The Court of Appeal has recently upheld a High Court decision in which Mr Younis t/a Safa Superstores was found one third liable for an incident which caused severe injuries to a toddler.
In 2013, Ayman Faisal was in his pushchair when his mother turned her back for a few seconds. In that time, Ayman picked up, opened and drank from a bottle of drain cleaner which contained caustic soda. He immediately suffered severe injuries as did his mother who sustained burns after trying to take the product out of his mouth. After a month in intensive care, Ayman has been left unable to speak and is fed through a tube into his stomach.
The manufacturers of the product, Active Brands Concept Limited, accepted liability on the basis the child proof cap was defective and this had allowed Ayman to drink from the bottle. However, they brought a contribution claim against the retailer on the basis they had not followed the warning on the product to ensure it was kept out of the reach of children. They alleged that by placing the product on the lower shelves, Safa Superstores should share liability for the claim.
In the High Court, the Judge found Active Brands Concept Limited and Safa Superstores were jointly and severally liable for the injury and held that Safa Superstores was responsible for one third of the liability for the claim. The decision was appealed by Safa Superstores, but was upheld by the Court of Appeal. Whilst the Appeal Court judges accepted that Mr Younis was someone who was “sympathetic” and “tried to do what was right”, the fact he had been unaware that he needed a licence to sell the toxic product was not a defence, and furthermore the product should not have been stored on the bottom shelf.
The decision emphasises that liability for the consequences of a defective product can reach beyond the producer, and can extend to the retailer in circumstances where they do not take adequate steps to ensure safety in the way the product is sold.
The amount of Ayman’s claim has not yet been settled, pending confirmation of his long term prognosis. However, funding that has been secured from the Defendants will enable him to seek specialist treatment.