Slips and trips in the retail sector

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1 Slips and trips in the retail sector IOSH - 8 July 2009 Presented by Helen Devery Partner, BLM Manchester business services construction & property insurance & indemnity leisure media & technology public sector retail transport

2 Introductions About BLM National law firm 8 offices in UK Specialists in insurance litigation and dispute resolution Who I am Qualified in 1994 Partner since 2001 Specialise in liability risk management

3 What we must all avoid

4 The headline statistics Slips & trips are the most common cause of major injuries at work 33% of all reported major injuries 20% of over-3-day injuries to employees 2 fatalities per year 50% of all reported accidents to members of the public Cost to employers 512 million per year

5 HSE survey of IOSH members Slips and trips is a priority area in most members organisations 8 out of 10 members felt that their organisations were committed to tackling the issue Only 13% felt that their organisations were fully effective at controlling the slip and trip risk Less than 1 in 10 felt that good practice was always implemented in their workplaces and that workers were fully committed to co-operating to reduce risks

6 Retail statistics In 2007/08, handling, lifting or carrying accounted for 38% of reported injuries to workers Slips and trips accounted for 27% Source - HSE

7 The Occupier s Liability Acts (OLA) The liability to visitors is covered by the Occupiers Liability Act 1957 and the Occupiers Liability Act 1984 The 1957 Act deals with lawful visitors and the 1984 Act deals with trespassers

8 Liability under the OLA The common duty of care is a duty to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there... Interestingly, the Act acknowledges that... an occupier must be prepared for children to be less careful that adults... [S2 (3)a].

9 The workplace legislation Workplace (Health Safety and Welfare Regulations) 1992 Regulation 12 (1) Every floor/traffic route shall be of a construction that the floor/surface is suitable (2) (b) every floor shall have effective means of drainage Palmer v Marks & Spencer 2001 Susan Ellis v Bristol City Council (2007)

10 Civil claims - employer s duty of care To succeed in a claim for personal injury the employee must prove on the balance of probabilities that the employer has breached their duty of care to their employee The employee must also establish on the balance of probabilities that their injuries have been caused or materially contributed to by the employers breach of duty Whilst in theory the burden of proof is on the employee, if they submit a reasonable argument, the burden can shift to the employer to disprove the claimant s case

11 The challenge for you Once a court makes a finding, that there was a substance on the floor such as to make the surface slippery, the burden shifts from the claimant to the defendant to show that they have done all that is reasonably practicable to ensure that the floor surface is kept free of obstructions and from any article or substance which may cause a person to slip, trip or fall

12 The role of contractors A source of claims Cleaning contractors Control and supervision Indemnity?

13 Defending slips and trips A thorough investigation Good evidence - photos help! Witnesses negative and positive statements Documents to show cleaning process, inspection regime etc (Ward v Tesco Stores Ltd 1975) Take control of contractors Employees disciplinary action?

14 In our experience.. Signage Matting Footwear Adverse weather conditions and adequate response What is a reasonable cleaning regime? Communication to all staff/contractors Regular inspection regimes and proof! Fraudulent claims It is important to respond effectively

15 Fraud the statistics (1) ABI survey: 40% thought it acceptable to exaggerate an insurance claim : Number of claims up 17% to 107, : Overall cost increased 30% to 730m

16 Statistics (2) Perpetrator Victim Region Customer Management Other Commercial business Other North East Scotland South West & Wales Employee Financial inst. Midlands Investor London & SE Professional criminals Government North West

17 Our tips and techniques Spot it first Types of behaviour? opportunist organised repeat malingerer Commercial, 9% Types of claim Travel, 4% Creditor, 2% Property, 55% Motor, 33%

18 Be aware - Health and Safety Offences Act 2008 In force 16 January 2009 Quadruples the maximum H&S fines in the lower courts, from 5,000 to 20,000 Custodial sentences now an option for most H&S offences in all courts up to 12 months now available to magistrates to 2 years months now available to crown court

19 In summary Slips and trips can be defended but require you to take action Challenge your systems and review and audit Challenge opportunist claimants

20 Questions and comments Contact: business services construction & property insurance & indemnity leisure media & technology public sector retail transport

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