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Tristan Hallam: further blog following The Lofstedt Review

By Principal Lawyer, Occupiers and Public Liability

I wrote a blog recently on the Lofstedt Review which came out recently on Health and Safety Regulations and whether the Regulations are to numerous for us and  businesses to cope with without affecting the good business function of an organisation.  I want to comment briefly on the view I take as to the Regulations that these were created by Europe, became law in this country by act of Parliament and if there was any doubt thereafter as to the interpretation of the Regulations, the Courts would give due consideration to what they consider to be the correct interpretation by way of case law.  This is a law that we have in this country. It is known as a common law and is based upon statute but also upon cases which provide for the basis of the systems that we have entitling both parties to what is hoped will be a fair trial, the right of appeal and due interpretation of the law by the judiciary. The law is in most parts based upon fairness, by this I mean the Courts have tried to establish what is the fair position between say an employer and an employee as far as Health and Safety Regulations are concerned, ensuring that the employee has the full benefit of any Health & Safety Regulations but that the employer was not penalised unduly. The same applies in other areas of personal injury law. By way of example, the Occupiers Liability Act requires an issue of foreseeability and the person who was injured on someone else’s premises must therefore show that it was foreseeable an injury could occur because of the nature of the defect or hazard on the premises.  I shall comment further in a separate blog on Health & Safety Regulations. However just by way of example on the question of fairness, look closely if you can at the case of Ward –v- Tesco. Mrs Ward was a customer in a Tesco store. She as the customer is entitled to a degree of protection.  I mean when I say this, that she is entitled to assume that when she goes shopping in Tesco or indeed any shop, that she will not be put in a position of hazard. Mrs Ward cannot guard against any hazards in a building which is not under her control. Supermarkets for example can have thousands of customers on a particular day, each of them pushing trolleys around, picking up produce and potentially dropping items of produce, bananas, grapes etc on the ground. Why therefore should Tesco have anything other than a duty to provide Mrs Ward with a safe area in which she can shop. When Mrs Ward slipped and sustained an injury, she should then argue quite rightly that Tesco’s had failed in their duty to provide her with a safe area to shop and she should be entitled to compensation.
This is exactly what Mrs Ward argued and indeed what the Court of Appeal subsequently accepted.However, what of the fairness to Tesco. Tesco at that time did not have what most supermarkets have now, namely a system of inspection which is where they have an employee go around the supermarket on a regular basis during the course of the day checking aisles are clear of defects, namely no bananas or grapes have been dropped, and they will mark this off on an appropriate register.  The Court of Appeal did not accept an argument that Tesco had put forward at the time of Mrs Ward’s case that training their employees to look out for hazards was  sufficient.  Employees would be busy during the course of their day. They will be stacking shelves, assisting other customers and they would not therefore have time to look out for any hazards.  It was not fair for Mrs Ward to be put in a position of danger where she could do nothing about this.  She can of course look out for any hazards but why should she be required to do so where she is in Tesco to shop and her primary concern therefore is to look at her shopping list and to ensure that she has the produce that she intends to buy.  If Mrs Ward walked over an area of hazard, namely there was yoghurt on the floor which she saw and then chose to walk over the area again, she would not be beyond criticism as the Court is not blind to the fact that each of us have a duty to look out for ourselves and we cannot simply rely upon the Defendant to do so where a hazard is obvious. However, Mrs Ward was innocent of any knowledge relating to an item of produce having been dropped, it is was for Tesco to ensure that they had a reasonable system which was working at the time and working correctly so that any hazard such as dropped bananas or grapes, were reasonably quickly removed.  The fairness to Tesco is that this is a large organisation. They have a duty to provide a safe place to their customers. It is not difficult for any such organisation to send someone to check the aisles and the cost is more than evenly balanced against the duty owed to a customer. Fairness prevails, fairness not only upon Tesco and other supermarkets who were being required to implement a system which would prevent accidents occurring and to guard against any claims against themselves but also to Mrs Ward who is entitled a degree of safety when entering someone else’s premises.My very best wishes for the Christmas period and for the New Year.Tristan Hallam is a partner in Personal Injury in the London office of Russell Jones & Walker.If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form or email and one of our specialist personal injury team will review your compensation claim for free.