Court finds an employee pushing a trolley owes same duty as an average shopper

Article

01 May, 2015

Divers v ASDA Stores Ltd

DDJ Bruce

Dartford County Court

Forbes has successfully defended a claim on behalf of ASDA Stores Ltd. The claimant who was aged 2 at the time of the accident, was involved in an accident involving a trolley. A claim was pursued in negligence and under the Occupiers Liability Act. It was alleged that whilst the claimant was shopping with his mother, an ASDA employee moved a trolley towards him causing him to move into his mother's shopping trolley thereby sustaining an injury to the his mouth.

The employee who had been pushing the trolley, vehemently denied that he had collided with the child and further denied that he was moving too fast. This was supported by contemporaneous CCTV evidence. The employee gave evidence that he was moving at an average speed and was simply taking a shopping trolley to an elderly lady. There was nothing unusual about his actions. He gave evidence that he had seen the claimant in his peripheral vison and he turned around to look behind but concluded he had not collided with the claimant so carried on.

After viewing the CCTV evidence, the judge was satisfied that the employee did not make contact with the claimant. The judge also confirmed that he was "travelling at a controlled pace, not faster". The CCTV evidence showed that the claimant was startled. He was holding onto a trolley and jumped, hitting his face. Whilst it had not been pleaded that the trolley was defective, at trial, the claimant's mother gave evidence that she had felt a blunt rough edge on the trolley however she was unable to provide any evidence in support of this assertion.

The Judge commented that the employee "owed no higher a duty than an average shopper". He did not push the trolley in a negligent manner and he was keeping a proper look out. The Judge was also provided with Risk Assessments and he was therefore satisfied that had the trolley been dangerous it would have been removed. The claim was therefore dismissed.

Forbes comment

This case once again demonstrates the value of CCTV evidence which if preserved can provide invaluable contemporaneous evidence when defending a claim.

For further information or advice please contact Nigel McCloy on 0113 244 6688 or email Nigel McCloy

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