Personal Injury Claims
Trips and slips on wet floors or discarded produce in supermarkets and other shops are fairly common. When making this type of claim, be prepared for a robust defence from the store - they only have to take reasonable steps to protect your safety so they often argue that the spillage or obstacle had not been present long enough for them to have been aware of it, and/or that they regularly inspect their premises and tidy up any spillages or discarded produce found on those inspections. They usually back this up with inspection rostas.
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Parliament imposes a general duty of care (the common duty of care) on all occupiers. Shopkeepers are occupiers, so ordinary law abiding shoppers, as visitors to the shop, are owed a common duty of care by a shopkeeper. There is also a duty to such shoppers under the Occupiers Liability Act 1957.
Section 2 (4) of the Occupiers Liability Act 1957 deals with warnings which may be displayed in shop premises, for example, where there has been a spillage of oil. If an accident occurs despite the warning sign being displayed, it is often the case that the issue for the judge will be whether the warning given about the spillage was sufficient to enable the area to be used with reasonable safety. The judge would have to consider the words used in the warning sign, the specificity of the description of the danger, the place where the warning sign was sited and their number, and the earnestness of any oral warnings. For example, a casual, perhaps flippant delivery of an otherwise adequate warning may render a warning insufficient.
Under the Occupiers Liability Act 1957 the occupier, in this case the shopkeeper, must be prepared for children to take less care than adults, so in some situations liability may be established against the shop for a child’s accident where, had the victim been an adult, the claim would have failed. However, if a child does have an accident in a shop, be prepared for the store to argue contributory negligence if the child who had the accident was unsupervised at the time of the accident. Contributory negligence is a partial defence for a defendant, where some act or omission of the claimant can be described as negligent. For example, a child whose parent, perhaps momentarily distracted in a DIY store, doesn’t notice that their child has wandered off. If the child then has an accident the defendants might argue that the parents were partially to blame for the accident as the child was not in their control at the time the accident occurred.
In general the law could, and does, impose a duty on an occupier to take at least a minimum care to ensure that unauthorised entrants do not meet with disaster. A fleeing shoplifter is therefore probably owed the common duty of care under The Occupiers Liability Act 1984. However, there are two other differences which should be noted between the duty of care to lawful visitors and that to trespassers. First, the 1984 Act only applies to personal injury. The 1957 Act is not so limited. This means that, in effect, the occupier carries no liability for damage to a trespasser's property, however expensive. Second, the 1957 Act allows that a visitor may waive his protection under the Act by a clear disclaimer, subject to the provisions of the Unfair Contract Terms Act 1977. The 1984 Act makes no such statement. It is not entirely clear why a person is allowed to waive his responsibility to lawful visitors, but not to trespassers.
Under the Unfair Contract Terms Act 1977 “[a] person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude liability or restrict liability for death or personal injury”, so the victim is allowed to voluntarily waive their right to claim, but the store cannot force such a waiver on the victim.
Remember that you can only claim what you can prove, so the importance of a detailed description of the accident, a sketch plan, photographs, but most importantly independent witnesses as to how long the defect or spillage had been present, cannot be stressed too highly.
Make sure that the accident details are reported to the shop and that an accurate description of the accident appears in the stores Accident Report Book, preferably at the time the accident occurred.
Once fault has been established against the store or shop, the next step in your claim are to prove your injuries, which we achieve by obtaining a medical report, and to establish your financial losses.
For information about recovering your financial losses as a result of an accident in a shop or supermarket, visit our page Proving Your Financial Losses Following An Accident.
Please speak to a member of our Personal Injury Claims team for professional advice about your accident claim.