Injury in Store - no luck

[mjjc8486]

Hi,

 

After some general advice. My son was injured in store on 2/6/13. Managers did not do accident book or anything, or take details until I insisted on them taking the details. They did not report injuries. One of the staff said it was not my sons fault. (A display unit fell on top of him - he was not messing around etc, he was just playing with a laptop that he was invited to do). CCTV would confirm this, but they have not got the CCTV yet apparently. There were witnesses etc.

 

I emailed them on 3/6/13 and had a reply on 11/6/13 saying that I should keep my son under more control. My son is 5, he was not messing around, again confirmed by witnesses incuding staff, and CCTV would confirm.

 

I complained about response and was promised a reply, which I had a voicemail asking me to call back. I called back and they have said they are dealing and I would hear this morning. I have not heard anything at all despite chasing them up.

 

What should I do next?

 

Regards

 

Matt

[renegadeimp]

Have you informed the h&s executive? Which store was it?

You need to stay off the phone and demand everything in writing

[mjjc8486]

Hi,

 

I have not informed H&S yet - how do I do that?

 

It was Gloucester branch.

[renegadeimp]

Gloucester branch of what store? Ill dig the link for h&s in a bit for you. Its obvious the shop ga

Has broken the law though.

[postggj]

what injuries were sustained

[mjjc8486]

Gloucester Currys.

 

Injuries were cut and grazed left knee, brusied upper body, but nothing majorly serious thankfully.

[joka007]

what is your preferred outcome?

[mjjc8486]

Written apology to my son, safer display units, and an offer of goodwill to my son, not me, but my son.

 

If need be, I will take this to small claims court, I have had enough now of being ignored and accused of not keeping my son in control, when if they could be bothered to check the CCTV they would see that he was well in control.

[ericsbrother]

The store has a duty of care to it customers and staff to ensure their safety and health. now, in your opinion, how did the accident occur? you say a display unit fell on him, how tall was this unit, was it freestanding or part of a larger display, how much would it weigh, what shape, how much space around it, what was it made of, what kind of flooring was it on, would it be unstable if soemone pulled at the cables of the console? All these questions may seem a lot to answer but the store should have done a risk assessment and safety inspection that would consider all of these points. You need to write to the store manager and ask for answers to the points about the risk assessments and safety inspections and ask for copies of them as they have to have them as written documents. If the store manager will not co-operate then you will need to write to head office and ask the same things, pointing out the circumstances of the accident and tell them that the store had failed to log the accident and copy the email reply and tell them in no uncertain terms that he was not messing about but was invited to trial the devices by a menber of staff and that a response of this nature is reprehensible. Tell them what you want to do about the incident-do safety audit to see if this is likely to happen again, send copies of all risk assessments for that branch and demand apology to both yourself and your son for injury, injury to feelings regarding the crass comments made in email and lack of care by person in charge of handling the matter at the store.

I am a shareholder in DSG retail and hold qualifications in Occupational Safety and Health so I will take the matter up with the group chairman at the next AGM in sept if needs be. Please tell the store manager in your letter that this will be taken up in the way described if they cannot properly deal with it locally. Please come back to here when you have sent your letter, you can hand deliver if you live locally and also tell us what they say. Dont accept any more telephone calls, you want all replies in writing so there are no musundersatandings.

I would have thought that an inexpensive games console or games for an existing one would be a suitable compensation for the hurt your son suffered.

[mjjc8486]

Hi,

 

I received this earlier today. I have replied saying I do not accept the offer of £15 as I think this is an insult to my son.

 

--------------------------------------------------------------------------------

 

Hi Matt,

Thanks for getting in touch with us.

I'm sorry to hear of the issue that you and your son experienced within our Gloucester store. Please accept my apologies for the distress this has caused. I do hope that your son is OK. Also I do apologise for the content of the previous response, this is certainly not the level of service that we wish to be remembered for.

I have now spoken to the management team within the Gloucester store about this matter, and have received a response with the info that I requested. I understand that you were returning a vacuum cleaner to ourselves for a refund and were waiting to be served. At this time, your son had gone over to look at a stand with laptop on it when the incident occurred. From the information that I have, store colleagues came to your son's assistance as soon as they were aware of the incident, and checked that your son was OK. I am also aware that after this was confirmed you did leave the building, and it wasn't until you were outside that you realised that no details appear to have been logged in an incident book/log. This is when you went back to the store and these details were taken.

Our "Accident book" is not now a physical item. Any accidents that occur within our stores are logged immediately on an on-line system, that is automatically directed to the relevant department within our Head Office. The intellicase reference number for this incident is 18328.

With regards to the previous email that you received from us. I do apologise for the wording of this response, on a purely personal level, as a father myself i do understand your thoughts on the matter. I have fed this back to the colleague involved and they have took this on board.

After looking through the info that i have received, I feel that we did fulfil our responsibilities with regards to ensuring the well-being of your son and the reporting of the incident. As a gesture of goodwill I will be arranging for a £15.00 Payment Voucher to be sent out to your email address. There will be instruction on there as to how this can be redeemed.

Kind regards,

Ian

 

------------------------------------------------------------------------------------

 

I will send the letter as suggested in previous post - anything you think I should do?

 

[battlecry]

Hi

I work for currys only as a sale colleague, and I would firstly like to say how sorry I am to hear of your experience. I know words mean nothing to you, especially coming from someone working in the company. I to have kids and I would want to protect them with the best of my ability. As a company we take customer service and customer safety very seriously and we do lots of training to make sure the staff do adhere to it.

I do agree with ericsbrother keep it in writing and ask questions. Dixons group will have a legal department which you may need to go to. The store will have very little control on compensation, by all means try it at store level at first and see what happens, otherwise i would say this is quite a serious matter which you may need to take higher than store level.

[mjjc8486]

Hi,

 

Thanks for all your replies. The matter is already with head office. Unfortunately, they appear to have the blinkers on a little bit. They agree it should not have happened and was very unsafe etc, indeed, only a few days later a little boy was crushed to death by a falling display at a shop in the UK. So it does happen. But they think £15 is good enough. I dont. If need be I will take this further, but hopefully will get a better reply soon.

[Last Of The Time Lords]

From my studies for my law degree, I can tell you that not only is there potentially negligence/duty of care arguments here but you can also hit them with the Occupiers Liability Act 1957. Currys as the occupier would owe you and your son a duty of care as their visitor and even if your son had been messing around a little bit, I have copied the following from S.2(3) of the Act:

 

an occupier must be prepared for children to be less careful than adults

 

Also, in a situation where a child 'messes about', they would try and argue contributory negligence on the part of the parent/carer for not keeping the child under control but contributory negligence doesn't dismiss a claim; It can however reduce damages by up to 50%. Clearly, if a child was to go berserk for some reason not medically related and smash the place up and get injured in the process, then it would not be fair, just and reasonable to impose a duty of care in those circumstances as to allow the parents to sue.

[postggj]

Hope you do not mind me sticking my nose inn on this

 

My own opinion is that i think this Occupiers' Liability Act 1957 is not really relevant to the circumstances. The Occupiers Liability Act 1957 Act is covered under tort as a Civil offence

 

Occupiers who have taken reasonable care to see that visitors are reasonably safe undertaking the activity (for which they were invited) have satisfied their duty of care.

 

s2(2) Occupiers’ Liability Act 1957 states that an occupier of land owes the following duty of care to its visitors:

 

• To take such care as is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which the visitor is invited/permitted by the occupier to be there.
  

 

 

If the store can show it carries out regular risk assessments, and have records of those assessments, and that the store had carried out all that was reasonably expected of it to ensure the safety of customers, they will have satisfied its duty of care.

 

Without any evidence of safe systems of work/risk assessments, the Occupiers Liability Act 1957 will probably apply.

 

I myself would go down the

 

 

MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999

 

Before anybody states different, that is not just employees of a business, its anybody who visits that business, public, contractors, etc

 

 

Just my own opinion though

[Last Of The Time Lords]

I will examine case law in my book later but I still think it applies. I am sure I recall a case regarding injury in a building. A key element in tort is firstly proving a duty is owed which as you say is enforced by the Act. Then the duty must be breached which could even be a single lapse in usual procedures and then that the breach caused the loss.

 

I will post later tonight when back at home and I have read my book.

[postggj]

Bowen and others v The National Trust [2011]

[Last Of The Time Lords]

I can see why that case was decided as it was and each case is judged on its own merits of course. It's not that the Act isn't relevant here (quite often people sue under more than one head), its just that if you argued the Act in these circumstances, proving a duty of care is owed to visitors is straightforward. The real debate would be trying to prove that they had breached the duty owed under the Act.

 

You would be arguing that for the display to fall in such a way, they have not carried out checks to ensure that visitors are safe in utilising the display for browsing the products and they must go the extra mile for children.

 

The risk assessment part is valid as you say so the claimant if confronted with evidence that risk assessments had been done, would then look to the interim period. Has stock been moved since the last check? Has a heavier item been placed on it? If so then such changes would warrant a check there and then as opposed to being satisfied with the routine checks.

 

An interesting example of the difference between children and adults was Glasgow Corporation v Taylor 1922 1 AC 44. A child ate poisonous berries from a tree not fenced or warned. The premises were safe enough for adults as it would be argued that an adult would or should know of the potential dangers of random berries but the occupier had failed to consider children and their curiosity and was liable.

 

Very interesting and as we were taught, sue under more than one head and if one fails you have more ammunition stored.

[Last Of The Time Lords]

I myself would go down the

 

 

MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999

 

Before anybody states different, that is not just employees of a business, its anybody who visits that business, public, contractors, etc

 

 

Just my own opinion though

 

Found this within those regulations:

 

Exclusion of civil liability

 

22.—(1) Breach of a duty imposed by these Regulations shall not confer a right of action in any civil proceedings.

(2) Paragraph (1) shall not apply to any duty imposed by these Regulations on an employer—

(a)to the extent that it relates to risk referred to in regulation 16(1) to an employee; or

(b)which is contained in regulation 19.

[postggj]

16.—(1) Where—

(a)the persons working in an undertaking include women of child-bearing age

 

(1) Every employer shall ensure that young persons employed by him are protected at work from any risks to their health or safety which are a consequence of their lack of experience, or absence of awareness of existing or potential risks or the fact that young persons have not yet fully matured.

[postggj]

The Health and Safety at Work etc Act 1974 places a duty on employers to ensure, as far as is reasonably practicable, that in the course of their undertaking members of the public are not put at risk.

 

Furthermore, the Management of Health and Safety at Work Regulations 1999 require an employer to make a 'suitable and sufficient assessment of the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking'. So the duty to carry out risk assessments extends to visitors as well as employees.

 

A further statutory duty towards visitors arises under the Occupiers Liability Act 1957. An occupier of premises has a duty of care to any visitor using the premises for the purposes for which he is permitted or invited to be there.

 

In addition, the civil law allows injured persons to make a claim for damages where they can prove that they were-owed a duty of care and that there was a breach of that duty that lead to their injury. This is known as the common law duty of care and the duty arises if there is:

 

• Sufficient proximity between the operator and the person injured, and it was
  
• Reasonable to foresee that harm may result from the actions of the operator, and
  
• It is fair, just and reasonable to impose a duty of care on the operator
  

Therefore in the same way as ensuring safety of employees whilst at work requires a pro-active management approach, this extends to visitors too. Again, the starting point is to establish a safety management system based on acknowledged good practice.

Edited June 15, 2013 by postggj

[Last Of The Time Lords]

I totally agree about the common law approach but the exclusion of civil liability I quoted from the regulations you highlighted means in simple terms that a person who does not fall under 16(1) or 19 cannot sue under the regulations. Those 2 regulations are the only exemption to the exclusion clause and they strictly refer to employees so civil liability is excluded for members of the public etc.

[postggj]

An individual, say a woman who is pregnant, or a young person in employment is covered under the Equalities Act 2010,

 

The Management of Health and Safety at Work Regulation will apply with reference to adequate risk assessments only

 

That is referencing 16(1) and 19 which is covered under the Equalities Act 2010

[Last Of The Time Lords]

The regulations are interesting because let's say a member of the public who was not employed by the firm tried to bring an action solely under the regulations. They could as you say show that the firm must carry out risk assessments etc to all people not just employees. But because of the exclusion clause, only employees specifically under 16(1) or 19 can evade the exclusion and bring an action.

 

In the currys scenario these regulations could not be relied upon to bring an action. Therefore other Acts you highlighted or the common law approach can then be looked at.

[postggj]

In the currys scenario these regulations could not be relied upon to bring an action. Therefore other Acts you highlighted or the common law approach can then be looked at.

 

Totally agree

[ericsbrother]

HASAWA places a burden upon the employer to ensure the safety and health of the public and uses the term "as far as is reasonably practicable". As the employer has a duty to its employees and the public alike it needs to show what steps it takes to ensure the sais safety and health. the erupean 6 pack adds furtehr to this by requiring monitoring of safety and health and making risk assessments.

Now, I would be pressing for seeing those risk assessments and specifically whetehr they had considered the suitability of the display stands for the purpose they were being used. They should have a written record of this so request it from HO and tell them why you want it. They should take your complaint seriously then and if they dont, make a report to the HSE

common law tort would allow you to recover damages but it would be difficult to show a schedule of losses for a child. You could just stick to your costs for clearing up their mess, postage, petrol etc.