Frozen foods supermarket loses appeal against £9,500 damages award after customer tripped on large raised mat

About this case:

• Citation:
  [2024] SAC (Civ) 50
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Pursuer and respondent Tracey Thomson had offered to prove before the sheriff that Iceland Foods Ltd was in breach of the Occupiers’ Liability (Scotland) Act 1960 and the common law. It was nonetheless accepted that her action could only succeed if the maxim applied, with the sheriff finding that the maxim applied and that Iceland had not offered an explanation to displace the inference of negligence.

The appeal was heard by Sheriff Principal Sean Murphy and Appeal Sheriffs Robert Fife and Patrick Mann. The appellant was represented by Milligan KC and Hennessey, solicitor advocate, and the respondent by A Smith KC and Black, solicitor.

Reasonably foreseeable hazard

On 20 September 2021, the respondent was shopping at the Iceland store in Alexandria. After paying for her shopping, she tripped on a large mat adjacent to the store exit that was raised above the level of the shop floor. She presented photographs taken by her partner of the part of the mat she had tripped on, but stated she did not know how high the edge of the mat was raised above the floor level.

Iceland chose not to lead any evidence after Ms Thomson had led her evidence as it did not consider that sufficient evidence had been led to engage res ipsa loquitur. It was held by the sheriff that, while Ms Thomson’s evidence concerning the mechanism of her accident was at times difficult to follow, she could not reasonably be expected to know the exact cause of her accident. There was evidence that Iceland was in exclusive control of the store, and no explanation was provided by Iceland consistent with the absence of fault on their behalf.

Senior counsel for the appellant submitted that the findings in fact were sparse and did not create an inference of negligence. Ms Thomson had failed to establish that the accident would not have occurred if the appellant had taken proper care, as she could have tripped without any fault on the part of Iceland. There had to be findings in fact as to the height of the raised edge of the mat and whether or not it amounted to a reasonably foreseeable hazard.

For the respondent it was submitted that Ms Thomson had a reasonable entitlement to expect the floor would not have a trip hazard. The purpose of the maxim was to avoid a denial of justice to those whose rights depend on facts incapable of proof by them but were within the knowledge of their opponent. It was open to Iceland to demonstrate that the raised edge of the mat was de minimis or not present for long enough to have been detected with reasonable care, but they failed to do so.

Risk of injury

Delivering the opinion of the court, Sheriff Principal began: “This appeal raises a narrow but important point on the application of the maxim res ipsa loquitur. It is a presumption of fact depending on the facts and circumstances of each case. As stated by Professor E Reid in The Law of Delict in Scotland (2022), for res ipsa loquitur to apply, the pursuer is required to show that: (i) the thing which caused damage was under the defender’s management; and (ii) the accident was of a type that does not ordinarily occur if proper care is taken. The inference of negligence is then accepted only if the defender can offer no explanation consistent with absence of fault on the defender’s part.”

Noting the key findings in fact, he continued: “A raised edge of the mat close to the store entrance would give rise to the risk of injury to customers depending on the circumstances. The defect in the mat caused the accident. The sheriff considered that the CCTV evidence supported the pursuer’s account of the manner that she tripped on the mat and clearly showed her forward momentum being arrested as she reached the edge of the mat”

In respect of the second part of the test, Sheriff Principal Murphy said: “The sheriff was entitled to reach the conclusion on the evidence he accepted that the accident was of a type that does not ordinarily occur if proper care is taken. Accordingly, the two elements for res ipsa loquitur to apply were satisfied.”

He concluded: “Iceland averred on record that they operated proactive and reactive systems of maintenance and inspection. Iceland had the opportunity to lead evidence to prove the defence that they complied with any duty of care incumbent upon them, but decided not to do so. Iceland did not offer any explanation to rebut the inference of negligence. In the particular circumstances of this case, the sheriff has not erred in finding that res ipsa loquitur applied and that a breach of duty by Iceland had been established.”

The court therefore refused the appeal and adhered to the sheriff’s interlocutor of June 2024.