25 July 2011
Slipping and tripping, the next chapter: Tristan Hallam
I wrote a blog recently on a case that I am dealing with for a client who tripped on a raised paving stone outside her home.
The next ‘chapter’ if I can put it that way is in commenting on slipping cases since cases generally where people trip or slip are known as exactly that, ‘tripping and slipping cases.’ The classic slipping case is someone slipping over in the supermarket.
Other than someone slipping over in the supermarket or in a shop there is rarely any other type of slipping case although of course it is perfectly possible to slip on a variety of substances and by way of example, I have a claim currently for someone who has slipped on oil that had been deposited on a road by a vehicle that was unknown where so long as he can establish that it was oil on the road and ideally obtain witness evidence to establish the presence of the oil and that he slipped on it, an application should be made to the Motor Insurers Bureau under the Untraced Drivers Agreement.Generally however, it is someone walking through a supermarket, happy looking at the shelves and deciding what to buy who then slips and invariably as a result of the nature of the fall sustains an injury to their back, neck or sometimes slips in such a way as to sustain a twisting injury or a blow to their knees.Before commenting on the issue of liability, one has to go back to basics.
A claim against the owner or occupier of the property is generally brought under the Occupiers Liability Act. There is no strict liability under this Act but instead the Court look to the issue of reasonableness and to what extent an occupier of land reasonably had knowledge of the presence of a hazard and was able then to take such steps as to ensure that the hazard no longer posed a risk.
The burden has always been on the Claimant in such circumstances to establish the case; however it has equally been upon the Defendant in such circumstances to establish that the hazard was not reasonably present or indeed did not pose a reasonably foreseeable risk of injury.
Therein lies the issue as slipping cases are interesting to the extent that so long as you can establish that you slipped over on liquid or on a fallen grape as you were doing your shopping in the supermarket, the burden in respect of liability then shifts to the Defendant.This must be right.
The person who slipped over is entirely innocent. Unless they saw the hazard, they did not voluntarily place themselves in a position where they wanted to slip on a puddle of spilt milk in the supermarket. They are not in any way at fault but someone has to be for allowing the milk to remain on the floor.It comes as no surprise therefore that the Court of Appeal dealt with a case of Ward –v- Tesco Supermarkets in the way that it did.
Mrs Ward slipped on a grape. She sustained an injury. She alleged that Tesco’s had allowed the grape to remain on the floor causing her to fall. Tesco’s in turn produced evidence from the manager to say that they had a reasonable system of checking that the aisles were free of any fallen produce, that employees were during their course of their training, told to check out for the produce and that it could not have done anymore. The grape must therefore have just fallen on the floor moments before Mrs Ward stepped on it.
The Court of Appeal was however not convinced by this argument. Simply having a system whereby employees had the burden of looking out for produce that had been spilt where the majority of employees were perhaps working on the tills at a busy period, could not surely amount to a sufficient discharge of the Defendant’s burden of ensuring that Mrs Ward was reasonably safe.
Instead, the Court of Appeal required Tesco’s to have done more. Since this case shops, occupiers and supermarkets in particular have employed a reasonable system of inspection whereby they specifically send someone round at a regular period during the course of the day, perhaps every half an hour or an hour who takes a tick list with them and ticks off that they have down aisle number 20 which is the fruit and vegetable aisle, and that there is no produce lying on the floor, and that all is well.
If Mr Jones then slips on a grape at 3.25pm, immediately calls the manager who attends, notes the time and makes an entry in the accident book, you can ‘bet your bottom dollar’ that the supermarket will then be reconciling this with the inspection record to see when the last inspection was carried out.
If for example, there was an inspection every hour, the last inspection having been at 3pm and the accident having happened approximately 25 minutes later, the supermarket will argue that the grape must have slipped between 3pm and 3.25pm, they had employed a reasonable system of inspection and given the size of the supermarket, the costs involved etc, what more could they have done???
So long as they can show that they had a reasonable system of inspection and are generally quite difficult to establish that the inspection was not reasonable or in fact did not take place, the supermarket will escape liability. Very similar in this respect to my previous blog about tripping accidents with the need to establish that the tripping hazard had been there prior to the inspection (see below) which the local authority say they carried out.
Despite some rumbling in various different quarters, the case of Ward –v- Tescos is still good law and in my opinion rightly so. It cannot be right that an innocent person, who does their shopping in the supermarket and sustains perhaps a significant injury through no fault of their own, should bear the burden of trying to establish when the grape fell onto the floor. They simply cannot. They cannot have access to any evidence to establish when the grape is likely to have been knocked or dropped by a customer onto the floor and therefore the burden must shift onto the Defendant who has a duty as occupier to ensure that the premises is reasonably safe.
This is not a difficult concept and should and can be quite rightly applied in other circumstances where an occupier has a similar duty. So long as the injured party can establish that they slipped on something which caused them to fall leading to their injury, the burden will then shift onto the Defendant.
It is then for the Defendant to establish that they had in place a system to ensure that the injured person who was invited onto their premises was kept reasonably safe.
If they cannot establish such a system, it is only right and proper that they should be found at fault.
Tristan Hallam is a Principal Lawyer in Personal Injury in the London office of Slater and Gordon.
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