By Richard Kendall, Trainee Solicitor
As the rather tongue in cheek and frankly appalling attempt to paraphrase an arctic monkeys track above suggests this blog entry concerns the gauntlet that one runs when enjoying a night on the tiles.
I took the above photograph on 8th July 2012 at approximately 2am on the main dance floor in Oceana, Swansea. Pictured are a plethora of hazards! There are beer bottles, small shards of broken bottles other debris and what’s more the whole floor is totally soaked. If I was presented with this photograph by a claimant who had fallen moments earlier I know what I would have in my mind.
I noticed these hazards because as I walked across the dance floor, I myself almost fell on a one of the deposited bottles.
Club owner’s like the owners of any other land or premises in the UK are subject to the duties and ramifications of the Occupiers liability Acts. I say Acts because there are of coursed 2 of them:
1. The Occupiers liability act 1957 provides for pedestrians who are lawful visitors to the premises. In that they have been given, expressly or impliedly permission to frequent the area.
2. In the alternative the occupiers Liability Act 1984 provides for those people who are other than lawful visitors.
The 1957 act is the more commonly used. This, in effect, grants to the visitor protection by conferring a duty of care on the landlord namely “the common duty of care”. This means that the landlord or owner of the premises has 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 in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
Essentially in the context of the photograph above, the landowner must ensure that a visitor is not exposed to a risk of injury from any traps or tripping or slipping hazards. Above is a total violation of this principal. I and all other occupants of the premises were exposed to loose bottles wet and slippery floors and broken shards of glass. Frankly given the state of the premises it is a miracle that no one was hurt.
That is not to say that the land owner or occupier must go to herculean efforts to ensure the premises ia immaculate at all times. Frankly that would be unrealistic and this realization has not been lost by the courts as in Ward V Tesco . In Ward an elderly lady had attended the supermarket Tesco and had slipped and fallen causing injury as a result of a spillage of yoghurt. An action was brought against Tesco pursuant to section 2 of the Occupiers Liability Act 1957. In summing up the case Lawton LJ expressed that as the occupier the supermarket had a responsibility to keep the floors clear and that the accident would not have occurred in the ordinary course of events had the spillage been cleared. Lawton LJ went on to state that:
“If an accident does happen because the floors are covered with spillage, then in my judgment some explanation should be forthcoming from the defendants to show that the accident did not arise from any want of care on their part; and in the absence of any explanation the judge may give judgment for the plaintiff.”
Essentially Ward gives a thorough guidance on the defendant’s duties to manage the potential risks arising from spillages. Particularly in relation to venues such as supermarkets and nightclubs it must be shown that a system of inspection was in place and that the system of inspection was effective, in that inspections took place on reasonably regulars basis evidenced by some form of record confirming that an inspection had taken place and no hazards or traps were observed.
In the absence of this Ward gives clear guidance that defendant should be held liable.
Conversely many occupiers, Tesco, McDonalds and ASDA to name just a few now operate a catch all system against spillages referred colloquially as ‘clean as you go’. This system operates to circumvent the need for a system of inspection whereby all employees are trained to clean on a reactive rather than proactive basis. In Piccolo v Larkstock the claimant was injured when he slipped and fell on falling flower petals. The defendant operated a reactive system of cleaning, clearing petals as and when they fell. The court held this was insufficient and that a proactive system would be required to discharge the common duty of care.
The court noted that the clean as you go system was reactive only and found that a proactive system of inspection and cleaning would have far better managed the risk. Save to say the catch all clean as you go does not often impress the courts especially when it can be shown that it was not in operating effectively.
That is not to say that some people do not cause their own misfortune. Those who perform reckless acts at their own behest take the risk for themselves. For example on the same night I observed a group of local lads standing one at a time on an upturned pitcher taking turns to kick it out from under each other’s feet. You have to wonder!
That said, in recent years we have undertaken a multitude of cases which present a scenario as pictured above. If you or anyone you know has fallen and been presented with an image like the one I came across, call us today!