This is the second part of a 2022 roundup of Keoghs Scotland Casualty team’s unreported cases from ASPIC (you can find part 1 here).
This article will offer an overview of the Employers’ Liability decisions and observations on how the Courts are dealing with these types of claim in Scotland.
This case concerned an accident in a car park of a large DIY store. The pursuer worked as a manager for the defender. He drove to a car park at one of the defender’s stores to meet fellow members of staff in order to arrange to car pool to a management meeting. He arrived early in the morning, around 7am on 13 March. It was cold with temperatures around freezing. Warning signs indicating the possible presence of ice had been put up the day before. The pursuer stepped out of his car and fell immediately. The pursuer alleged that ice covered the car parking space and grit had not been spread in that area. The pursuer accepted that a gritting contractor had earlier carried out salt spreading but contended that the contractor had overlooked the area in which he fell. In addition, the pursuer argued that the defender’s inspection of the car park was not sufficient.
The defender’s evidence was that the car park had been treated at 1:44am by a specialist contractor who monitored temperatures and attended if required. In addition, the defender’s store manager had carried out a visual inspection around 5:00am, after she arrived at the car park and prior to the store opening. The store manager observed that the car park had been gritted and she did not see any patches of ice. However, the store manager accepted that later when she went to see where the pursuer fell, there was a patch of ice where the pursuer slipped that she had not previously seen.
The Sheriff commented that it was striking but not surprising, given their shared background as store managers, that the pursuer and the defender’s store manager described a broadly similar approach to checking the car park of a store on arrival. The pursuer said he would scan the car park for hazards when he got out of his car to walk to the store. The pursuer accepted that when inspecting the car park as a manager, he did not inspect every bay.
Extent of the duties of reasonable care
The duty on the defender was to take reasonable care. The Sheriff found that the combination of the arrangement for attendance by a gritting contractor when the temperature was forecast to be below zero, and the inspection by the store manager, was a reasonable precaution against the risk of ice in the car park. Although the store manager would not have had sight of every parking bay when inspecting, she would have been able to form a view about whether the earlier gritting had been sufficient across a broad section of the car park, and so her inspection was a reasonable one.
This case concerned an accident in a department store. The pursuer worked for the store and was in the process of clearing up plastic packaging after having put out new stock. She deposited the rubbish in the warehouse and returned to the shop floor via a secure door. A short distance after returning back to the shop floor, she slipped and fell on a small plastic bag.
The pursuer gave evidence and led no other witnesses. The defender elected not to lead any evidence.
The pursuer’s evidence was that the bag was from the defenders’ store but that she did not know who had dropped it. She accepted that it had been present on the floor for no longer than 5 minutes. The pursuer essentially had two legal cases. The first was that it was reasonably practicable for the walkways to be cleared and maintained in good condition. The Sheriff was of the view that this was not the correct legal test. The Sheriff found that the duty on the defenders was one of reasonable care in the particular circumstances. There was no duty on the defenders to ensure that the premises were completely free from danger. In the end, the pursuer sought to make out only a vicarious liability case for the unknown employee who had allegedly dropped the bag.
Failure to prove due to insufficient evidence
In a short judgment, the Sheriff found that the pursuer had failed to prove her case. She had offered insufficient evidence to entitle the Court to hold or draw a reasonable inference that liability or vicarious liability was established. The pursuer had failed to offer to prove what a reasonable period of inspection would have been. On any view, in the exercise of reasonable care, a system of inspection of all the walkways every 5 minutes or less would not be reasonable.
In terms of vicarious liability, it was speculative who was responsible for the bag ending up on the floor or how that happened. The pursuer did not know and there was no other evidence before the Court.
This was a novel case. The pursuer argued that a sack race was a dangerous activity that merited a specific risk assessment and involved “work at height”.
The defender was a clothing retailer who had arranged a nationwide sports day for their staff to boost team morale. One of the team building activities was a sack race. A large, clear space was available in the stock room, which had a polished concrete floor. In advance of the race, the pursuer’s supervisor carried out a general inspection of the area for hazards. Staff were told to jump in the sack and not to run. As the pursuer took part along with two colleagues, she went over her ankle and fell. The incident was covered on high quality mobile phone video.
The defender argued that a dynamic risk assessment had been carried out and that it took reasonable care for the pursuer’s safety. The pursuer was also given the option of taking part. It was also contended that work at height involved moving from one level to another. A sack race simply did not count as work at height.
Low risk and fun activity
The Sheriff agreed with the defenders and held that the sack race was a low-key fun activity for employees. It was not inherently complicated. It did not require particular training advice. The video footage showed that it was a fun activity. The location was within a well-lit stock room. There was no obvious hazard. Although there was a risk of injury, it was low. The informal risk assessment carried out by staff was suitable and sufficient in the circumstances.
A common thread running through the cases was the extent of the duty to take reasonable care. In many ways, given that pursuers are no longer able to rely on strict statutory breaches, the cases are similar to the Public Liability claims discussed in Part 1. Unable to rely on a shift of onus, the pursuer must now prove that the actions or inaction of the employer amounted to a failure to take reasonable care. The pursuer runs a significant risk in deciding not to introduce any evidence to the Court of what “real world” reasonable care looks like and why the employer ought to have done more.
In the majority of circumstances, the defending employer will be successful if it can demonstrate that the potential risk was considered and action taken to address it, unless it was a low risk requiring no particular precaution. Absolute safety is not the legal standard. Employers’ Liability law has developed in that sense - in that the effective presumption of liability that endured for many years before 2013 (following the Enterprise and Regulatory Reform Act), is now barely visible in the rear view mirror.
Khadija Sarwar at firstname.lastname@example.org
John Stringer at JStringer@keoghs.co.uk
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