Retailers’ duty of care: a slippery slope
Slip and fall accidents are a regular feature in the Courts’ legal diary. A slip and fall claim can occur when a customer slips and falls on something, usually a liquid or deleterious item (for example a pint of milk or broken tin of beans), in or on the premises of another causing them personal injuries. These types of claim can commonly take place in premises such as cafes, restaurants, shops or supermarkets.
This was the case in the recent trial of Desmond -v- Dunnes Stores which came before the High Court. The Court heard that the Plaintiff was caused to fall and seriously injure herself after a slip and fall on a spillage on the floor of an aisle of one of the Defendant’s supermarkets. The High Court awarded the Plaintiff €102,000 in damages.
The Defendants appealed the Order to the Court of Appeal on the basis that their system put in place to deal with spillages and contaminants was sufficient to fulfil their duty of care to patrons at their premises. The Defendants contended that they had fulltime employees whose sole purpose was to attend to spillages and contaminants and that those employees would traverse each aisle at least once every 15 minutes or so.
They argued that CCTV footage of the incident showed a high volume of customers traversing the area where the Plaintiff slipped without difficulty and thus contended that the spillage must have taken place immediately prior to the Plaintiff’s fall.
Their CCTV footage also showed that an employee on the day had checked that very aisle mere minutes prior to the incident. The Defendants felt that they could have done no more to protect the Plaintiff in all the circumstances and that they should not be held liable for the injuries sustained.
Interestingly, both Plaintiff and Defendant liability experts agreed and acknowledged that the frequency of inspections every 15 minutes by the employee were adequate. However, the Plaintiff’s liability expert felt that it was clear from the CCTV footage that the employee was not overtly vigilant. He pointed out that the Employee appeared to be looking straight ahead when walking the aisle, rather than inspecting the floor or entire aisle spaces. The Employee in question gave evidence admitting that the task was boring and she could find her mind wandering during the day.
Although training had been provided for all employees, the Plaintiff’s liability expert also felt that the adequacy of that training fell short of what should be required, as there was no emphasis on how vigilant Employees should be to spillages and alive to potential hazards in the aisles.
The CCTV footage provided by the Defendants was essentially a series of stills thus they were unable to prove exactly when the spillage occurred. They contended that the spillage occurred immediately prior to the Plaintiff’s accident, just following the employee’s check of the aisle.
The Trial Judge decided however that the Defendants had not discharged the burden in proving when the spillage precisely occurred and in fact, the Trial Judge felt that the spillage had occurred much earlier and it was simply the case that the spillage was missed by the Dunnes Stores employee. The Trial Judge’s decision was upheld by the Court of Appeal.
So what does this mean for Retailers going forward and discharging their duty of care to customers?
- It would appear that 15 minutes intervals between checks is adequate.
- The quality of the checks should be reflected in training protocols and there should be emphasis on the vigilance to be applied to such checks
- Employee should execute their duty with quality, precision and vigilance.
- The quality of the CCTV provided to the Court may have let the Retailer down in this instance. Had the CCTV been of better quality, it may have been possible to pinpoint the exact moment when the spillage occurred and thus the Defendants may have been successful in their argument that they had done everything possible within their power to discharge their duty of care to their customers.
If you require advice on any personal injury matter or any other issues involving a dispute please contact Donna Phelan on 01 2960666