Eva Cekanova v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 20 January 2021
• Neutral Citation: [2021] IECA 12
• Date: 20 January 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/541

Between:

Eva Cekanova

Plaintiff/Respondent

and

Dunnes Stores

Defendant/Appellant

[2021] IECA 12

Whelan J.

Noonan J.

Faherty J.

Record Number: 2019/541

High Court Record Number: 2016/2634P

THE COURT OF APPEAL

JUDGMENT of Mr. Justice Noonan delivered on the 20th day of January, 2021

1 In December 2015 the respondent (“the plaintiff”) purchased a glass jug in the appellant's (“Dunnes”) store in Blanchardstown for €10. She brought it home and made tea in it, using very hot water. In consequence it shattered resulting in burns to the plaintiff's legs. She brings these proceedings claiming damages in negligence and breach of contract against Dunnes. She was successful in the High Court (Cross J.) who assessed her general damages at €75,000 and special damages of €844.96. The trial judge found the plaintiff to have been guilty of contributory negligence to the extent of 25% resulting in a net decree to the plaintiff of €56,833.72. Dunnes have appealed to this court on the issues of both liability and quantum. The plaintiff has cross-appealed against the finding of contributory negligence.

Background Facts

2 The plaintiff is a Slovakian national who was born on the 7th June, 1989. She came to live in Ireland in 2014. At the material time, she was employed as a warehouse operative by a logistics company called Wincanton which, coincidentally, is engaged by Dunnes for its logistics operations.

3 On the 5th December, 2015, the plaintiff and her partner went to Dunnes Stores at Blanchardstown with the intention of buying a glass jug in which to make tea. Her evidence was that prior to that time, she and her partner shared a flat with a couple from Czechoslovakia who made tea in a glass jug. She said that this is normal in Slovakia, but she was aware that the habit in Ireland is to make tea in a teapot. The plaintiff went to the glassware section of the shop where glass jugs were located along with drinking glasses, bottles and other items of typical glassware. Apart from price, there was no particular labelling on the jug in question, which appears from the photographs to have been a fairly standard looking tall glass jug. Neither the plaintiff nor her partner made any enquiries from staff at the store as to the jug's suitability for making tea.

4 The plaintiff's evidence was that when she got home, she made a small amount of tea in the jug that evening without incident. On the next morning, the 6th December, 2015, the plaintiff was making breakfast and boiled a kettle to make tea. She put some teabags into the jug and let the kettle cool for a period of time. As appears from her engineer's report, she told him that she allowed it to cool for 5 – 10 minutes. Her partner's evidence was that she left it for maybe 10 minutes. She then poured the water, which was not boiling but very hot, estimated by the plaintiff at around 80 to 90 degrees centigrade, into the jug. The jug then shattered, spilling the very hot water onto the plaintiff's legs causing what the trial judge described as very nasty burns.

5 On the 8th December, 2015, the plaintiff attended with her solicitor and on the 10th December, 2015, she went back to the Blanchardstown Store to find that there were no jugs on display. She returned again on the 15th December, 2015 and this time, there were jugs on display but each with a sticker label on it in the English and French languages stating “hand made product, not for use with hot liquids, nes pas utiliser avec liquids chaude, hand wash recommended”, with further translations in French of the other English words. The plaintiff again returned to the store on the 18th December, 2015 when she reported the accident to a Dunnes staff member, Kenneth Young. On that occasion, there were again jugs present with the warning label. Finally, some months later, on the 13th May, 2016, the plaintiff again attended at the store and noted that the same or similar jugs were again on display but this time, without labels.

6 The jug in question was manufactured by Libbey Inc. at a factory in Mexico. Libbey was originally joined by Dunnes as a third party to the proceedings, but the third party issue was resolved in advance of the plaintiff's claim proceeding.

The Case Pleaded

7 The plaintiff's claim is brought in negligence, breach of duty including statutory duty, and breach of contract. The particulars given under these headings in the personal injuries summons plead that Dunnes sold to the plaintiff a defective and dangerous homeware item which was of less than merchantable quality. It is alleged that Dunnes failed to provide any adequate warning as to the fragility of the jug and represented that it was suitable for holding liquids without conditions of use. Some further general particulars are pleaded including a breach of s. 14 of the Sale of Goods and Supply of Services Act, 1980 which I think is intended as a reference to s. 14 of the Sale of Goods Act, 1893 as amended by s. 10 of the 1980 Act and implies terms as to merchantable quality and fitness for purpose. There is no plea in the personal injuries summons or any subsequent particulars alleging that it was a custom in Slovakia or any other Eastern European country to make tea in glass jugs and that Dunnes knew or ought to have known that this was so.

8 Subsequent particulars were delivered alleging a breach of Dunnes' obligations under the Liability for Defective Products Act 1991, although I think it is fair to say that this was not actively pursued either at the trial or on appeal. Dunnes' defence is a full traverse including a plea that the plaintiff had failed to have regard to the warning sticker on the jug, apparently based on an understanding that the bi-lingual warning sticker was attached. The defence further pleads that if there was negligence, it was that of Libbey and there was contributory negligence on the part of the plaintiff. It is common case that the first mention of the Slovakian custom of making tea in glass jugs is to be found in the report of the plaintiff's engineer, Mr. Alan Conlon which was exchanged pursuant to S.I. 391 of 1998.

Evidence in the High Court

9 Evidence was given by the plaintiff and her partner, now husband, as described above. As the medical reports were agreed, the only other witness to give evidence for the plaintiff was her engineer, Mr. Alan Conlon. On behalf of Dunnes, Mr. Kenneth Young gave evidence, who was a member of management at the Blanchardstown Store and to whom the plaintiff reported the incident. Evidence was also given by Ms. Caroline Scanlon, a buyer in Dunnes Stores head office who was involved in the ordering and purchasing of this line of glass jugs. The manufacturer, Libbey, was described as the world's largest manufacturer of glassware, distributing its products in 169 different countries. Ms. Scanlon described the purchasing process and identified the relevant purchase order documentation.

10 The relevant purchase order was a document used for both homeware and drapery, particularly ladies' wear. The document refers to “fabric details” and under the heading “labelling” the words “care label ref” appears after which is typed “required”. Ms. Scanlon was asked was the label required on the glass jug and her answer (at Day 2, Q. 413) was:-

“No, we never simply asked for a care, care label or a warning label to be put on these…”

11 After the same question, the trial judge had the following exchange with Ms. Scanlon:-

“Mr. Justice Cross: That's okay. Just to assist me there, you said it says here ‘care label required’ on the document.

A. Yes, that's correct.

Mr. Justice Cross: But you said what?

A. It's, this, it's required for ladies wear or drapery. It wouldn't be required for homewares, like, on hard goods.

Mr. Justice Cross: But it's on, sorry, it's on this document which relates to these jugs so is it, is it wrong?

A. It is wrong, it shouldn't be, it shouldn't be on a hard, it shouldn't be on the purchase order for homewares.

Mr. Justice Cross: But it was.

A. But it was.”

12 Ms. Scanlon went on to give evidence that between April 2015 and May/June of 2019, Dunnes Stores sold over 11,240 of these jugs and the only complaint received in relation to same was that of the plaintiff.

13 The issue of labelling was pursued further with Ms. Scanlon under cross-examination by counsel for the plaintiff who asked her (on Day 2 at Q. 437 et seq.):-

“437 Q. You are aware that this product was intended to be marked and warned ‘not for use with hot liquids’ by the manufacturer?

A. No I wasn't.

438 Q. You weren't aware of that?

A. No. We, I wasn't expecting to see, I wasn't expecting to see a label that says ‘do not use with hot water’.

Mr. Justice Cross: But you wouldn't have looked at the jugs, would you, as they came in there?

A. Well we do, we get and we always get a production sample to check.

Mr. Justice Cross: You take a sample.

A. Yes. And it did have the label on it because when we got the call we went and checked and said ‘oh, it does have a label’. But I wasn't actually expecting to see a label on it because it wasn't bought for that intent, to put hot water into it, it was, it was bought clearly to merchandise in stores with our glassware. It was bought under the glassware section.”

14 Ms. Scanlon reiterated this position when pressed by counsel for the plaintiff as to why there was no system in the store for checking the labels on the jugs (at Day 2, Q. 468):-

“468 Q. Can I suggest to you that if there had been a system such as that in place this action could have been avoided?

A. I personally don't think so because you didn't expect to see that label there. We didn't ask for the label to be put on there so we would have never asked the stores to check for a label. The, the jug was never bought for that reason. The jug was bought for having on the table making cordial, say, like orange juice, lime, you know, water...