SUPERSTORE SLIPPERS

1.               Slipping accidents in superstores have been the source of substantial litigation ever since the Court of Appeal’s decision in Ward v Tesco’s [1976] 1 WLR 810, which developed the principle that a prima facie case could be established merely by a shopper proving that he/she had slipped on a supermarket floor. This meant that an evidential burden was imposed on the defendant to establish that:

(a)        There was a reasonably effective system for clearing any dangers which may, from time to time, exist; or,[1]

(b)        As a matter of causation, the slip would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers.[2]

2.               In practice there is significant overlap between (a) and (b) because, realistically, an argument as to causation is only likely to be sustainable if the effectiveness of the system is such as to permit the inference that a spillage could not have been present for any great length of time.

3.               It follows that for claimants and defendants alike, it is crucial when assessing litigation risk to establish criteria by which to evaluate the reasonableness of the system in place at the time of the accident. In this regard, the case of O’Driscoll v Tesco’s (21/1/99), decided in favour of the defendant, provides a valuable checklist. H.H.J Harris Q.C described the system in place as “excellent”. It had the following features: -

·         Two handbooks were given to new employees during their induction, informing them of the risks from slippery floors and the precautions to be taken. In particular staff were instructed: -

(i)              To clear spillages quickly by disposing of any solids in a rubbish bin and finding appropriate equipment or calling a cleaner for any liquid spillages; and,

(ii)            Never to leave a spillage unattended.

·         New employees were also instructed as to the importance of looking out for items on the floor and shown at least one video film drawing their attention to the danger of slippages.

·         Janitors were employed to be present at all times in the store. They carried bleepers and radios enabling them to be summoned at any time by a member of staff to attend to any spillage requiring their attention. They also patrolled the store at hourly intervals.

·         Cleaners (other than the Janitors) were employed to clean the store when it was empty. Two were normally on duty during opening hours patrolling with bleepers and radios.

·         “Runners” were employed to police the check-out areas and deal with any dangers, in particular slippages, which might occur.

·         Managerial staff patrolled up and down the area between the aisles and the check-outs.

·         At least one member of staff was required to be present at all times around the wine shelving, primarily to prevent theft, but also to detect spillages.

4.               Needless to say, the above list should not be seen as exhaustive. In particular, such a system could be improved if the janitors, cleaners and/or runners kept a log recording the number and location of inspections, as well as any spillages attended to. Without such evidence, it would be open to the Court to conclude that the system which was theoretically in place did not operate effectively in practice.[3] In this regard the customer to accident ratio may be important. In O’Driscoll, it was significant that, despite four million customers each year, there had been only twenty-seven recorded incidents in twenty months. This enabled the Court to infer that the defendant’s system operated effectively in the absence of any cleaning logs.[4]

Conclusion

5.               There is, of course, no definitive guide as to what constitutes a suitable system for clearing slipping dangers in superstores. Cases are fact-sensitive and may turn on particular issues, such as the size of the store, the number of employees on duty and/or the length of time for which the hazard had existed prior the accident. Nonetheless, the case of O’Driscoll provides a useful checklist for both claimants and defendants when assessing the litigation risk in pursuing or defending a claim. It also provides a useful basis for both sides to agree appropriate pre-action disclosure. In particular, it would be advisable to request/disclose details of the level of instruction given to new employees, the nature of the store’s preventative and post-spillage procedures, and details of previous accidents. These can then be compared with the guidance set out above, enabling both sides to gauge the strength of their position.

James Arney