Avoiding Law Suits - Practical Steps for Licensees
Despite management’s best efforts accidents in licensed premises can and do happen. Bill McCann, a trainer for the Responsible Service of Alcohol Workshop, outlines steps the licensee can take to avoid being part of the re-emergent trend towards a compensation culture.
It’s just as possible to trip and fall in a pub as a grocery shop but it’s your responsibility to react responsibly when an accident does occur. If you don’t, the legal system is designed to hold you accountable - and a court will always be very conscious of a plaintiff's interests.
In difficult economic times with an increased tendency to make a Public Liability claim, preventative measures can save money for operations enjoying significant public footfall. In my capacity as a trainer for the Responsible Service of Alcohol Workshop, alcohol and the challenge of serving it responsibly is a recurring theme at the root cause of many claims. The two main areas of concern involve obligations under ‘duty of care’ with regard to Public Liability issues and the obligation to run an orderly house.
The 2008 Intoxicating Liquor Act makes it a criminal offence to serve someone who’s drunk, defined as drunk to such an extent that it would be reasonable to think they could endanger themselves or others. Recently the High Court ruled that a publican did not owe a duty of care to an elderly man who’d been served six pints of Guinness before he drove away and died in a road crash which also killed another woman. It was not established that he was a ‘drunken person’ and there was no legal basis for restraining him. Such an argument was deemed impractical and would place ‘an impossible burden’ on publicans. This judgement is significant for the licensed trade.
Under occupier’s liability, the duty owed by the occupier is to take ‘reasonable care’ to prevent injury. It would be unreasonable for a publican to ignore cracked floor-tiling where somebody could easily trip over it. A plaintiff was awarded damages of €51,500 against Sachs Hotel in Dublin following a fall. She’d been descending steps to the nightclub entrance when she caught her left foot in a broken tile, was thrown forward and fell down the steps. The judge stated that the hotel should have recognised that broken tiles were potential sources of danger.
Likewise, if a toilet floor becomes flooded with water and the publican takes no steps to mop it up, this would not constitute ‘reasonable care’.
But where a publican could not have been reasonably aware that the floor had become flooded (eg where flooding and accident occurred in rapid succession), he’d probably not be found guilty of negligence.
What practical steps can limit liability?
Conduct Liability Audits and retain documentation; light dimly-lit areas and eliminate labyrinthine corridors or stairways to help prevent slip-and-fall cases. Frequently upgrading something as basic as lighting will significantly limit claims.
It’s also crucial to speak to witnesses and obtain witness statements asap after the incident.
The value of contemporaneous notes greatly enhances evidence if taken in a certain way. For notes to be admissible evidence in criminal proceedings they must conform to Rules of Evidence and statutory codes of practice.
Regard and retain them as official documents. The dated notes – made in ink at the time or as soon after as is reasonably practical with no overwriting and with any amendments initialed on the original - should be factual; write nothing you’d be unhappy to read out in court. Do not overwrite or copy them from elsewhere.
What’s ‘reasonable care’?
No formal definition exists but it’s likely that a publican able to prove reasonable vigilance wouldn’t be penalised.
Develop, display and promote House Rules appropriate to your establishment; the process of developing these Rules is as important as the Rules themselves. Liaise with your insurance company over House Rules, incident report structure and timelines - it could be deemed that late notification of an incident could prejudice the defence and insurance cover may not apply.
Ensure your security providers have valid insurance particulars in writing as to indemnity you and have a Code of Conduct in place as to what’s appropriate in your circumstances.
Invest in written ‘Method Statements’ for mopping floors, transporting glasses around the premises, broken glass situations or an intervention policy for someone in violation of each House Rule etc.
Read the situation and react appropriately – don’t bring a claim on. Do everything as if you’ll have to defend your action in court. This comes with experience so have your most senior people deal with incidents; only have staff deal with situations to their level of accountability.
Invest in technology, if you think you have enough CCTV you probably don’t; are they focused and in the right locations? Some larger nightclubs invest in ‘headcams’ and dedicated control room communications staff to assist in early prevention and retrieval of CCTV footage.
Keep footage safe; make two copies - one for you and one for insurers/Gardai.
Enroll staff and management in Responsible Service of Alcohol and Drug Awareness on Your Licensed Premises workshops, both requirements for ‘Nightsafe’, the INIA initative.
Be disciplined in taking contemporaneous relevant, detailed notes and incident reports, carefully filed and archived.
The Civil Liability and Courts Act 2004 reduced the time limit for taking a personal injuries claim to two years.
Conduct a monthly internal liability audit of your premises documented with corrective action.
The more spot-checks or internal audits you carry out, the more likely you are to discover hidden risks and your premises will be less likely to cause somebody to slip, trip or otherwise injure themselves.
Review your Health & Safety Statement with a risk analysis involving an industry professional; involve staff in this by considering a ‘Near Miss’ Competition incentive to spot risks early and take preventative action.
Keep records. Document. Document. Document!
One of the most important duties of the manager responsible for refusing service, admittance or telling a customer to leave because they’re drunk, is to write down exactly what happened immediately after the incident.
Record the time, date and nature of the incident. Include the customer's name (if available) and where possible, reflect the fact that the refusal was carried out beyond the earshot of other customers. Record the reason for refusing service and the behaviour leading to the refusal. If other staff members witnessed the incident, append their statements to the manager's report which should be compiled immediately. With time, memories fade and you’ll suffer in court if your bar manager's evidence is unclear.
A written record allows your manager to refresh his memory as to what happened. The sooner the report is written, the more detail will be remembered, the better and more accurate the evidence will be.
It’s impossible to foresee the future so every single incident should be treated with equal seriousness: deal with every case as if you expect to end up in court.
Familiarise your staff with the Equal Status Act. Make them fully aware of what they may and may not do. Refer to this in your House Rules and Employee Handbook.
Invest in training – RSA workshops, Occupational First Aid and customer service training. Early intervention by actively listening, identifying key points, empathising and taking appropriate action can prevent many situations from developing into a claim.
For more information visit http://www.alcohol.ie.