Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH NUMBER93
PD2494/11	OPINION OF LORD DOHERTY in the cause SANDRA THOMPSON Pursuer; against PRIMARK STORES LIMITED Defenders: ________________

Pursuer: Christine; Thompsons

Defenders: Cowan, Solicitor Advocate; Simpson & Marwick WS

[Date of Issue]21 December 2012

Introduction

[1] In this personal injuries action the pursuer seeks damages from the defenders in respect of injuries she sustained on 3 August 2009 when she fell in their store in Irvine. The pursuer and her friend were in the shoe department. Shoes were displayed on racks. They were attached to the racks by shoe hangers which were inserted in the shoes. The department had a tiled floor. The pursuer was walking close to a rack when she slipped and fell. As she fell her right hand struck the rack or a shoe hanger on it, and she sustained injuries to her right ring finger.

[2] The case against the defenders is that the pursuer's foot came into contact with a plastic bag containing shoe hangers which she avers was lying on the floor; that that caused her to slip; and that the bag had been left there negligently by an employee of the defenders.

[3] The defenders deny liability. They deny that there was any such bag with shoe hangers on the floor. They maintain that there was not.

[4] In the event of liability being established parties are agreed that damages on a full liability basis would be £13,000 inclusive of interest to the date of the proof.

The evidence

[5] The pursuer was aged 51 at the date of the proof. She indicated that she accompanied her friend, Mrs Theresa Gilbert, to the defenders' store. It was Mrs Gilbert who was looking for shoes. The pursuer was carrying an Asda carrier bag in her left hand and a Sports Direct carrier bag in her right hand. She had a handbag over her shoulder. She was "strolling" in a passage between shoe racks. She was not looking at shoes at the time. She slipped and fell. As she fell she put her right hand out. She struck her finger on a rack. When she looked at it when she was on the ground it was obvious it was badly broken. She was in a state of shock. She did not see what it was she had slipped on, but her impression was that she had slipped on something which was on the floor. She recalled two ladies from the shop coming over to her and taking her to a room where they asked what had happened. She was "in a state" at the time. She had no recollection of what she had said. She thought Mrs Gilbert may have been the one who explained what had happened. An accident investigation report was completed by one of the ladies, but the pursuer neither read nor signed it. The next day Mrs Gilbert had telephoned her to see how she was. At that time Mrs Gilbert told her that there had been a plastic bag of shoe hangers on the floor. Mrs Gilbert said she believed that that was what the pursuer had slipped on. The pursuer instructed solicitors a few days after the accident. She had not seen the letter of 19 August 2009 which they had sent to the defenders (which stated "Our client slipped on plastic bags which were strewn on the floor").

[6] Mrs Gilbert was aged 62 at the date of the proof. She saw the pursuer slip. She had been not far behind her at the time. Immediately before she slipped the pursuer had had a carrier bag in each hand, and a handbag over her shoulder. As she fell the Asda carrier bag had left her hand and fallen to the floor. A bottle in it had smashed. Mrs Gilbert went to help the pursuer and saw that her finger was badly injured. She noticed there was a white plastic bag - smaller than a standard size carrier bag, more like a gift size bag - close to (a "couple of inches" in front of) the pursuer's feet. It looked like it was full of shoe hangers, but some of them had spilled out on to the floor. One or two shoe hangers were completely out of the bag and others looked ready to slide out. The bag was partly under a rack but the end of it extended out "about a couple of inches". The hooks were dark brown. The floor surface was grey tiles. A shop assistant and a first aider had come over to see the pursuer. One of them cleared up the bottle spillage. She and the pursuer were taken to a room. The pursuer had been "inconsolable". An accident report had been filled in. One of the staff had asked what had happened. She or the pursuer had said that the pursuer had slipped on something on the floor. The account of the accident noted in the report had been based on what one or other of them had said. Mrs Gilbert had not mentioned the bag with shoe hangers. The pursuer had been in pain and upset and Mrs Gilbert said she had not been thinking of anything but the pursuer at the time. Mrs Gilbert had signed the report on the pursuer's behalf, but she had not read it before she signed it. Mrs Gilbert's impression was that after the accident everyone's attention - including the two members of staff - had been very much focussed on the pursuer's condition. The next day she had phoned the pursuer to see how she was. At that stage she had told the pursuer that she thought she had slipped on the bag of shoe hangers, and that she had not seen anything else she could have slipped on. In cross-examination she confirmed that the defenders' lawyers had written asking to take a statement from her, that she had not responded to them, but that there had been no particular reason for that.

[7] Miss Leigh-Anne McMail was aged 23 at the date of the proof. She was a supervisor in the store at that the time of the accident. She was also a first aider. She had left the defenders for other employment in 2010. When she arrived at the accident scene the pursuer was on the floor surrounded by her bags. There was spilled alcohol on the floor. She was between the end of a rack and a bench where customers could try on shoes. Miss McMail checked first whether there was any hazard to her approach: she noted the spillage. She asked the pursuer how she was feeling - the pursuer said she felt quite light headed. Miss McMail said she looked at the floor round about the pursuer to see what was there. She recalled there were "some Asda bags, a sports direct bag, and the Asda bag which had alcohol in it." Miss McMail stated that another first aider, Janice Prince, had arrived, and that "she checked the area as well." Miss McMail had filled out the accident investigation report. The pursuer had given her the necessary information. She had written in box 6: "Customer fell on something on floor tripping grabbing hold of rail and finger got caught". She accepted that the scene when she arrived could be described as one of some commotion. She did not see a small bag on the floor. She accepted it was possible she could have missed such a bag, even if it had had shoe hangers spilling out of it, but she thought it unlikely that she had. She stated that shoe hangers were never kept in bags by staff. That was not the practice. They were kept in baskets.

[8] Miss Janice Prince was aged 44 at the date of the proof. Her present post with the defenders is Department Manager of the children's department. At the time of the accident she was a supervisor. She was also a first aider. She arrived at the scene following a tannoy call for a first aider to go to the shoe department. The pursuer was on the floor when she arrived and Miss McMail was talking to her. There were three bags on the floor, an Asda bag, a sports shop bag, and another bag with clothes in it. There was alcohol spillage on the floor. Miss Prince took clothes out of the Asda bag and put them in the sports shop bag to prevent them being wasted by coming into contact with spilled alcohol. She recalled the pursuer starting to panic when she saw the damage to her finger. Miss Prince lifted the three bags up off the floor and placed them on the bench. Once she had done that there was nothing else on the floor near the pursuer. There was not a small bag with shoe hangers spilling out of it. She was sure of that. If there had been she would have seen it when she tidied up the other bags. She stated that she had never seen shoe hangers in a plastic bag within the store. She had never seen such bags on the floor. It was not shop procedure to put shoe hangers in plastic bags. She accepted that she had never been employed in the shoe department: she said it was possible she had worked there for the odd shift. Janitors swept the floor of the shop frequently each day, and there were regular staff "pick ups" of things customers had left on the floor. After the accident she had filled in a Public Liability Accident Report to be passed to the store manager. On 27 August 2009 the manager appeared to have added his comments and signed and dated the form. Miss Prince's recollection was that she filled in her part of the form on the day of the accident. In answer to the question "How did the accident occur" she had written:

"Customer slipped in Footwear Department, causing her to fall. She caught her finger on fixture trying to break her fall resulting in a broken finger. When we attended there were 3 carrier bags lying on the floor all of which belonged to the customer & her friend. There was nothing else lying on the floor at this time."

She explained that to her "slipped" was just another word for falling over.

The parties' submissions

[9] Mr Christine submitted that it was clear on the evidence that the pursuer had slipped on something on the floor. He asked me to accept Mrs Gilbert's evidence that there had been a bag and shoe hangers on the floor. He acknowledged that Miss McMail and Miss Prince disagreed with Mrs Gilbert's account, but Miss McMail had accepted that it was possible that she had not noticed such a bag and hangers, and Miss Prince did not speak to searching the floor but rather to removing three bags and not seeing anything else on the floor. The focus of everyone's attention at the time, rightly, had been on the pursuer. That explained why Mrs Gilbert had not drawn the bag and shoe hangers to the attention of the defenders' staff at the time; and it might also be the explanation why those staff members do not appear to have noticed them. If it was accepted that the bag and hangers were indeed there it could reasonably be inferred that that was what the pursuer slipped on, and that they had been left on the floor by an employee of the defenders. No-one else would have had any reason to have a bag of shoe hangers.

[10] In reply, Mr Cowan moved for the defenders to be assoilzied. The pursuer had failed to prove the case pled. The case was perilled on Mrs Gilbert's evidence in relation to the bag and hangers being found to be credible and reliable. It was not credible and reliable. It was at odds with the evidence of Miss McMail and Miss Prince, both of whom should be found to be credible and reliable witnesses. Miss McMail had now left the defenders' employment, and to that extent could be treated as having a degree of independence from her former employers. The evidence of the practice in relation to the collection and storage of shoe hangers tended to suggest that Mrs Gilbert's account was not correct. Further, if, as Mrs Gilbert said, the bag and hangers were only a couple of inches in front of the pursuer's foot as she lay on the ground it was very strange that none of the other three witnesses (the pursuer, McMail or Prince) saw them, and stranger still that Mrs Gilbert did not mention them when the accident report was being completed. In any case, if Mrs Gilbert's evidence that the bag and hangers were there was accepted, it ought not to be inferred that that was what caused the pursuer to fall. Even if that were to be inferred, it would not be reasonable to draw the further inference that the bag and hangers had been left on the floor by an employee of the defenders. If, contrary to his submission, liability was established against the defenders, the pursuer should be found to have been at fault in failing to watch where she placed her feet. Damages awarded should be reduced by one-third to take account of the pursuer's contributory negligence.

Discussion

[11] My impression was that each of the witnesses who gave evidence was doing her best to tell the truth and to assist the court to the best of her recollection. I do not draw any adverse inference from Mrs Gilbert's lack of response to the letter from the defenders' solicitors.

[12] There is no doubt that the pursuer had a very unpleasant accident and that she suffered a serious and painful injury to her finger. It is, of course, natural to feel sympathy for her. However, I am not satisfied on the balance of probabilities that she slipped on a bag containing shoe hangers. I am not persuaded on the evidence that there was indeed such a bag on the floor near where she fell. I do not feel confident enough in Mrs Gilbert's evidence on the critical matters to place reliance on it. I found her to be rather a tentative witness. I do not think her evidence on the contentious issues can be reconciled with the evidence of Miss McMail and Miss Prince - whose evidence I accept. I do not doubt that by the time Mrs Gilbert telephoned the pursuer the day after the accident Mrs Gilbert had come to believe that the bag and hangers had been on the floor. However, the inescapable fact is that no-one else spoke to seeing such a bag or hangers there. I think it highly unlikely that if the bag and hangers had been there Miss McMail and Miss Prince would not have seen them; and that it is likely that the pursuer would have noticed them if (as Mrs Gilbert testified) they had been a couple of inches from her feet. I think it is significant that Mrs Gilbert made no mention of the bag and hangers to anyone on the day of the accident; and that on the same day Miss Prince recorded in the Public Liability Accident Report that when she attended there were three carrier bags belonging to the pursuer and Mrs Gilbert on the floor, and that "There was nothing else lying on the floor at this time". I find the evidence of Miss McMail and Miss Prince on the crucial matters to be more reliable than the evidence of Mrs Gilbert. It follows that the pursuer has failed to prove the case pled.

[13] Had I been satisfied that the bag and hangers were where Mrs Gilbert said they were, I would have been prepared to draw the inference that they were what caused her the pursuer to slip. On that hypothesis the items were close to her feet after the accident, and there was no evidence of any other possible hazard which may have caused her to fall. I would also have been prepared to infer that the bag containing shoe hangers had been left there by one of the defenders' employees: any other explanation would have appeared to me to be fanciful. I would not have made any deduction for contributory negligence. I am not persuaded that the pursuer was at fault in any way.

Decision

[14] I shall pronounce decree of absolvitor in favour of the defenders. I shall reserve all questions of expenses.