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Customer injuries do not always mean a compensation payout

19 September 2011
Customer injuries do not always mean a compensation payout

Would you be held responsible if a customer falls off a stool and injures themself at your bar? Roddy Macleod looks at whether someone who suffers an injury can make a claim for a risk they've willingly accepted

The Problem
A customer recently injured herself in my bar falling off a table - and now she is threatening to sue. I am unsure as to whether I can defend the business on the basis that she was aware of the risk when she got up on the table. Is that a good enough defence?

The Law
Compensation claims are usually brought placing reliance upon allegations of negligence or that you are in breach of a duty under a statute, the obvious one in this case being the Occupiers Liability Act 1957.

There is an overlap between the two concepts but essentially they establish that an occupier in certain circumstances owes their visitor a duty of care. The act states that the common duty of care does not impose on any occupier "any obligation to a visitor in respect of risks willingly accepted … by his visitor". In essence, there is no liability on the part of the bar owner for risks willingly accepted by his customer. The position in negligence is the same.

In recent years, the courts have woken up to the fact that people can have accidents and sustain serious injury but not have anyone else to blame for that injury other than themselves. Simply being badly injured does not give an entitlement to compensation.

The most recent example of this trend is the case of Ruth Geary v JD Wetherspoon Plc (14 June 2011). Geary attended the premises of a Wetherspoon's pub in Newcastle and decided, whilst not drunk, to slide down an ornate banister. Unfortunately for her she suffered devastating injuries - and her claim against the pub chain failed.

Geary's claim was pursued on the basis that Wetherspoon's was negligent and that it was in breach of duty under the Occupiers Liability Act. Notwithstanding that the banister was below the current building regulations prescribed height and the fact that there had been previous accidents, the court rejected her claim.

Expert Advice
On the basis of the above, a claim where a customer has fallen off a table should be possible to defend firstly on the basis that there is no duty of care in relation to a visitor in respect of risk willingly accepted by them.

Following on from that, the claim can be defended on the basis that the bar owner did not owe a duty of care to protect the customer from his or her own voluntary assumption of an obvious and inherent risk.

When considering liability for an occupier, the best approach is to keep things simple. There is nothing unsafe about bar premises which contain tables. As such, there can be no liability under the Occupiers Liability Act and thus no liability in negligence either. The danger was created by the decision to stand on the table. The table was not defective, the injury has been caused by what the customer chose to do upon it.

The fact that the risk of injury was not only foreseeable but foreseen (there had been previous accidents in Geary's case), does not establish liability.

Check list
Some accident claims are successful simply because the evidence cannot be produced to dispute them. Please ensure, therefore, that you:

â- Employ trained staff to deal with situations such as these.
â- If an accident does occur, inform your public liability insurer promptly.
â- Use your common sense - even if you will not necessarily be liable for a customer falling off a table, still tell them to get off.

Beware
If you do not inform your insurer of the accident promptly then it can refuse indemnity under your policy. If the customer suffers serious injury or is rendered wheelchair bound then you could be looking at a claim worth more than £5m.

Contact
Roddy Macleod is a partner and head of the commercial insurance team at WeightmansRoddy.macleod@weightmans.com

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