Vasey v Cooperative Group Ltd

Article

14 February, 2013

The facts of Vasey v Cooperative Group Ltd were considered by Deputy District Judge Temple at the Newcastle upon Tyne County Court on 7th February 2013.

Mr Vasey visited the Somerfield Store in Ryton, Tyne and Wear on 9th September 2009 and unfortunately, slipped on a broccoli leaf in the produce section. Broccoli was sold in a pre-packed form and also fresh. A mat was placed in front of the display of loose broccoli, mushrooms and grapes only. The claimant's slip was in the areas where broccoli (amongst other vegetables) was sold pre-packed and here, there was no mat. The claim was brought under section 2 of the Occupier's Liability Act 1957 which provides for the common duty of care, that is to take such care as is in all the circumstances of the case reasonable to see that the visitor will be reasonably safe in using the premises. The claimant argued that by the lack of an anti slip mat at the point of sale and the lack of a properly documented system of inspection and cleansing of the floor then, the Defendant had failed to ensure that the floor of its store was kept clear of broccoli or indeed any other matter.

On behalf of the Defendant, it was argued that there was matting, however the matting was not required in any event as Mr Vasey slipped in an area where there would ordinarily be no mats. Further it was argued that there was a reasonable system in place to identify hazards and if there was a defect in that system then, no system could be devised to prevent such an accident. The system relied upon by the Defendant is (i) the cleaning of the shop floor each morning by cleaning staff; (ii) the positioning of mats in key areas within the supermarket; (iii) a 'rumble' system where staff would walk around the whole of the store to check for hazards on three occasions per day and one such 'rumble' had taken placed between 1pm and 2pm ( the claimant's accident occurred at 2.30 pm) and (iv) the 'clean as you go' procedure in which all staff were trained.

Mr Vasey accepted in cross examination that the location of his slip was not a high risk area.

The witnesses for the Defendant, stated that, in accordance with policy there would be a minimum of two mats which were placed in front of the loose produce , that is, loose mushrooms, grapes, broccoli, in the fresh produce aisle and in front of the flower display. Moreover, mats were never placed in areas of pre-packed products. One particular witness was able to offer evidence of his presence in the very aisle where the accident occurred, carrying out code checks, only ten minutes before this accident, leaving the area to return the machine to be recharged. This witness confirmed that had the vegetable matter been on the floor, he would have seen it and cleaned up such a hazard and that it would have been a disciplinary offence not to have done so and his evidence was accepted.

Deputy District Judge Temple found that the presence or absence of matting would not have prevented Mr Vasey's accident in that it would not have prevented the broccoli falling and being transported. Despite the fact that the Defendant was not able to produce CCTV evidence or documentary evidence of 'the rumble' or its 'clean as you go' system, the Judge accepted the live evidence from the Defendant's witnesses and in particular the evidence of the employee who stated that when he left the fresh produce only ten minutes before the accident, there was no vegetable matter on the floor. The Judge said that Mr Vasey's accident was not something for which the Defendant could be blamed. It would be too high a burden on the Defendant to, for example, employ a sweeper to ensure that a reasonable system was in place.

The claim was dismissed and Mr Vasey ordered to pay the Defendant's costs.

Forbes comment:

Deputy District Judge Temple based her decision on the known case of Ward v Tesco [1976] 1 WLR 110. This is a case, where despite the lack of CCTV evidence or documentary evidence of either the 'rumble' or the 'clean as you go system', the credibility of the Defendant's employees was such that it proved as effective as any documented system, a system which could be said to give reasonable protection to customers, sufficient for the Judge to find that it was a 'proper' system as per Ward v Tesco.

For more information please contact Anna Mychalkiw at our Manchester office, Church House, 90 Deansgate, Manchester, M3 2GP. Tel: 0161 918 0000 or email: Anna Mychalkiw

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