Keoghs’ Scottish Casualty team has had a busy year at the All Scotland Personal Injury Court (ASPIC). Around 40 proofs proceeded at ASPIC in 2022 (a combination of remote webex hearings and in person). This two-part article provides a roundup of the unreported cases where Keoghs lawyers have defended at proof.
In part 1, Solicitors Khadija Sarwar and John Stringer will offer an overview of the public liability decisions and will offer some insight into how the Courts are dealing with these types of claims in Scotland.
Part 2 will consider the employers’ liability decisions and offer a similar overview.
The pursuer claimed that she entered a supermarket on a day of torrential rain and slipped on a large puddle of water. As a result, she fractured her leg. She claimed that the supermarket were liable. She argued that they had failed to adopt a reasonable system to manage the risk of customers slipping on rainwater. CCTV was available to the court.
The defenders successfully challenged her evidence on the presence of a hazard. The court accepted that there was no puddle of water and that the defenders had complied with their duty. The defenders also successfully challenged the evidence led by the pursuer’s Health and Safety expert witness. Under cross-examination, the expert was unable to provide any sound basis for his criticisms or recommendations for improvement. In addition, he accepted that he had failed to complete an inspection at the locus.
The Sheriff found that the pursuer’s expert was seeking a counsel of perfection. The defenders had done everything they reasonably could to prevent accidents occurring. In particular, the Sheriff accepted the evidence from the defender’s Health and Safety Manager. The Sheriff held that he was “an impressive witness” as “he spoke passionately about the risk assessments covering slips and trips, which he had personally prepared.”
Extent of the duty to take care
In finding in favour of the defenders, the Sheriff clarified that the duty incumbent upon occupiers is to take such care as is reasonable in the particular circumstances of the case. The duty of care is not to ensure that premises are completely free of dangers. The nature of the risk will inform the precautions required. To expect anything more would be within the realms of demanding perfection.
This case considered an accident in a supermarket. The pursuer was an elderly woman. When shopping for a sweet treat near checkouts she tripped over stacked baskets, which had been left by customers in the minutes before her accident.
The pursuer argued that the defender had adopted a reasonable system of inspection and maintenance but had not followed it. Further, the pursuer contended that a basket holder ought to have been present.
On behalf of the defenders, it was argued that (1) the defenders had both proactive and reactive systems for hazard detection, (2) that the defenders’ staff had followed these systems, and (3) that the baskets (if considered a hazard) had only been present for a matter of minutes.
Parties agreed a number of matters prior to Proof with a view to limiting the matters before the Sheriff. This included the accident report and CCTV footage, which captured the accident. The pursuer led two witnesses – herself and her daughter. In response, the defenders led evidence from their Health and Safety Manager and from the then Store Manager.
Burden of proof
Ultimately, the Sheriff found that the pursuer failed to prove her case. She had not led any evidence, which would allow the Sheriff to find in her favour. There was no evidence that the defenders or their employees had failed to follow the systems and the pursuer had not led any evidence that the presence of a basket holder would have made a difference. The Sheriff highlighted “There was no contrary expert evidence on risk assessment, health and safety policies, systems of or frequency of inspection, the use of basket holders or where customers leave baskets”.
This case was a good reminder that the pursuer must state a case and then must lead evidence to prove that case. Where they fall short of doing so, their case is doomed to fail.
CCTV was a feature in both of these cases and in a number of the EL decisions that we will consider in the next article. CCTV is “real evidence”. That is to say, the Sheriff can take from it what he or she sees.
It is unsurprising that parties in a dispute do not always invite the Court to make the same inferences from the CCTV footage. Parties are entitled and expected to interpret the evidence in its best light.
Ultimately, the weighting attached to CCTV evidence is a matter for the Sheriff. This can have interesting implications, which will be touched upon in further articles.
In broad terms, the recent pattern of public liability claims proceeding to proof in ASPIC is that they tend not to be successful. The Court’s approach is reasonably clear and consistent. While an occupier, such as a retail store, does owe customers a duty of care, it is one of reasonable care. The duty is not to ensure that the premises are completely free of danger and it is not a strict liability situation.
For fear of stating the obvious, like all cases, the pursuer must prove their case. Ultimately, occupiers are required to consider knowledge of a risk, the probability of injury and appropriate control measures. In situations where occupiers can evidence this process, they are in a strong position to defend these types of actions. However, if the pursuer is to challenge an occupier on the taking of care, it is unlikely to succeed in the absence of evidence (lay, comparator or expert) of what “real world” reasonable care looks like.
For further information please contact:
Khadija Sarwar, Solicitor at ksarwar@keoghs.co.uk
John Stringer, Solicitor at JStringer@keoghs.co.uk
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