According to the Health and Safety Executive (HSE), slips and trips are the leading cause of accidents for operators in the workplace, accounting for 32% of all non-fatal accidents. Slips continue to be the predominant cause of most customer-facing operators.
Due to their accidental nature, slips and trips are almost impossible to eradicate completely. Members of the public involved in incidents will almost certainly feel they’re entitled to some form of compensation, which will impact claims history and overall indemnity spend.
However, all is not lost. Although some claims are inevitable, we can evaluate the outcomes of successful cases and judges’ comments in order to understand how you can best position yourself to repudiate a claim.
In this article, we will review our recent successes in this area and highlight what lessons can be learned to help you enhance defensibility in the future.
Building upon the previously reported cases of Robinson v Bourne Leisure and Klimcke v Bourne Leisure, we’re delighted to report on another recent success involving a slip on a spillage accident to complete a superb ‘hat-trick’ of successes.
In this case, the claimant was attending a Butlins resort for an adults-only weekend, during which several live music acts were performing at an on-site venue at near capacity of 2,000. The claim was brought against Butlins pursuant to section 2 (2) of the Occupiers Liability Act 1957 and/or in the tort of negligence.
Our client had signs displayed throughout the venue advising customers to keep drinks away from the dance floor. This was supplemented by regular DJ announcements, a good inspection and cleaning system, and fully briefed staff members. At trial, the claimant and her witnesses alleged they had not seen any of the prevention systems in operation on the day of the accident.
The judge pressed the claimant’s counsel for suggestions on measures that should have been taken beyond those already in place. In response, counsel accepted that it was a drinking venue, and, therefore, did not suggest that Butlins should have banned all drinks, nor did they suggest that the entrance to the dance floor should have been controlled by a barrier where checks would be carried out.
The claimant’s counsel did, however, suggest that the defendant could have stationed employees to intercept and prevent any customer from attempting to take a drink onto the dance floor. This was dismissed by the judge as a wholly unrealistic suggestion.
A key point in this judgment was the discussion surrounding Ward v Tesco, the case which effectively reverses the burden of proof that requires the defendant to prove that:
Crucially, the judge ruled that the circumstances of this accident were not comparable with those in Ward v Tesco, emphasising the inevitable risk of spillage in public venues serving drinks, unlike a supermarket where, on the face of it, there is no good reason or expectation that fluid or other substances may be present on the floor.
The judge also found that there was no evidence in this case as to when the spillage actually occurred. He proceeded to suggest that the spillage could have appeared only moments before the claimant slipped, and Butlins staff would not have had the opportunity to clean it before the accident happened.
The judge made three key conclusions when summing up the case as follows:
In the case of Klimcke v Bourne, the claimant stated she slipped on a wet patch in the restaurant area in one of the park’s venues, sustaining injury. Our client argued that there was no direct evidence of the hazard and that a reasonable system for responding to spillages was in place.
In the court’s judgment for this case, the judge referred to both the Robinson matter and also Ward v Tesco, which was used by the claimant’s solicitors to establish a position which placed liability firmly with the defendant. The judge reaffirmed the findings in the Robinson case, stating that public venues where drinks are carried do not correlate with Ward v Tesco, which was a yoghurt spillage in a supermarket.
Importantly, the judge went a step further suggesting that not only are the disparate circumstances of Ward and Robinson an important differentiation, but in the case of bar spillages, it would be very difficult – if not impossible – to deal with every small spillage where drinks are being carried to and from a busy bar, regardless of the system the defendant had in place.
The recent success in Suzanne Evans v Butlins Limited involves another slipping accident in the defendant’s pub venue. The claimant slipped on some liquid shortly after entering the premises and fell, sustaining injury. Allegations included breaches of the Occupiers Liability Act 1957 and negligence for inadequate inspection and cleaning systems.
Our clients had implemented and were operating suitable systems for regular inspections and dealing with any spillage. Despite the lack of direct witness evidence regarding the cleaners on duty, the decision was made to deny the claim based on the policies and procedures in place at the time. It was accepted by all parties that a spillage had occurred and that the spillage was the cause of the claimant’s accident, but the duration of the spillage’s presence was unknown.
Similar to the previous two cases, the claimant’s counsel referred the judge to the case of Ward v Tesco, and also the fact that the defendants did not have any witness testimonies from those who actually dealt with the spillage and incident at the time. Instead, they highlighted that they relied solely on witnesses who could testify regarding the systems that would have been in place on the day in question.
The defendant’s two witnesses who gave evidence confirmed the systems that would have been in place on the evening, together with the defendant’s policies and procedures. The spillage cleaning check sheets and data did identify that spillages had been recorded on the relevant rota sheets, and the cleaning system was in operation on the evening in question. The defendants also referenced their ‘Clean as you go’ policy.
The judge concluded that the cleaning system was reasonable and in accordance with their obligations under the Occupiers Liability Act. The claim was accordingly dismissed.
As can be seen from the above, the three judgments represent a measured and common-sense analysis of the problems facing the occupiers of licensed premises, hoteliers and other hospitality venues in avoiding and successfully repudiating slipping accident claims and offer guidance on the limits of what can reasonably be expected of them in the discharge of their duty under the Occupiers Liability Act 1957.
Claimants’ solicitors will often quote Ward v Tesco, which is a leading case on slips; however, in all three of the judgments discussed here, the judge clearly distinguished the circumstances from public venues where there is an inevitable risk of spillage. If you are able to have in place the suggested simple guidance you will be in a position to successfully defend these claims by utilising these cases and achieve a better outcome. Accidents are inevitable but not always with fault!
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