27 05 2020 Insights Litigation & Dispute Resolution

Desmond -v- Dunnes Stores – A Template for Major Retailer Cleaning Systems?

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On 21 August 2017 at Bishopstown Shopping Centre in Cork, the Plaintiff slipped and fell, suffering a fracture to her right hip. The Plaintiff subsequently initiated a Personal Injuries Claim against the Defendants, Dunnes Stores, which was ultimately litigated in July 2019 at Cork High Court and subsequently reviewed by the Court of Appeal with Judgment delivered by Mr Justice Faharty on the 6th May 2020.

The contents of the Trial and subsequent Judgment of the Appeal Court are noteworthy for retailers.

In the defence of the case, Dunnes Stores produced a total of 1 hour of CCTV stills prior to the accident, which showed a Dunnes Stores employee (who was an employee with the sole purpose of patrolling the shop floor space to detect and clean possible spillages) traverse the aisle in which the incident occurred roughly every 15 minutes.

Both liability experts for Plaintiff and Defendant both acknowledged that the frequency of the inspection by the employee of the Defendants was adequate.

The Court heard from the liability expert for the Plaintiff who acknowledged that the frequency of the cleaning system was adequate but questioned the vigilance of the Dunnes Stores employee. He pointed to the fact that (on CCTV) the Dunnes Stores employee seemed to focus straight ahead of her rather than carrying out vigilant checks of the entire aisle space.

The Dunnes Stores employee gave direct evidence to the effect that, the task of cleaning the aisles was quite a boring task and that at times her mind could, “wander”

The Liability Expert for the Plaintiff also pointed out that whilst there was training provided as to the frequency of the checks and to the manner in which a spillage should be cleaned; there was no emphasis placed on how employees should be vigilant and alive to spillages throughout the aisles.

Incidentally, the Plaintiff’s Liability Expert also pointed to the fact that the Defendants employee should be retrained on 3 yearly intervals and it had been in fact 5 ½ years since the employee had been trained. It was interesting to note that the Trial Judge dismissed this as being a point of relevance but did take into consideration ultimately that whilst the training contained a detail as to the frequency of checks and the method by which spillages should be cleared, there was no detail in relation to vigilance.

Unfortunately for the Defendants the quality of the CCTV which was a series of CCTV stills could not adequately point out as to when exactly the spillage occurred. It was the case as put forward by the Defendants that the spillage had in fact occurred immediately after the last occasion on which the cleaner traversed the aisle but immediately before the Plaintiff came to harm which would have been a time lag of a mere number of minutes. That does suggest that even the most sophisticated cleaning system could not have detected the spillage in time to save the Plaintiff.

The Trial Judge decided that the Defendants had not discharged the burden in proving when the spillage precisely occurred and in fact, the Trial Judge felt that the spillage had in fact occurred much earlier and it was simply the case that the spillage was simply missed by the Dunnes Stores employee notwithstanding that she had traversed the area.

The Appeal by the Defendants was dismissed.

On appeal, the Defendants pleaded that the Trial Judge’s reliance on the volume of customers that had passed through the aisle earlier in the hour and her concluding that the spillage must emanated from them was an error and there was no basis for this.

The Defendants urged the Court of appeal to consider the fact that a person had traversed the precise area (without difficulty) where the Plaintiff came to harm approximately 2 minutes before the Plaintiff’s fall and that the Trial Judge had failed to adequately consider this point in deciding when exactly the spillage occurred.

Judge Faharty felt that the analysis of the Trial Judge may not have been as detailed or forensically comprehensive as one may have liked but in his view, had analyzed appropriately both sides of the argument at Trial.The view of Judge Faharty was sought with approval by Donnelly J and Collins J.

Learnings for Retailers

1. Frequency of Checks:

It seems now to be broadly accepted that the frequency of checks on a large retail space is deemed adequate at 15-minute intervals.

2. Quality of Checks:

It is not only appropriate to have appropriately frequent checks in place, but those checks must be of a high standard/quality and those engaging in such checks must be vigilant for spillages and notwithstanding an adequate cleaning system in place in terms of frequency, that system must also be executed with quality, precision and vigilance.

3. Training:

Adequacy of training was a consideration of the Court in the above matter in circumstances where the Judge and the liability expert for the Plaintiff (whose evidence was accepted) pointed to the lack of detail in the training program in relation to vigilance during the execution of cleaning duties.

4. Quality of CCTV

The Defendants were relying on one hour of successive CCTV stills.In my experience, the quality of CCTV is a vital weapon in the armory of a Defendant Retailer.In this instance the quality of the CCTV for the Defendants, Dunnes Stores let them down, in circumstances where they were unable to identify precisely when the spillage had occurred. One wonders had the CCTV been of a higher quality, would Dunnes Stores have been in a position to prove the spillage had occurred (as they had pleaded) immediately prior to the fall and it was simply the case that the Defendant cleaner did not see the spillage because it had not occurred when she traversed the locus for the final time prior to the incident occurring.

Practicality V’s Reality

The maintenance of a sophisticated and dedicated cleaning system for an extensive retail space that would ultimately stand up to scrutiny is extremely taxing on a commercial retailer from a staffing/financial and time perspective.

The investment in a high quality CCTV system that can be married with specific and detailed training for staff and with the deployment of dedicated cleaning staff, who would traverse the retail space at 15/20 minute intervals and exercise a large degree of vigilance and care would, in my view, negate substantially against any public liability claim that a retailer may ultimately face.

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