It can happen so quickly:

• A customer slips on a cherry tomato on the floor of the food department of a High Street store
• A customer falls over a box left unattended in the aisle of a department store
• An employee slips on an area of moisture on the floor of the kitchen of a fast-food restaurant.

My firm has been involved in all the above cases and in each one the person concerned was compensated for the personal injuries and consequential losses which they suffered as a result of the accident.

The question is how can retailers (“occupiers”) take steps to prevent such accidents or to place themselves in the best position to defend any personal injury claims which may follow.  

This is particularly pertinent at this time of year because of the pressure on businesses leading up to Christmas and the consequential difficulties of keeping premises free of the problems which may lead to slips and trips, for example debris, spillages etc.

As a matter of law, occupiers are under a duty “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe”.  It will be seen that this is not a strict duty but one which is twice qualified by the principle of reasonableness. The issue of what is “reasonable” has emerged from case law and may be summarised as follows.

The law imposes upon the occupier a duty of care which requires that “there must be some reasonably effective system for getting rid of the dangers which may from time to time exist”.

It essence, it is necessary for the occupier to show that they had in place “a proper and adequate system, in relation to the circumstances, to provide for the safety of customers” In relation to spillages it has been said that “a proper system would give responsibility for the early detection of spillages to an individual with the task of walking the floor from time to time”.

It is obvious that an occupier cannot exercise absolute control of everything that goes on in their premises. They cannot prevent customers dropping items on to the floor and this was almost certainly the source of the cherry tomato. 

Similarly, they cannot constantly monitor the activities of all employees and inadvertence on the part of another employee was almost certainly the source of the box in the aisle of the department store and the accumulated water on the floor of the fast-food kitchen.

So what can be done to enable an occupier to show that “the accident did not arise from any want of care on their part”.

The Court will accept that an occupier cannot avoid all accidents in their premises but in the event of an accident it is a defence to any personal injury claim to show that they had in place “a proper and adequate system, in relation to the circumstances, to provide for the safety of customers”. 

What would be a proper and adequate system in the circumstances of the particular case would be for the Court to decide but will depend on factors such as how busy the premises are. Arguably, therefore, a more vigilant system would be necessary at times of busier trading, e.g. in the lead up to Christmas.

The risk of accidents from these type of events therefore needs to be assessed for your business and appropriate measures put in place. These measures would normally involve ensuring that:

• The premises are inspected for spillages etc. at regular intervals each day and that any necessary action is taken promptly.
• Proper written records are maintained of the times when the inspections were undertaken and of any remedial steps taken.

Making sure these rules are adhered to should prevent accidents in the premises and protect your business from personal injury claims.

Alan Bacon is head of the personal injury department at BTMK Solicitors LLP.

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