Slipped in a shop? Do you have a claim?
I saw a post on social media the other day relating to claim against the supermarket by someone who slipped in the supermarket. This post generated considerable comment, and reading the comments, it appeared that there were a few myths referred to. I thought I would dispel some myths about slips and falls, considering the frequency that such accidents occur.
First, some general comments:
- Supermarkets, or other occupiers of premises, owe a duty of care to their customers/visitors. As commercial operators, they make profits out of their customers. The law defines their obligations and therefore liability in the case of accidents on their premises.
- Most, if not all occupiers have Public Liability Insurance, or as in the case of the larger companies, may be self-insured.
- Insurance companies settle cases, when they accept there is a risk of liability, or alternatively courts consider cases and hand down decisions based on all the evidence presented and by applying the law.
- Many cases succeed, just as many cases fail. One would usually expect that a payout only occurs, when it is warranted on the facts, and the law.
- Insurance companies and self-insured occupiers, have ‘deeper pockets’ than the usual injured person, which funds are used to investigate and resist paying out claims, if the circumstances warrant it. Some cases are lost because the injured person is ‘found out.’ We have all seen current affairs programs showing surveillance activities of a so-called ‘injured person’, which may have been found out.
- Lawyers, traditionally handle such cases on a no win no fee basis, thereby accepting the risk of not getting paid, if the case is unsuccessful. They tend to carefully scrutinise cases, before accepting that risk. Many lawyers, like me, will back their clients in a worthy case, notwithstanding the perceived unequal financial resources of the parties.
- In my experience, many people may not appreciate how debilitating an injury may be, until they experience it themselves. Some of these people, who previously ‘bagged’ such claims, change their mind after such a personal experience.
- It is dangerous to compare cases, as every case differs on its merits and factual circumstances. For example, a young person deprived of a lifetime of income because of an injury, may have a greater loss than a person approaching retirement age. There are also many components of damages, which are considered, and which vary from case to case.
- Laws differ from State to State. In general, the below mentioned summary applies:
- There are time limits to commence legal proceedings. Some States have 3 years.
- The injured person needs to prove negligence (breach of duty of care).
- The fact that an accident occurs on premises, does not in itself mean there was negligence on the part of the occupier.
- Lawyers will look at many factors including:
- Was there a system of cleaning and inspection? If not – potentially a good claim.
- If so was such system a reasonable system in all circumstances? If not – potentially a good claim. Several cases decided by the courts, have determined that inspecting the floor every 20 minutes may be an adequate system of inspection. Inspection in high risk areas such as food courts in shopping centres, may be required of greater frequency. It all depends on the facts of the case.
- Was the system complied with? If not – potentially a good claim.
- How long the substance was on the floor, as this may have relevance to whether a breach occurred. For example, if another customer dropped liquid 30 seconds before and other person fell, it will be harder to argue that the store was negligent.
- Was there CCTV covering the incident and extending a reasonable time before the incident occurred. This will assist in ascertaining the system and/or compliance.
- How did the substance that the customer slipped on, get onto the floor in the first place? For example, many supermarkets use flower display stands, which involve water in buckets, with risk of water being dripped on the floor. This may be argued to be a deficient design, thus creating liability. We may all notice mats in the fruit and vegetable section, or in front of freezes or fridges. These are likely to have been placed to minimise risk of injury and therefore liability, due to the higher risk of spillages.
- Did the occupier know of the presence of the substance, which caused the slip? If they did, they have a duty to preserve and protect the area, until the spillage is cleaned. Several cases have flowed from the occupier being aware of the danger, but failing to act in a timely and/ or adequate manner.
- To what extent did the customer keep a proper lookout. Failing to keep a proper lookout, creates a risk that some liability is apportioned against the customer. Depending on the circumstances, this apportionment against the customer, may be low, or on occasions high. When considering the circumstances, lawyers would consider matters such as- distractions caused by the display or volume of traffic, and other environmental factors.
My concluding remark is: “Let’s keep our supermarkets and shopping centres safe.” Every one of my clients, would have preferred not to have had the accident in the first place.