Accidents will happen, but hosts can reduce liability

Last week's comment by Stephen Oliver in My Shout about people blaming someone else for their own stupid actions rang many bells with me. It is something that the licensed trade itself has had to put up with for many years.

Not all accidents in pubs are caused by drink — far from it. More likely is a claim from a disgruntled customer for faulty equipment, a slippery floor or a wonky bench, which they have fallen off.

I remember a case a few years back of an over-zealous father who decided to have a go on the children's bouncy castle — with somewhat predictable results. He did his back in and wanted damages from the licensee.

All of us owe a duty of care to people who come on to our premises. That duty, generally, means we must ensure that people will be reasonably safe in using the property or its facilities.

Eventually, it is up to the courts to decide what is "reasonable" in any given set of circumstances, which means that the lawyers have a field day.

In reality, very few cases concerning injury ever get to court. Most of them are settled through the medium of insurers. However, this is where the first difficulty can arise: when you install new equipment or facilities such as a playground, will your existing insurance policy cover you for any claim that might arise?

This is especially true for personal injury, because a simple disclaimer notice is insufficient to prevent claims being made. Many pubs still have old-style notices that attempt to avoid liability for everything, placing the risk solely on the user. However, such notices were outlawed several years ago.

It is now not possible to seek to avoid liability for death or personal injury due to negligence by such a notice. The courts will treat such an exclusion as void. You can, however, seek to avoid other types of loss or damage by a disclaimer, which is clearly brought to the attention of the customer at the time.

For example, a sign by a row of pegs will, in most circumstances, be sufficient to avoid a claim against the theft of a coat that has not been "bailed" with the proprietor (the situation is different where a coat is handed in at a cloakroom and a ticket is issued).

But personal injury does lead to problems. Where the injured person consults a lawyer, or one of these new personal injury helplines, they will undoubtedly seek to show that the injury occurred due to the negligence of the proprietor, and will probably write to that effect in the hope that the licensee or his insurers will accept their contention.

Insurers​

But apart from the legal niceties, a claim of this kind does create both worry and expense, even where no strict liability can be shown against the licence-holder. There have been many examples where licensees have had to pay out hundreds of pounds to resist a claim for damages, even when they have their own insurers and the claim is manifestly unreasonable.

So the first step for any reader is to consult their insurers as to the extent of their cover for playground injuries and the procedures to be adopted in the case of a claim.

It would also be sensible to check the equipment and the surrounding area to ensure nothing has escaped your attention that might be considered dangerous.

Remember that your duty is to take reasonable care — not to be perfect! Accidents can happen even in the most carefully-controlled situations. Your job is to make sure that you are not at fault.