Nightwear (Safety) Regulations, 1985 (1985 No. 2045) which replaced earlier regulations essentially to the same effect.  There are similar regulations in this jurisdiction - see 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.  The regulations lay down a method for testing the flammability of a material.  A length of cloth measuring 600 millimetres is fixed in a frame.  There is also a marked intermediate distance at 300 mm. from the base.  The bottom of the material is ignited in a particular way; the ignition is removed and the time taken for the flame to reach the 300 and 600 mm. distances are recorded.  In order to pass the test the flame must take not less than twenty-five seconds to reach the 300 mm. mark and fifty seconds in all to reach the 600 mm. distance mark.  Cotton of the lighter varieties, including that used in Rebecca's dress, is highly inflammable and will not achieve the required standard unless treated with a chemical fire retardant.  That requirement adds to the expense of the manufacturing process.  There are adverse factors associated with the use of fire retardant chemicals including skin irritation; loss of fabric strength and a less comfortable feel.  However, the greatest difficulty is that the fire retardant process has been found to be unreliable.  It has been the defendant's practice to have independent spot tests carried out on children's nighties to ensure that they conform to the official regulations.  The number of instances where such garments did not conform to the required standard is such that in 1998 the defendant decided to discontinue retailing children's nighties as they could not be sure that all such garments would conform to the regulations and they might be liable to prosecution on that account.  One major manufacturer of chemical fire retardant for textiles, Ciba Geigy, has discontinued making the product.
	The regulations as to the flammability of children's nightwear appear to reflect an official recognition that nighties which are usually ankle length flowing garments are particularly vulnerable to catching fire if exposed to flame and to the fast spread of fire in that event.  They are intended for wear within the home where domestic fires and some electrical and gas heating appliances may present such risks.  The regulations seek to meet that hazard by providing a minimum flammability test and also a requirement that such garments must contain a fire warning in terms of that specified in the permanent tag appended by the defendant to Rebecca's dress.  
	There are no regulations relating to children's day wear.  However, the defendant company recognises that certain light materials if used for that purpose may be so inflammable as to constitute what they perceive to be an unacceptable risk for children.  With that in mind, but also having regard to the commercial reality that none of their competitors apply any such standard, they have introduced a minimum requirement as to flammability in respect of materials used in children's day wear sold by them (the M&S standard).  It falls substantially short of the flammability standard required by the British and Irish children's night-gown regulations and it does not necessitate the use of any fire retardant chemicals.  The defendant has also introduced permanent fire warning labels for day wear garments similar in nature and wording to those required by the official regulations for night attire.  In addition, there is the hanging cardboard tag to which I have referred containing a more detailed fire warning in larger capital letters then in the permanent label.
	The material comprised in Rebecca's dress exceeded the M&S standard which lays down a minimum fire spread of 14 seconds up to the 600 mm. marker. .  However, on testing it has been found that there is a crucial disparity between its flammability and that required by the official regulations for children's night attire (other than excluded garments).  When the dress was tested the flame reached the 600 mm. marker in 22.1 seconds, i.e., 27.9 seconds faster than the minimum time permitted under the regulations.  It is reasonable to conclude that if the dress had been treated with the fire retardant chemical required for children's nighties Rebecca would have been rescued by her mother long before the flames spread to the top of the dress and her injuries probably would have been substantially less severe.
	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 M&S standard of flammability for children's day wear and none had any fire warning label.  It has been established in evidence 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.  Notwithstanding its commendable practice in introducing a minimum flammability test which excludes a range of very light weight materials which it is perceived constitute an unacceptable fire hazard for children, is the defendant's belief that it has done all that might reasonably be required of it in that regard in the marketing of Rebecca's dress well founded?  That is the primary question which the court must determine.  The claim which has been pursued at the hearing is based solely on negligence at common law.  An alternative claim on foot of the provisions of the Liability for Defective Goods Act, 1991 has not been argued. 

	THE LAW
	In essence the plaintiff's case may be summarised as follows:-

1.	The defendant is and was well-aware that light cotton material in day dresses (such as Rebecca's dress) intended for young children is highly flammable and, unlike some comparable synthetic fibres used in such clothing, flame will spread rapidly even after the material is removed from the source of ignition.
2.	The M&S voluntary standard of flammability is insufficient to provide children with reasonable protection against injury by fire through the ignition of day wear dresses such as that worn by Rebecca.  It is urged, and I accept, that the facts of this case expose the inadequacy of the M&S standard in practical terms. 

3.	The duty of care in negligence owed by the defendant to Rebecca and other children for whom such dresses were sold, includes an obligation to provide the wearers with reasonable protection against the risk of burning through use of the fire retardant chemicals as required by the special regulations for children's night-dresses in the United Kingdom and in this jurisdiction or, alternatively, to attach a warning to such dresses which is sufficient to put on notice the carers of children for whom such garments are bought that they constitute a fire hazard.

4.	It is urged that having regard to the flammability of light cotton, either the defendant ought not to have marketed a dress for young children (such as that sold for Rebecca) which because of its long flared skirt was vulnerable to fire in the same way as a child's cotton nightie is at risk unless treated with a suitable fire retardant chemical; or if not so treated, a written warning in sufficiently cogent terms should have been appended to the dress.

	It is common case that the fundamental issue which has to be decided in this action is whether in all the circumstances the defendant exercised reasonable care in the marketing and sale of the garment in question.  However, it must be borne in mind that the duty owed by the defendant to Rebecca was reasonable not absolute care for her safety.
	As to the first aspect of the case made on behalf of the plaintiff that the type of light cotton dress supplied to Rebecca was potentially so unsafe in the context of fire hazard that it ought not to have been marketed by the defendant unless treated with a chemical flame retardant or had the benefit of a sufficiently explicit fire warning.  Reliance is placed on the fact that Rebecca's dress was essentially similar in nature to children's night-dresses for which a fire resistant quality far in excess of that relating to the dress material is required by the official regulations in Ireland the U.K. to which reference has been made.  I do not think that that comparison is strictly valid for the following reasons.  First, most children's nighties are loose, ankle length garments which are intended for indoor use primarily in the evening or night when, at least in winter, the wearers are likely to spend significant time at home in the proximity of domestic fires.  The normal length and looseness of such garments renders them more vulnerable to ignition than day dresses such as that worn by Rebecca which are not ankle length.  Secondly, nighties are usually worn without any underclothes or with only light pants.  Day dresses will be almost invariably worn with upper and lower underclothes thus giving the child some degree of greater protection than would be the case with nighties if no underclothes are worn.  Thirdly, dresses are intended for outdoor as well as indoor use.  Accordingly, the risk of association with fire is probably less than with nighties.  Fourthly, the evidence establishes that the use of chemical fire retardants causes significant practical problems to which I have already referred.  Such treatment militates against the merchantability of children's dresses.  Fifthly, although following without question a generally established practice in a trade or profession is not necessarily a good defence to a claim in negligence (see judgment of the Supreme Court in Roche -v- Peilow & Anor., [1985] I.R. 232), the defendant was entitled to take into account universal trade practice in conjunction with other relevant factors, including the public demand for quality wearable cotton garments.  Finally, and perhaps most importantly, the defendant was entitled to take into account that the official independent bodies in the U.K. and Ireland which regulate and keep such matters under regular review have not deemed it necessary in the interest of public safety, including that of young children, to impose any flammability test or fire warning regarding children's day dresses.  This attitude is given some substance by the defendant's practical experience.  It appears that over the years they have marketed hundreds of thousands of children's cotton day dresses broadly similar in nature to that supplied to Rebecca.  None were treated with fire retardant chemicals.  Her dress is the only one which has given rise to a claim for fire injury sustained by the wearer.
	The evidence has established beyond controversy that cotton material (such as that used in Rebecca's dress) presents a major fire hazard for the wearer if it is not subjected to an appropriate flame retardant process in course of manufacture.  There was no doubt that that risk was readily foreseeable by the defendant company and required to be addressed.  (In fact it was foreseen and was acted upon by providing what the defendant perceived to be adequate fire warning labels).  Furthermore, it has been held by the High Court and by the Supreme Court on appeal in Duffy's case and O'Byrne's case referred to hereunder that such a fire risk exists and when cotton material used in children's day wear is not treated for appropriate reduction in flammability an effective fire warning must be appended to each garment by way of alternative precaution.
	In the light of the foregoing factors I am satisfied that the defendant was not negligent or in breach of duty to Rebecca 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 turns upon the adequacy of the fire warning given by the defendant with the dress.  

	THE WARNING

	As I have already stated, the tragic circumstances surrounding the grievous injuries sustained by Rebecca underline the importance of giving carers who provide such dresses for young children a clear warning about the danger of fire.  It is contended on the plaintiff's behalf that the wording adopted by the defendant in the permanent tag, though it conforms to that specified in the official regulations for children's nightwear, was not sufficiently explicit as to the gravity of the fire danger presented by untreated light cotton such as Rebecca's dress and that it was insufficient to discharge the defendant's duty of care in that regard.  In support of that proposition reliance is placed upon a dicta of Finlay C.J. who delivered the judgment of the Supreme Court in Theresa O'Byrne (an infant) -v- Gloucester, delivered on 3rd November, 1988 (unreported).  The facts in that case were that the plaintiff when approximately 15½ years of age purchased from the defendants a brushed cotton skirt which was not treated with a fire retardant.  There was no fire warning given  with the skirt.  While the plaintiff was standing in close proximity to a Super Ser butane gas heater in the living room of her home helping a child to set up a model railway, the hem of the skirt caught fire.  It burnt very rapidly and she suffered extensive injuries.  The action was tried in the High Court by Johnson J. and he found, inter alia, that the defendants were negligent in the marketing and sale of the skirt in not attaching to it "some warning regarding the fact that it was made of a fast-burning fabric which had not been treated".  That finding was upheld by the Supreme Court on appeal and the judgment of Finlay C.J. contains the following passage at pp. 9/10:-

	"Having regard to the nature of the risk involved in the particularly 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."

	It is submitted on behalf of the plaintiff that in the light of the observations of Finlay C.J. as to the explicit nature of the fire warning indicated by him, the warning actually given by the defendant with Rebecca's dress falls short of what is required to discharge its onus of reasonable care in that regard.  On its face that is a formidable argument, but I do not think that it goes far enough to establish that the defendant was negligent in the instant case.  The observation of Finlay C.J. is obiter to the judgment of the Supreme Court which was that the defendants were negligent in not giving any fire warning with the plaintiff's skirt.  The judgment does not criticise or advert to the form of warning stipulated by the regulatory bodies in the U.K. and Ireland in the regulations relating to children's night attire which has been a requirement of law since 1955.  Both courts held that the defendant retailer was negligent in not providing a fire warning on the garment.  The precise nature of the warning which ought to have been given was not an issue in O'Byrne's case.
	In 1997 an action the facts of which were almost identical to those in Rebecca's case was tried by Laffoy J. in the High Court and subsequently considered by the Supreme Court on appeal.  See Amy Duffy (a minor) -v- Patrick Rooney & Dunnes Stores (Dundalk) Limited, judgment of Laffoy J. delivered on 23rd June, 1997 and the judgment of the Supreme Court delivered by Hamilton C.J. on 23rd April, 1998 (both unreported).
	The facts were that Amy, when not yet three years of age, visited her grandfather (the first defendant) and her grandmother in their home.  She was accompanied by her own mother.  It was arranged that her grandfather would bring her for a walk after lunch.  Her mother helped Amy into her outdoor coat in the hall of the house.  The grandfather put on his coat in the adjacent living room where a domestic fire was burning.  While he was looking out the window Amy entered the room unknown to him.  It appears that she stood too close to the fire and her coat ignited.  It burned rapidly and she was badly injured.  The coat was made in part of cotton and the garment had not been treated for fire resistance.  No fire warning was attached to it.  The plaintiff sued her grandfather and the retail store where the coat had been purchased.  Laffoy J. held, inter alia:-

	"..... 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.... 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 foregoing passage was recited with apparent approval by Hamilton C.J. at pp. 6 and 7.  It will be noted that the nature of the warning referred to by Laffoy J. was that "it [the coat] should be kept away from fire".  That formula is based upon the wording specified in the children's nightwear regulations.
	It has been argued that tobacco health warnings required by statute are specific and far-reaching in nature and it is urged that fire warnings on children's garments should be equally emphatic in their terms.  It seems to me that there is a major distinction between tobacco health warnings required on cigarette and other such packets and the fire warnings which should be given for children's day wear made from cotton which has not had fire retardant treatment.  In the former, statute law requires that a health warning should be given and the State has specified the wording of various warnings which should be used.  In the latter case there is no statutory requirement as to fire warnings for children's day wear and, therefore, it is a matter for the individual manufacturer/retailer to devise a warning which adequately puts child carers on notice that the relevant garments should be kept away from fire.  I apprehend that there are likely to be many in the market place who would be uncomfortable with a wording on the lines referred to by Finlay C.J. in O'Byrne's case which seems to imply a criticism of the garment that might hinder its merchantability - particularly if the reality is that other rival merchants do not provide with children's day dresses any fire warning at all.
	In my opinion the warning required by the regulations as to children's nightwear (which is not confined to items for which specific flammability standards are laid down) 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.  I am satisfied that the defendant discharged its duty of care regarding fire warning in relation to Rebecca's dress by adopting the form of words specified by the regulatory authorities in both jurisdictions for children's nightwear.  The defendant discharged its duty of care by providing the fire warning on the permanent tag attached to the dress.  However, they went significantly beyond that requirement by appending a second more prominent and more specific warning on the cardboard hanging tag "IN THE INTEREST OF SAFETY IT IS ADVISABLE TO KEEP YOUR CHILD AWAY FROM FIRE" which it is probable hung from the permanent tag when the garment was purchased by Rebecca's mother.  All of the circumstances establish that there was no negligence on the part of the defendant as to the marketing of the dress and its sale to Mrs. Cassells for Rebecca.  
	An argument raised by the defendant relating to causation does not arise having regard to my findings on the defendant's liability.
	By way of post-script; it is appropriate to express admiration of the extraordinary way Rebecca has emerged with such resilience from a major tragedy, not least the trauma of having been obliged to wear unpleasant special anti-burns clothing for upwards of three years as part of her medical treatment.  This reflects enormous credit on Rebecca and on her mother which I hope augurs well for problems which the future may hold.