'Dangerous Occurence'

[ayub57]

Hi guys

I was wondering if I could pick your brains for a moment, I'll try and make it painless as I can lol.

Anyhow, I have a serious Health & Safety question. Recently, I went to a major supermarket and there were several trolleys were iresponsibly left at the top of the car park which is located on a hill/slope. One of these trolleys broke free and hurtled down the slope and smashed into my car. This raised serious concerns for me, as this type of incident could have been really serious. I mean, it could have quite easily smashed into my wife who is currently 8 months pregnant, or it any other member of the public. Maybe this could be classed as a 'dangerous occurence?'

I also feel that this incident could fall under the following legislation (I might be completely wrong):
The Health & Safety at Work Act 1974 Section 2
The Health & Safety at Work Act 1974 Section 3
The Health & Safety at Work Act 1974 Section 4
The Health & Safety at Work Act 1974 Section 7
The Management of Health & Safety at Work Regulations 1999
The Provision & Use of Health & Safety Equipment Regulations 1998
The workplace Regulations 1992

I complained to the major supermarket and advised them of what had happened, they messed me about so much it's unbelievable!

After many weeks of being messed about by the major supermarket customer service, I wrote to the CEO and had the follwoing response:

Dear Mr Ayub

Thank you for your email and attachment addressed to our Chief Executive. As he is currently away from the office, I am responding on his behalf.

I was sorry to learn of your complaint and I apologise that you have been given cause for concern. I understand that this accident was caused by a stray trolley which someone had abandoned in our store's car park.

Customers who use our trolleys have a duty of care to return them to the appropriate trolley bays where they will be collected by staff. Staff will also collect stray trolleys as often as possible throughout the day, however you will understand that they can't be present on every occasion that a trolley is abandoned.

Whilst I can fully appreciate the annoyance and frustration that this accident has happened, I respectfully advise that we are unable to accept liability for theft or any damage caused, as customers choose to bring their vehicles on to our property at their own risk. There is a disclaimer displayed to advise everyone of this.

I can only apologise that you have not received the best of service since you initially made us aware of this matter. Please be assured that this will be fully addressed and further training carried out with the people involved.

I also appreciate that you may be disappointed with my reply. However, I would like to assure you that our Chief Executive will write to you personally on his return.

Thank you for bringing this matter to his attention.




Can they really fob this issue off like this? Also, the signage that they are reffering to, was only put up after I complained. But can they really drop their responsibilties by putting up a sign?
I mean, this issue of dangerous trollys could be resolved by simple steps if they really want to.
Tell me what you guys think. Should I drop this, or is there any use in little old me trying to take on a big supermarket giant?

[Chazzman]

Hmmm....

Difficult to say!

Another of the big companies the one started in yorkshire and now owned by the Americans has had several successful prosecutions.

That the end result wasn't a fatality (thank godness), they will not take this eriously and continually fob you off.

The fact they have not gone the route of SFARP, locking castor/wheel on trolley or a brake, won't wash.

The collection of trolleys is for them to do!

Why they haven't gone down the coin route at your store is strange.

Have you spoken to your LA?

I know someone at Stockport, what does Levenshulme come under?

I remember as a young padawan trolley pusher, I almost wrote off Julie Goodyear's porsche 911.

The fact I was ordered to push 15 trolley's a time uphill, didn't help!

Nice to see things don't change.

Chazz

[ayub57]

Hi Chazzman

Thanks for the reply

When I reported the incident I did mention this to the manager, he said that they did have a 'coin operated trolley system', but they then got rid of it for some unknown reason.

As for dangerous occurence, I was thinking along the lines that this incident may be a dangerous occurence, as if the trolley did hit a pregnant woman for example, it could prove fatal for the unborn child.

What's making things a little tricky is that I'm not from Manchester, I was just visiting. I suppose I still can contact the LA (I'm sure Levenshulme comes under Stockport).

Anyhow, I have sent an email to the HSE's 'ask an expert', so lets see what they come back with.

ps. 15 trolleys up a hill!! Man, these companies really do take the michael

[Alexis]

I for one will be very interested in the reply from the HSE. If they had no coin operated system in place, then my way of thinking would be that they must ensure their property ('cause that's what it is) is safe for the public and therefore are liable.

However, as for the car park, I know of another big company from America who have no say in what happens in their car parks as they belong to a "car park company".

If this car park has outside management, then unfortunately, (and much to my disgust) at the end of the day, you most probably won't win ayub. Making a big noise about it though is right and perhaps may save a child, a mother-to-be or an old and infirm person being seriously injured.

[ayub57]

Thank you for your support Alexis.
'
As soon as I get a response from the HSE I'll let you guys know what they say. I mean, this must fall under 'negligence', but I'll just have to wait and see.

It is really worrying to still see corporations/companies who feel that if they put up a sign alone, that they will meet the requirements under Health & Safety law.

[otto]

In short, Occupiers Liabilty Act 1984 and Sections 3 and 4 HASAW - this covers injury to the person and not damage to property.

In long.....
This is an interesting legal question. There are three legal frameworks covering this question area. The first issue is the Occupiers Liability Act 1957/1984. An occupier, the employer, is liable generally for all torts, negligence, nuisance, Rylands and Fletcher issues and so on ad so forth. In an instance where a third party enters the land as a lawful visitor, any notices which exclude liability would largely be of no effect.

The second area is HSWA; the employer has a duty to make the site safe. This is determinable by the court in terms of the circumstances arising. If a car is damaged by the land, i.e. dripping cement and such like the land owner is liable whatever the signs say or do not say, it is not possible to exclude negligence on an occupier’s liability issue. In strict HSWA legislation the employee’s status is largely irrelevant as the damage is caused by the land and is therefore an OLA matter not a HSWA matter.

If the site is not adequately maintained so as to be a safe working environment, liability creeps in but the burden of proof here is higher than OLA so the best route is still through the OLA. Now the final area is contract law. It is never possible to escape liability for death or personal injury as this is provided for under s6 of the Unfair Contract Terms Act, AND THIS HAS BEEN ENLARGED TO ENCOMPASS NEGLIENCE so whereas previously the courts would not accept an s6 argument they now will look at it closely.

As to employee spaces, they are very straightforward indeed, they are a workplace and so both OLA and the HSWA apply in full force. In addition the Employment Rights Act and other employment law applies too, i.e. variation of terms of contract and etc.

So to summarise, you will always have an Occupiers Liability Act basis, then you can reinforce this with either a HSWA head of action or both plus the s6 head which provides for wider protection.

Where one employee damages another vehicle the driver of the offending vehicle is liable and can then provide details of his insurers to the injured party, even where they are both employees.

Additionally, the insurers of the land will not defend a claim which is issued for damage less than one and a half thousand pounds as the matter will be listed to the small claims track in the County Court and the legal costs of defending a claim will far exceed the fixed costs they could recover if they won. I have this on good authority from a friendly lawyer.....

So just to clarify again, signs have little meaning or use and have no effect on liability. Shopping centres and schools, swimming baths, it doesn't matter, if there is damage caused by the land, no amount of signs will have any effect. If the damage is caused by a land users negligence they remain liable.

On the employers liability issues, if the land has suffered regular thefts or damage to vehicles, the empoyer has an enduring duty to keep the matter under review and provide adequate protection, in failing to do this they become increasingly exposed to a third party claim. Signs - yes you guessed it, have little meaning. Similarly if a doctors parking spaces at the surgery for vsitors say, keep getting vandalised, the occupiers risk is heightened.

This is just my view - if you are going to take this further seek advive from a specialist lawyer
Otto

[ayub57]

Thanks Otto, you've opened my eyes and made me look at this sitaution in a whole new light, cool!

I have had a response from the CEO, again he just repeated what was said in the earlier response: that they are sorry and that they cannot be held responsible for incidents in the car park as it is the duty of all customers to return their trolleys. However, the was no mention of the safety concerns that I raised.

I've contacted the LA and informed them that I believe that there is still a safety risk and requested that they take a look into it. So hopefully will hear from them soon and that the problem is made safe for the people too.

As for the damage to my car, I am probably going to drop it as I can't afford a lawyer, nor do I fancy my chances at taking on a major supermarket chain.

The most important matter is that people will be safe and risk has been elliminated/reduced.

[HelenPJ]

Otto, as ever Many thanks for this, useful (and interesting) to know

Ayub

The most important matter is that people will be safe and risk has been elliminated/reduced.

Also Cool Good Luck

[ayub57]

Hi guys

Just to update you with what is going on. I had a call from the LA last week, to be honest they did not seem that bothered. They just stated that they are not going to take any enforcement action, rather, they will contact the company in question and see how they respond. I said that my main concern that the safety risk is elliminated/reduced, not enforcement action. I haven't heard back yet, so let's see what they say.
The HSE's 'ask an expert' response to this matter was:
Dear Sir

Thank you for your enquiry regarding your concerns.

Under health and safety legislation, disclaimers similar to this will not stand up in the court of law. Further to this the HSE cannot comment on liability issues and you may need to seek legal advice. Alternatively you may wish to seek advice from your Citizens Advice Bureau. The web address for details of CAB offices based in the UK are as follows:

http://www.citizensadvice.org.uk" onclick="window.open(this.href);return false;

There will be a general duty of care under Section 3 of the Health and Safety at Work Act 1974 placed on the operator/ owner of the car park. Section 3 only sets down a general goal - it is not specific. Section 3 states:-

(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2) It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

(3) In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

Reference: Health and safety at Work etc Act 1974 ISBN 0105437743 £12.35

A copy of the Health and Safety at Work etc Act 1974 (ISBN 0105437743, £12.35) is available from Stationery Office (HMSO):

Stationery Office Ltd

PO Box 29

Norwich

NR3 1JN

Telephone: 0870 242 2345

Internet: http://www.tsoshop.co.uk" onclick="window.open(this.href);return false;

If you wish to make a complaint, you will need to contact the relevant enforcing authority for health and safety. You may remain anonymous if you are concerned about giving your name.

The Environmental Health Department of the Local Authority enforce health and safety legislation in premises such as a supermarket.

The telephone number for the Environmental Health Department of the Local Authority should be available from your local telephone directory.

Alternatively, the details of all local authorities can be found via the A-Z of local authorities facility of the following website: http://www.direct.gov.uk" onclick="window.open(this.href);return false;

I hope this helps, but if you require further assistance, please do not hesitate to contact this address again or telephone HSE Infoline on 08453 450055.

Yours sincerely

HSE Infoline