The most common cause of injury to customers in the hospitality sector is slips trips and falls.
As the owner or manager of premises and an employer you owe a duty of care to protect the health and safety of your staff and customers. If you employ more than 5 people you will need to have a written health and safety policy and to perform a formal assessment of the risks to your staff and customers. If you negligently breach this duty of care an injured party can claim damages. In addition you have obligations under statute, for example, the Health and Safety at Work Act 1974 and the Occupier’s Liability Acts, a breach of which can lead to you being prosecuted in the magistrates or Crown Court where you may be fined and/or sentenced to a period in prison.
It is not only an operating company who can be liable for a health and safety offence. If an offence is committed with the consent of or due to neglect by any director or other officer of the company then that person (as well as the organisation) can be prosecuted.
Directors should beware that they cannot avoid a charge of neglect by arranging their organisation’s business so as to leave them ignorant of circumstances which would trigger their obligation to address health and safety breaches.
Risk assessment is key
It is key to a successful defence to any negligence action that you can show that you took all reasonable steps to avoid accident or injury and obviously a comprehensive risk assessment is a crucial part of this. An assessment should be carried out but also the findings must be acted upon and the assessment must be regularly reviewed.
Slips, trips and falls are very common in the hospitality industry. Your risk assessment should identify ways of avoiding hazards e.g. liquid spillages from fridges and melting ice, leaving cellar hatches open. It should also identify how any such hazards should be dealt with e.g. immediate treatment of spills. It is crucial that staff are trained in how to avoid injury to both themselves and customers.
You may have a generic risk assessment across your estate but it is important to tailor this to make it specific to each individual site where hazards will be different due to the structure of the building e.g. floor levels, location of cellars etc.
There have been two specific and serious falls reported in public houses this year.
Is you cellar door locked?
Earlier this year a man who mistook a cellar door for the toilet door plunged to his death in a public house. The cellar door at the Zest Bar in Scarborough was not locked or signposted. Matters were made worse because other people had been injured falling down the stairs previously and the man’s body was not discovered for several days because the pub had been closed for a training course. The landlord was sentenced to 2 years in prison for manslaughter. This is a reminder that health and safety responsibilities must be taken seriously. Risks must be assessed and regularly reviewed.
Liability for daredevils?
Under the 1957 Occupiers Liability Act you have a duty to lawful visitors to see that they are reasonably safe in using your premises for the purposes for which they are permitted to be there.
Earlier this year Mrs Geary found a long sweeping banister at the Wetherspoons pub in Newcastle too tempting to resist. She climbed on to it intending to slide down to the bottom. She admitted in court that she was not drunk, she was aware that she might be injured but had chosen to take the risk. She fell on to a marble floor and ended up a tetraplegic.
The court decided that Ms Geary was aware of the danger and had voluntarily accepted the risk. Wetherspoons were not negligent and therefore her claim against them failed. Wetherspoons had wanted to install a higher banister when renovating the premises in question but had been prevented from doing so because it was a listed building.
Tip – Insurance
We all know that accidents happen even when all necessary precautions have been taken to avoid them and sometimes insurance claims have to be made to cover these. You must be careful that your insurer is not able to avoid liability when investigating a claim because it can show that your health and safety measures were not up to scratch. For example, if you employ more than 5 people you have a legal duty to have a written health and safety policy and to carry out a risk assessment. Failure to carry out this basic level of preparation may lead your insurer to void your insurance. Conversely if you have invested a lot of time and effort in health and safety you may be able to negotiate a reduction in your insurance premium. In all cases check that you are happy with any exclusions put on the policy.
The HSE has published an example risk assessment for a pub – http://www.hse.gov.uk/risk/casestudies/pub.htm
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.