Trading With the Public? Do You Understand Your Legal Duties?

Anyone who deals with the public is potentially exposed to liability and that is why it is sensible for traders to seek legal advice specific to their business about the extent of their duties. In one case where that did not happen, a shopkeeper was found partially to blame for an incident in which a toddler drank from a bottle of drain cleaner.

The two-year-old boy had been wheeled into the shop in a pushchair by his mother. Hidden by the pushchair's hood, he took the bottle off a bottom shelf and removed what was supposed to be its child-resistant cap. He put some of the contents in his mouth, suffering very serious injuries.

After the boy's family brought proceedings on his behalf, the manufacturer admitted full liability on the basis that the cap did not comply with safety standards and could easily be removed by a young child. However, the manufacturer took action against the shopkeeper, arguing that he was in part responsible for what happened and should contribute towards the boy's compensation – which is bound to be a substantial sum – and the legal costs of the case.

In finding the shopkeeper one-third to blame for the boy's injuries, a judge noted that it was unlawful to sell the product, a highly corrosive alkali, without a licence under the Poisons Act 1972. The shopkeeper had no such licence and said he was unaware that he needed one. The bottle was also marked with a warning that it should be kept out of the reach of children, but the shopkeeper had not read the label and had stocked the product on the bottom shelf.

In dismissing the shopkeeper's appeal against that ruling, the High Court noted that, although the risk of such an occurrence was small, it was not negligible. It would have cost the shopkeeper nothing to place the bottle on a higher shelf, out of children's reach, and by failing to take that reasonable precaution he had breached the duty of care he owed the boy and his mother.