Store not liable for injury caused by child
24 Oct 06
Employee's collision with unsupervised child not foreseeable, says court
An employee in a clothing store who was injured when colliding with a child running unsupervised in the store, has failed in her claim for damages against her employers.
Lord McEwan in the Court of Session found for store owners Matalan, sued by store assistant Moira Stewart. Ms Stewart suffered a dislocated elbow when a child ran into her from under a clothing stand in their Edinburgh store.
The claim was brought under various health and safety regulations and also at common law. It was argued for Ms Stewart that the stand was too close to a door through which she had just come, and that if there has been a window in the door she would have been able to see the child.
Dealing with the statutory case, Lord McEwan found that the stand was in a proper position and a safe distance from the others around it and the door. It was not an obstruction but a necessary part of the retail business. "Although it may have created the condition to cause the accident, the way it occurred was simply not foreseeable", said the judge.
"The duty [not to cause obstruction] is not absolute and here the defenders have satisfied me that it was not reasonably practicable to place the stand other than where it was." He also held it not proved that Ms Stewart would have seen the child if looking through a window in the door.
Common law and Occupiers' Liability Act cases failed because there was no history of any like accidents, and "It was not, nor could it be, suggested that the presence of this child was a danger due to the state of the premises." In any event, Lord McEwan continued, "If I am wrong about that, I am of the view that this accident was not foreseeable."
Lord McEwan's opinion can be read at http://www.scotcourts.gov.uk/opinions/2006CSOH167.html .