This article explains how the CA approached the issues of breach of duty and contributory negligence in a supermarket tripping case ( Palfrey v Morrisons, Lawtel AC9401225).

Click here to view the picture.

Background findings of fact

The Claimant, aged 79, suffered severe and disfiguring injuries when her toe caught one of the wheels of a trolley, similar to that shown in the photograph, causing her to trip and fall. The trolley had been left unattended in the middle of the aisle in accordance with the Defendant’s custom. It was not loaded to any great extent. The Claimant spotted the pork pies she had been looking for, turned and took 1-2 steps across the aisle to inform her husband when the accident occurred. She had not appreciated the configuration of the trolley, although she was generally aware of its presence having walked down the aisle towards it.

The Defendant’s generic risk assessment stated that stocking trolleys should not be left unattended on the shop floor. The Defendant’s employee accepted that he had left the trolley unattended and that it posed a danger to customers, but claimed to have issued a verbal warning to customers in the vicinity at the time. The Judge rejected the suggestion that the warning had been issued to the Claimant.

The trial Judge found for the Claimant on the grounds that “she caught her foot on a low lying object which was unaccompanied and had no business being there”. However, he also found that such trolleys were in widespread use throughout the industry and that their use was not inappropriate. He regarded the Claimant as equally to blame for the accident, reducing damages by 50% for contributory negligence.

The Appeal

The Court of Appeal commented that the widespread use of such trolleys in airports and DIY stores did not necessarily mean that they were safe for a supermarket floor. Some observations were made that roll cages are more commonly encountered and it is foreseeable that shoppers will be looking at the shelving and displays. Also,  customers do not expect long low lying platorms to be in their path. The Court upheld the finding of primary liability but on different grounds to those found by the trial Judge. In an extempore judgment, the unanimous finding was that the trolley was dangerous in the precise circumstances that it was used such that it constituted a reasonably foreseeable risk of injury. There was no evidence that the Defendant had taken steps to deal with the danger and accordingly the Defendant had been in breach of the common duty of care. LJ Moses and Sir John Thomas (President of the QBD) also found that the Judge erred in finding that the design of the trolley was safe. The Court did not go so far as to say that such trolleys could never be used on a supermarket floor. However, if such a trolley was used it should be placed up against the shelving where it would be more visible and less of a trap. The notion that an employee should be stationed by the trolley giving warnings was considered absurd.

Contributory negligence was reduced to 20%. The Claimant had to shoulder some of the responsibility as she had been aware of the trolley and should have taken more care for her own safety. However, it was plainly wrong to regard her as equally to blame.

Comment

The quality of evidence put forward by the Defendant was particularly poor in this case. There was no risk assessment, no evidence of training, no measurements of the dimensions of the trolley and the only oral evidence put forward regarding the system was from an employee who had never visited another Morrisons’ store. The failure to prepare a risk assessment was central to what went wrong for the Defendant. The case does not break any new law but it does act as a reminder to Defendants that if there is a foreseeable risk of harm, it is likely to be crucial to show that the danger was risk assessed at an appropriate time. Also, in relation to the trolley shown in the photograph, it is clear that supermarkets will need to think carefully about whether it is reasonable to use such pieces of equipment on the shop floor at all.

In relation to contributory negligence, the CA were clear that the momentary inattention on the part of the Claimant made her less blameworthy than the Defendant. That is hardly surprising given the Defendant was guilty of a lack of preparation, foresight and care despite its significant resources and the fact it was operating a multi-million pound business.

Co-authored by Philip de Berry