Unintended Consequences of COVID-19 Infections – Neglected Risk Assessments Leading to EL/PL Accident Claims

In March, The Daily Mirror reported that Sainsbury’s Supermarkets Ltd had been fined £1 million, after a disabled customer suffered ‘horrific’, ‘life-changing’ injuries on its premises in the midst of the first COVID-19 lockdown period.[i]

On 21 June 2020, Patricia Crampton was travelling on her mobility scooter to her local Newbury superstore.

At the time, supermarkets were responding to the Government’s coronavirus restrictions, which were starting to ease in terms of the shielding of vulnerable people.

In order to assist with orderly queuing, a system was established in the ground floor car park, outside the store’s entrance, which was used to shepherd shoppers through the front door and control how many people were allowed inside at any one time.

The single lane queue was not linear, but ‘snaked’, akin to those typically found at theme parks and airports.

Originally, it was constructed with bits of temporary metal and heavyweight plastic fencing, interspersed with high visibility, red and white plastic barrier tape.

However, as shoppers tried to wriggle underneath the tape to avoid going the long way round and as wind funnelled through the car park (its design created a wind tunnel), the ‘relatively fragile’ barrier tape would frequently break.

The store manager therefore decided to replace the barrier tape with black and white baler twine, which was readily available because Sainsbury’s used it to tie up excess cardboard packaging. In a section of the queuing system, the thin, but ‘virtually unbreakable’ twine was strung taut between two immovable columns, which were providing structural support to the mezzanine (upper) car parking deck situated directly above it.

Prior to 21 June 2020, Ms. Crampton had not ventured outside for a long time. Due to a lack of familiarity with the new queuing system, when making her way to the end of it, she drove straight between the two pillars, oblivious to the piece of baler twine connecting them.

She did so at speed, face first, splitting her mouth open and fracturing her teeth, jaw and palate. Surgeons rebuilt the parts of her facial structure that had been shattered with titanium plates and screws and, at one point during the emergency operation, she suffered heart failure. More than 18 months post-surgery, ongoing medical treatment is still required to aid her recovery.

Soon after the Sainsbury’s incident was reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013, a West Berkshire Council service commenced an investigation, which resulted in the company being prosecuted.

Reading Magistrates’ Court heard the Council’s argument that the baler twine amounted to an inadvertent ‘booby trap’, which could have strangled or even decapitated someone. This system was in place for seven weeks before steps were taken to remove it (immediately following the accident) and reinstate the use of plastic barrier tape.

Although Sainsbury’s challenged any suggestion that it had installed a potential decapitation hazard, on 2 March 2022, it pleaded guilty to exposing customers to danger and failing to conduct a suitable risk assessment on the use of baler twine, in breach of the Health and Safety at Work etc. Act 1974.

District Judge Samuel Goozee was sympathetic to the fact that the superstore had ‘rapidly responded’ to the Government’s public health guidance, whilst simultaneously providing an ‘essential service’ to the public, and observed the cruel irony of the manager opting, ‘for the best of reasons’, to use the twine as a means of alleviating ‘other health and safety issues that would have arisen from vandalism and weather damage’.

Nevertheless, the judge found the rationale behind the change in system to be ‘inadequate’, as a ‘sufficient’ risk assessment would have identified the relevant risks.

He went on to caution that care ought to be taken not to ‘sensationalise’ the degree of risk posed by the baler twine, opining that it would be a ‘step too far’, ‘conjecture’ even, to say there was a ‘real and significant risk of death’. It was not a step too far, though, to say that the baler twine exposed a ‘great number of members of the public’ ‘thousands’, the Council contended – to risk of injury.

Ultimately, Sainsbury’s received a £1 million fine and was ordered to pay £18,263.62 in costs, plus a statutory victim services surcharge of £190.

This is the first health and safety conviction to add to its previously spotless record, with a spokesperson for the supermarket chain having expressed thankfulness that the episode involving the named victim, in summer of 2020, was a ‘very unusual situation’.

To date, more than £31,000 has been paid out to Ms. Crampton to subsidise her medical and care bills and it is also understood that a civil case is pending.

One wonders whether a wider, unintended consequence of the novel coronavirus pandemic will be an upsurge in employers’ liability/product liability (EL/PL) claims similar to Ms. Crampton’s (though probably concerning less serious injuries).

Speaking with IOSH Magazine, Abi Stinson, the investigating Senior Environmental Health Officer at West Berkshire Council, reflected that the ‘lesson to take’ from this case is that:

‘… it is easy to be distracted and think you’re doing the right thing in one area, but actually find yourself creating another issue somewhere else’.[ii]

Having taken statements as part of the investigation, she remarked that the ‘major failing’, on the part of the supermarket, became ‘quite clear’:

‘The emphasis was so much on Covid being the major health and safety risk, that other risks ended up being neglected’.

For businesses and for health and safety professionals, all areas of potential hazard must be considered and risk assessed, but Sainsbury’s had taken its ‘eye off the ball’ in this instance and prioritised the risk of SARS-Cov-2 transmission.

Its staff had neither shown concern for how the queuing system should be erected, nor accounted for the mal-effects of the system on visually impaired individuals, members of the disabled community, or children.

Echoing the words of DJ Goozee, Councillor Hilary Cole, the West Berkshire Executive Member for Housing, Strategic Partnership and Transformation stressed that:

‘It is important that all employers have robust risk assessments and they are effectively implemented’.[iii]

Had the Newbury store undertaken an adequate risk assessment, it is plausible that adverse hypothetical outcomes would have been foreseen and that alternative COVID-19 protection measures would have been introduced.

 

[i] Levi Winchester, ‘Sainsbury's fined £1million after “booby trap” shattered disabled customer's jaw’ (3 March 2022 The Mirror) <https://www.mirror.co.uk/money/sainsburys-fined-1-million-after-26378533> accessed 27 April 2022.

[ii] Matt Lamy, ‘£1 MILLION FINE FOR SAINSBURY’S FOLLOWING COVID QUEUING ACCIDENT’ (8 April 2022 IOSH Magazine) <https://www.ioshmagazine.com/2022/04/04/ps1-million-fine-sainsburys-following-covid-queuing-accident> accessed 27 April 2022.

[iii] ‘Sainsbury’s fined £1m after customer suffers “horrific injuries”’ (23 March 2022 SHP Online) <https://www.shponline.co.uk/in-court/sainsburys-fined-1m-after-customer-suffers-horrific-injuries/> accessed 27 April 2022.