Pharmacy owners do not just have duties as employers. As occupiers of the premises they also have responsibilities to anybody who visits the pharmacy (occupiers’ liability). But how do pharmacists successfully navigate these in times of a pandemic?
Slips and trips, of course, happen from time to time. Back in 2016, Patricia Walsh made the headlines when she was awarded over one million euros when she slipped on a grape in Tesco’s in Ireland. The same year, the London Borough of Sutton was not liable when a Mr Edwards fell off an ornamental bridge with allegedly dangerously low parapets into the water below.
The headlines can make occupiers’ liability seem like a lottery, but there is usually detailed analysis supporting the courts’ findings, which usually gives interesting points to learn from. How worried should pharmacy contractors be when this analysis is applied to the Covid world?
What is occupiers’ liability?
Occupiers’ liability is a term which generally refers to the duties owed by landowners to persons who come onto their land/property. An “occupier” is not limited to the owner of the premises and can be any person who is responsible for and has control over the premises, the condition of the premises, and the persons permitted to enter the premises.
The Occupiers’ Liability Act 1957 (‘1957 Act’) imposes a duty of care upon landowners to ensure that their property is reasonably safe, for lawfully permitted visitors. The 1957 Act applies not only to land and buildings located on the property, but also to fixed and movable structures such as scaffolding and ladders.
Chester Le Street District Council discovered that a large inflatable sculpture was a structure they were responsible for when high winds removed it from its moorings.
A landowner’s relevant common duty of care under section 2(2) of the 1957 Act states that:
‘The common duty of care is to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’
The common duty of care varies according to the circumstances and the type of land/property (for example a factory producing potentially harmful chemicals would have a higher standard of care than that of a typical home).
Occupiers must expect that children will not be as careful as adults, but on the other end of the spectrum, they can expect that a specialist tradesperson or professional attending the premises to carry out a particular task will know and guard against any inherent risks that arise because of that type of work. For example, where a pharmacy employs a builder to undertake work on the premises, the builder would be aware that his own work could be hazardous and so would be expected by the court to guard against risks that come with building work.
A property owner does not have a duty of care to trespassers, unless there are dangers on the property which the owner is aware of (for example: barbed wire fencing, a deep body of water, electric fencing, etc.).
If dangers are present at a property then the owner may, in appropriate circumstances, discharge any potential liability to visitors and trespassers by taking such steps as are reasonable in the specific circumstances (for example, signposting), to provide awareness of such danger and discouragement in respect of the risk to visitors and trespassers.
So, if a visitor contracts Covid-19 when visiting my pharmacy, am I liable?
The virus is potentially deadly, but cannot be seen. Its invisibility presents difficulties for pharmacies trying to prevent the spread of the virus, but it also presents difficulties for claimants. It is very different from tangible slip and trip injuries where it can be clearly seen where the accident occurred. A claimant would have to start by showing that they did contract Covid-19 at the pharmacy.
However, the mere fact that a customer contracts the virus after going to a pharmacy will not necessarily mean that the pharmacy has failed to meet its standard of care. There have been no cases determining the liability of businesses, but it is likely courts will consider whether the pharmacy has taken steps to protect the safety of customers from the potential danger at the pharmacy and can evidence the steps taken.
Reasonable steps would include following government advice and guidance. It would also involve the consideration of the Covid-19 SOP. The SOP is clear about what pharmacies need to do in terms of protecting the public and the measures include well-publicised steps; social distancing, use of masks and barriers, and cleaning.
What about GPhC inspections?
The steps that pharmacies are taking to protect the public are being scrutinised even in the absence of claims brought in the courts. In recent reports, it can be seen that GPhC inspectors are looking at measures taken by pharmacies. Although the GPhC stopped routine inspections of pharmacies during the first part of the pandemic, the inspectors are now going back into pharmacies.
A review of recent inspection reports shows that inspectors are paying particular attention to infection control measures. Their checks on governance will, for example, include looking at risk assessments and whether the routine wearing of masks and social distancing is seen at the inspection.
When they look at staffing, reports show that they may check that staff are informed of latest guidance and the Covid-19 SOP. In relation to premises, the availability and use of hand sanitiser, screens, floor marking, and availability of contactless payments are examined. Checks on services look at the delivery of services and the protocols for making these possible.
In summary, it could be said that these are times when a GPhC inspection could be welcomed as it is an opportunity for the pharmacy to get an independently verified, published account of its compliance with guidance on record. This means that it is crucially important to make sure reasonable steps have been taken in the first place to ensure public protection.
Of the inspections that have taken place since the beginning of August, all except one have been rated as “standards met”, so it looks as though pharmacists are taking all the measures they need to protect the public, and themselves.