System ‘…designed to produce boredom’ failed to discharge Duty of Care
- By James Ferguson
The Court of Appeal in Dublin recently considered a case which turned on whether simply having a system in place sufficed to discharge the duty of care of an occupier to its visitor.
On 21st August 2017, the 83 years old Plaintiff slipped and fell in a Dunnes Stores in Cork, injuring her right hip. She required surgery to replace half the hip with a prosthetic.
CCTV showed the incident to have occurred at 1.03 pm. Dunnes maintained that the area had been swept at 12.58 pm. Had the spillage occurred in the intervening five minutes, the onus on the Defendant ‘to establish that their system of care at the time was sufficient so that liability doesn’t attach to them’ would have been discharged.
At first instance
The High Court judge noted from the CCTV that the employee tasked with brushing the floor was ‘looking straight ahead’ and even conceded on cross-examination that ‘…the work was boring, and the system was designed to produce boredom.’ Training did not extend to how vigilant an employee should be in conducting such a task.
Although a fifteen-minute cleaning circuit was enough to discharge the onus on the defendant… ‘a diligent lookout for spillages was also necessary’.
It was held, on balance, that the spillage occurred between 12.40 pm and 12.58 pm. The Plaintiff was awarded €102k in damages.
Dunnes appealed on the issue of causation whilst accepting that the Plaintiff fell on its premises and that the cause of that fall was a spillage on the floor.
The nub of the appeal is that the trial judge held against the defendant on a basis that was far from clear and which was not grounded on the evidence.
The Court of Appeal, in an electronic judgement, concluded:
While the trial judge’s analysis may not have been as detailed or forensically comprehensive as one would have liked, in my view she did not offend the principle that the broad case on both sides had to be analysed. I am satisfied that the judgment contains a sufficient analysis of the evidence before the trial judge which led her to conclude as she did.
The Appeal was dismissed.
Having a system in place is one thing, ensuring it is effective is another!
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