No evidence to show ‘dalek’ was dangerous - judge dismisses supermarket employee’s personal injury claim



Scottish Legal News

A supermarket worker who fell off a “dalek” as she was hanging clothing on a rack has had an action for £14,000 damages dismissed by a judge in the Court of Session.

Elizabeth Gilchrist, a shop assistant at Asda, claimed that her employers breached their statutory duty of care to by failing to provide her with safe working equipment, but Lady Stacey ruled that there was “no evidence” to support her claim that the stool was “unsafe”.

The court heard that that at around 11am on 3 December 2013 the pursuer was working at her job as an assistant in the clothes department of the defenders’ shop in Coatbridge.

She was asked to take packets of clothing from the store room and hang them up on racks in the public part of the shop - a task she had performed “many times”.

The pursuer, who was five-feet tall, was provided with a dalek which was 18 inches in height to allow her to hang clothes on hooks which were approximately seven-feet off the floor.

She said she had to raise both arms to hang clothing, which she described as “an awkward manoeuvre”, and stated that while she was standing on the footstool she “lost her balance and fell backwards”.

She raised an action for damages following personal injury, arguing that the defenders knew or ought to have known that manual handling at height will require movement which will “increase the risk of injury”, and that they knew or ought to have known that requiring employees to stand on a dalek platform to carry out the manual handling task of hanging clothes presented “a risk of falling”.

It was further stated that it was “reasonably foreseeable” that employees such as the pursuer could become unbalanced and fall when required to undertake a manual handling task and move around while standing on top of the platform.

Counsel for the pursuer also submitted that were liable at common law and that they were under a duty to provide “airport-style steps”.

However, the supermarket said there was no liability on their part.

Counsel for the defenders said the pursuer was “stepping off the footstool when she tripped and fell” catching her ankle - she had finished the task of hanging up the clothes, started to step down from the dalek and then fell.

Separately, even if she did fall while actively engaged in the hanging of items of clothing, it was argued that the accident was “not caused by the fault of the defenders or the breach of any statutory duty”.

The defenders had carried out a risk assessment “sufficient” for the straightforward task of using a footstool.

The dalek footstool was the “most suitable” work equipment for the task - it had been in “common usage for many years” and there was “no evidence that it was inherently unsafe” or that it had caused accidents.

The accident happened because the pursuer failed to take care when stepping down from the footstool, it was submitted.

The judge granted decree of absolvitor after observing that the pursuer did not give evidence to support her case on record.

In a written opinion, Lady Stacey said: “The fall did not happen because her hands were full with packets of clothing, or because she had to reach above her head on a stool which was of a design which made such a movement dangerous. All that has been proved is that the pursuer fell when coming down from the dalek.

“Her case was that the dalek was unsafe for the particular task that the pursuer had to perform. There is no evidence to support that contention, in that the pursuer did not fall because she had to carry out any manual handling task.

“Thus the pursuer did not prove the case on record. She had no pleadings for any case that the dalek was in itself unsafe, and she made no submission to that effect.

“This is a case where an accident happened which was not caused by breach of any duty by the employer. The facts which I find proved do not show that the dalek footstool was not suitable for standing on.

“All that could be said was that she had to stand on a stool to do her work. It was accepted that the stool was suitable for the task for which it is often used in a library.

“That being so, it has not been shown that the accident happened as a result of any use of the stool in breach of the employer’s duties.”