Moira Stewart v Matalan Retail Limited - Court of Session:
20 October 2006
Moira Stewart was working in a Matalan store in Edinburgh on 30
August 2002. She walked out through a staff room door on to the
shop floor area. A child emerged from beneath a display stand and
ran into her, causing her to fall and be injured. The accident was
not witnessed and the abbreviated form of written pleadings in the
Court of Session caused problems in relation to the leading of
evidence. The defenders objected to evidence being led in relation
to previous incidents, which was allowed to be heard, but under
reservation. Lord McEwan subsequently took a strict view of the
evidence. Written pleadings still have an important purpose, and so
he disallowed the evidence of prior incidents, which was vague and
unsatisfactory anyway.
The only evidence in relation to the incident came from Ms
Stewart. Her evidence was accepted as credible and reliable. She
described a child emerging from a concealed position within a sale
stand and ramming into her. The stands were positioned at least one
metre apart. Ms Stewart's case was based upon allegations in
relation to the positioning of the stand and also the failure to
have a window in the staff room door, which would have allowed Ms
Stewart to see the child before the incident. There were also cases
in terms of the Workplace (Health, Safety and Welfare) Regulations
1992. It was suggested that the stand was an 'obstruction' within a
traffic route and that there was not enough floor area for
safety.
The case based upon the absent window was pure speculation.
While it was established that the door from the staff room should
have had a transparent panel to comply with the Approved Code of
Practice, no causal connection was established between the absent
window and the accident circumstances. Lord McEwan took the view
that the problem for Ms Stewart was that the danger against which
any duty would arise was not the one which actually occurred. The
danger which actually occurred was a completely unpredictable event
involving a child 'exploding' out of a stand.
Lord McEwan was persuaded that the whole Matalan store was a
'room' within the meaning of the Regulations. However he decided
that the stand was in a proper position and at a safe distance from
the others around it and from the door. As a result the room had
sufficient unoccupied space for the safety of the staff. He decided
that the stand was not an 'obstruction' but was a retail necessity
which the defenders could not avoid putting on the floor. He held
that the stand might be an 'article' but that he was satisfied that
it was not reasonably practicable to place the stand elsewhere. The
child was neither an 'obstruction' nor an 'article'.
Ms Stewart was a fit and able bodied young woman and any duty
was owed to her in that capacity. She was a mother of children and
was taken to be familiar with their habits. She was an employee,
familiar with the Matalan store and the way goods were merchandised
and aware that mothers and young children were ever present in the
store. The stand was in its proper place. Matalan had not omitted
to do anything which they should have done. While it is a fact of
life that young children in stores are sometimes not properly
supervised, in this case there was no history of similar accidents.
It was not suggested that the child was a danger due to the state
of the premises. Separately, it was decided that in any case the
accident was not foreseeable.
It is important to remember that in Workplace Regulations cases
it is still possible to establish the reasonable practicability
defence, depending on the circumstances.