Injured due to slipping in a supermarket, or shop? Do you have a claim for compensation?
- December 9, 2017
- Graeme Kirkham
- No comments
Stories on the news about compensation payouts due to slips and falls in shopping centre and supermarket, provoke comment by the public.
It appears many may not appreciate the obligations shops have to their visitors.
It also appears there are some myths out there. This article seeks to dispel such myths about slips and falls, which occur with frequency.
First, some general comments/observations:
- Supermarkets, shops, or other occupiers of premises, owe a duty of care to their visitors. As commercial operators, they make profits out of their customers. The law defines their obligations and therefore liability in the case of accidents on their premises.
- Most, if not all occupiers have Public Liability Insurance, or as in the case of the larger entities, may be self-insured.
- Insurance companies settle cases, when they accept there is a risk of liability, or alternatively courts consider cases and hand down decisions based on the evidence presented, and by applying the law.
- Many cases succeed, just as many cases fail. One would usually expect that a payout only occurs, when it is warranted on the facts, and the law.
- Insurance companies and self-insured occupiers, have “deeper pockets” than the usual injured person, which funds are used to investigate and resist paying out claims, if the circumstances warrant it. Some cases are lost because the injured person lacks “credibility”. We have all seen current affairs programs showing surveillance activities of a alleged “injured person” exhibiting what appears to be unrestricted behaviour.
- Lawyers traditionally handle such cases on a no win no fee basis, thereby accepting the risk of not getting paid, if the case is unsuccessful. We tend to carefully scrutinise cases, before accepting that risk. I will back my clients, notwithstanding the perceived unequal financial resources of the parties.
- In my experience, many people may not appreciate how debilitating an injury may be, until they experience it themselves. Some of these people, who previously “bagged” such claims, change their mind after such a personal experience.
- It is dangerous to compare cases, as every case differs on its merits and factual circumstances. For example, a young person deprived of a lifetime of income because of an injury, may have a greater loss than a person approaching retirement age. There are also many components of damages, which are considered, and which vary from case to case.
- Laws can differ from State to State. In general:
- There are time limits to commence legal proceedings. Some States have 3 years.
- The injured person needs to prove negligence (breach of duty of care).
- The fact that an accident occurs on premises, does not in itself mean there was negligence on the part of the occupier.
- Lawyers will look at many factors including:
- Was there a system of cleaning and inspection? If not, potentially a good claim.
- If so was such system a reasonable system in all circumstances? If not, potentially a good claim. Several cases decided by the courts, have determined that inspecting the floor every 20 minutes may be an adequate system of inspection. Inspection in high risk areas such as food courts in shopping centres, may be required of greater frequency. It all depends on the facts of the case.
- Was the system complied with? If not, potentially a good claim.
- How long the substance was on the floor, as this may have relevance to whether a breach occurred. For example, if another customer dropped liquid 30 seconds before and other person fell, it will be harder to argue that the store was negligent.
- Was there CCTV covering the incident and extending a reasonable time before the incident occurred. This will assist in ascertaining the system and/or compliance.
- How did the substance that the customer slipped on, get onto the floor in the first place? For example, many supermarkets use flower display stands, which involve water in buckets, with risk of water being dripped on the floor. This may be argued to be a deficient design, thus creating liability.
- Did the occupier know of the presence of the substance, which caused the slip? If they did, they have a duty to preserve and protect the area, until the spillage is cleaned. Several cases have flowed from the occupier being aware of the danger, but failing to act in a timely and/ or adequate manner.
- To what extent did the customer keep a proper lookout. Failing to keep a proper lookout, creates a risk that some liability is apportioned against the customer. Depending on the circumstances, this apportionment against the customer, may be low, or on occasions high. When considering the circumstances, lawyers would consider environmental matters including- distractions caused by the shop display, or the volume of pedestrian traffic.
If you find yourself in the unfortunate position, of being injured, please call me, and make use of our free no obligation first consultation.