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SUPERMARKET WINS APPEAL OVER BASKET TRIP

Catherine Hines v Icelands Foods (Newcastle upon Tyne County Court 6 August 2010)

The Claimants injury occurred while she was shopping at the defendants supermarket in Middlesborough. While she was passing through the checkouts, she tripped on a stray shopping basket, seriously injuring her shoulder.

Although Iceland had asserted, unsuccessfully, that the Claimant was the author of her own misfortune, it also argued that there was no breach of the common duty of care under the Occupiers Liability Act 1957. The judge applied the leading case of Ward v Tesco (1976), where it was held that once the Claimant has proved that there is a danger on the floor, there is an evidential burden upon the defendant to explain how the accident could arise consistent with the exercise of reasonable care.

Iceland submitted that it had a reasonable system of management inspection where managerial staff inspected the area every 5 minutes or so, and were instructed to prioritise the removal of hazards. The trail judge rejected this submission, finding from the Claimant on liability. In his view, the inspection system described by the store manager was too vague and imprecise to discharge the evidential burden. Iceland appealed.

Icelands appeal was heard by a circuit judge, His Honour Judge Walton. He accepted that it was unreasonable to expect some precise time laid down for the inspection of each aisle. Crucially, he accepted that the Court of Appeals decision in Tedstone v Bourne Leisure (2008) had modified the evidential burden on defendants. He found it is open to defendants to show that the accident would have been at least equally likely to have happened, on the balance of probabilities, if there had been a proper and adequate system in place.

In this light, the only system that might have prevented the accident was to have an employee constantly checking the aisles, which the judge considered unrealistic. Accordingly, the appeal succeeded.

This case is welcome, firstly because it reassures potential defendants that the burden of proof should not be used in a heavy-handed fashion whenever there is a tripping or slipping hazard. Secondly, it demonstrates that the Court can take a common sense approach to the kind of monitoring systems that are foreseeable in practise.

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