Introduction
So called “slip, trip and fall” claims involving injuries that occur on public or private property can be perceived as an easy way to obtain compensation, but the reality is that these claims, which often involve very serious injuries, can face very significant challenges. Some of these challenges are examined in this article.
Supermarkets
Supermarkets are a common location for these events, but the principles involved can extend to any commercial business where entrants are injured.
The starting point is that the operator of a supermarket is not liable to compensate every adverse event that occurs. The mere fact that someone slips on a water or any other substance spilled in a supermarket aisle will not entitle that person to compensation, however badly injured they are. We need to go deeper and look at the reasonable steps the supermarket could have taken to prevent the injury.
Supermarkets commonly maintain cleaning schedules showing the times at which particular areas of the supermarket have been cleaned. As long as a supermarket operator can produce cleaning schedules showing a reasonably regular clean of an area where a substance has been spilled, a claim is unlikely to succeed. This is because the injured person can do no more than show that the substance was spilled at some time between the reasonably regular cleans. What is regarded as “reasonably regular” is not exactly defined but it is thought that a clean every 20 to 30 minutes will be accepted by the courts as reasonable. A requirement that cleans be undertaken more regularly than this would likely be regarded as imposing an undue financial burden on the supermarket operator.
There are exceptions to this. Sometimes it is possible to prove via witnesses that a supermarket employee observed the spillage and did nothing about it. In other cases, the substance appears in an area where one can expect the substance to be, such as a fruit and vegetable section where it is typical for water to drip off produce and refrigerated displays onto the floor. In the latter case, because it is open to a court to find that the supermarket should be aware that water on the floor is a common occurrence, something more than 20-30 minute cleans is likely to be required, such as rubber non-slip mats. The absence of such measures will generally make the supermarket liable irrespective of what cleaning regime they have in place.
Of course, where a supermarket actively introduces a hazard, such as where they are mopping floors, then warning signs and other measures will be required to minimise the risk to entrants.
Public Footpaths
Another typical scenario is trips and falls on public footpaths, which can also result in very significant injuries. Pavers can become uneven creating cracks and edges that are hard to see and yet pose a significant hazard.
Very considerable legal barriers lie in the way of such claims. It has long been the case that a public authority such as a local council will not be liable for so called “non-feasance” being a failure to do something such as lack of maintenance of a footpath so it falls into disrepair. This is in contrast with so called “mis-feasance”, whereby the public authority road authority creates a hazard by doing something to the footpath such as conducting works and failing to impose sufficient safety measures around those works.
This protection of public authorities has for some time now in Queensland been reflected in legislation with the Civil Liability Act 2003 providing that a public authority is not liable to repair a road or keep a road in repair (“road” in this case include a footpath). The provision goes on to say that an exception will be made if the authority had “actual knowledge of the particular risk the materialisation of which resulted in the harm”, which essentially means that if the claimant can produce evidence of prior complaints being made about the particular hazard to the public authority such as a local council this may serve to help the claim succeed. Getting this type of evidence is never easy and tends to only arise in particular circumstances.
In summary, the ability to claim compensation for an injury that occurs on a footpath is extremely limited.
Other locations
Of course, many “slip and fall” injuries do not fit neatly into the categories of supermarkets and footpaths and determining liability is a matter of looking at the individual scenario. Some general questions that can be asked are:
- Is the area where the injury happened somewhere where the occupier could reasonably expect people to be walking?
- Is the hazard obvious, i.e., could it simply be avoided by someone paying attention, or is it hidden?
- Is the owner/occupier aware of the hazard?
- Are there steps that the owner/occupier could have taken to reduce the hazard and are those steps reasonable or would it impose an excessive cost or burden on an owner/occupier?
A scenario from our experience comes to mind or of a grassed area near a carpark that people often walk across. There is a hole or depression in the grassed area which the owner is aware of but simply mows over it so that the growing grass fills the hole making it difficult to see. A person who steps into that hole and sustains a fractured ankle will probably have a good basis for a claim. Contrast that position with a situation where the hole is in a paddock on an owner’s property where few people access. In that scenario It is far less likely that the owner will be liable if someone steps into it.
Summary
Compensation claims for injuries caused by slips, trips and falls can face significant challenges. For those contemplating such a claim there is no substitute for seeking expert legal advice.
