Fire - July 2007

Workplace [Health, Safety and Welfare] Regulations 1992
Ellis v Bristol City Council [2007] Court of Appeal: 5 July 2007

This recent Court of Appeal decision imposes a greater demand on employers by extending the ambit of strict liability under the Workplace [Health, Safety and Welfare] Regulations 1992.

Facts
The Claimant was employed as a care assistant at a home for the elderly run by the Defendant.  The Claimant slipped in a pool of urine left by one of the residents on the main corridor.  The Defendant was aware of residents urinating in the main corridor on a regular basis which made the vinyl floor surface slippery.  A number of accidents had occurred due to presence of urine on the floors. The Defendant had a good system of inspection and cleaning in place, as well as risk assessments, warning notices and 2 non slip mats positioned in the worst hit areas.

The trial decision
The Claimant had pleaded her case under regulation 12 of the 1992 Regulations, alleging the floor was not suitable for the purpose for which it was used because it was frequently urinated upon and became slippery when wet.  Paragraph 93 of the Code of Practice in relation to Regulation 12 provided that surfaces of floors which are likely to get wet should be of a type which do not become unduly slippery and a slip resistant coating should be applied where necessary.  This Code of Practice and alleged breach was disregarded by the judge because it “was not a matter specifically pleaded or dealt with in evidence”.

The judge dismissed the claim on the basis that the strict liability in Regulations 12(1) and 12(2) related to the construction of the floor surface and not to a transient hazard. 

The Claimant appealed.

Court of Appeal Judgment
Regulation 12 of the Workplace [Health, Safety and Welfare] Regulations 1992 reads;

a)         Every floor in a workplace and the surface of every traffic route in a workplace shall  be of a construction such that the floor or surface of the traffic route is suitable for  the purpose for which it is used.

b)        Without prejudice to the generality of paragraph (1), the requirements in that   paragraph shall include requirements that—

• the floor, or surface of the traffic route, shall have no hole or slope, or be uneven  or slippery so as, in each case, to expose any person to a risk to his health or safety;        
  
  and
  
• every such floor shall have effective means of drainage where necessary.

c)        So far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.

In the lead judgement, Lady Justice Smith held and explained;

1.      The overriding intention of the Legislature when drafting these Regulations was the protection of workers.

2.      In assessing floor suitability, Regulations 12(1) and (2) require the court to consider all relevant factors which will include;            

• the construction of the floor;
• nature / quality of its surface; 
• the frequency and regularity of conditions, such as spillages, arising;
• the purpose for which the floor was used;
• the likelihood of an accident occurring;
• the gravity of any injury which may occur; 
• whether the substance or hazard was obvious to the naked eye; 
• any relevant accident history and / or previous complaints in relation to staff accidents

The court should then “stand back” and decide objectively whether it can be said that the floor was suitable for the purpose for which it was used.

3.      If a smooth floor is frequently and regularly slippery because of a substance which lies upon it, albeit only temporarily, the surface of the floor may properly be said to be unsuitable, if the slipperiness is such as to give rise to a risk of the health and safety of those employees using it.

There had been three instances of workers slipping in urine within the three year period preceding the index accident.  An injury caused by slipping in urine and leading to injuries of at least moderate severity was entirely foreseeable.

4.      Official publications, i.e. the Code of Practice, emanating from the relevant government department can be referred to in civil proceedings as an aid to construction.  Although the Code of Practice should be treated with caution, on this occasion it supported the finding that regularly and frequently occurring conditions should be taken into account when deciding whether a floor is suitable for its use within Regulations 12(1) and (2).

5.      Regulation 12(1) is intended to cover permanent features of the floor and also regularly and frequently occurring hazards while Regulation 12(3) is intended to cover transitory conditions which occur less frequently.  The suitability of a floor must be considered in conjunction with the conditions in which it is used.

The Claimant’s appeal was allowed.  Contributory negligence was assessed at one third with Lady Justice Smith imposing greater responsibility on the Defendant on the grounds that the breach of a provision of strict liability “connotes a higher degree of responsibility”. 

Comment
The decision in Ellis goes further than previous case law, finding that an employer must not only assess the construction of floors and traffic routes but also any transient substance which lies upon them on a regular basis. 

Pre Ellis, in order to escape liability, employers could argue they took all reasonably practicable steps to avoid a slipping hazard by keeping the floor free from any substances likely to cause a person to fall, by showing they had a robust cleaning / inspection system, and warning notices were in place. Post Ellis, employers run the risk of facing a strict duty, with lesser prospects of successfully defending such a claim, if spillages are frequent and the facts of the case fall within Regulation 12(1).  Regulations 12(1) and 12(3) now appear to be mutually exclusive in relation to transient substances - the question to ask is whether the substance lies upon the floor on a “frequent and regular basis”.  If the answer is yes, it falls within Regulation 12(1); if no, it falls within Regulation 12(3).

It is important for authority employers to bear in mind that the duty under Regulation 12(1) is limited to ensuring the floor surface is suitable for the purpose for which it is used.

In developing a strategy, authorities would be well advised to;

1          Assess the purpose for which the floor is used, who uses it and the likelihood of spillages;

2          If they consider the floor is slippery, it should be replaced with a non slip surface.  Although this may seem an expensive option, the total costs of one fast track claim could be in the region of £20,000 - £25,000;

3          Introduce and supervise a robust inspection and cleaning system;

4          Warn employees of any dangerous or slippery surfaces;

5          Erect warning notices in the vicinity of the dangerous or slippery surfaces; and

6          Instruct employees to report and / or clean any spillages immediately.  A record of such incidents should be maintained to enable statistics of ‘frequency’ to be compiled.

Current risk assessments should be updated to consider whether a transient substance lies upon the floor’s surface on a frequent and regular basis.  The threshold for what constitutes “frequent and regular” occurrence does not appear to be particularly high.  For example, in Ellis, there were only three falls in urine, involving employees within the three year period preceding the accident but such occurrence was found to be sufficiently frequent. 

This decision will have serious practical implications for the care professions where substances such as drink or food may be spilled on a “frequent and regular” basis.  If so, according to the decision in Ellis, the employer’s duty will be strict and the prospects of defending any such claims will be reduced.

Where possible, relying on evidence emanating from the above strategy, defendants should still seek to argue that the applicable duty falls within Regulation 12(3) which provides a less onerous duty to keep surfaces free from hazards “so far as reasonably practicable”.  Provided authorities operate a robust system of inspection / cleaning and have a good accident record, they may still be able to persuade a court that the occurrence of spillages is rare and that its duty falls under Regulation 12(3) rather than 12(1).

Andrew Cooper, Weightmans