Bar set too high for nightclub in slipping accident

As the HSE Health & Safety at Work Statistics 2022 illustrate, slips trips and falls remain the most common cause of workplace injury. Similarly, they are the main cause of public liability incidents involving visitors to premises. However, the recent appeal decision of Apres Lounge v Wade is a helpful reminder that such accidents do not necessarily give rise to liability for the occupier of such premises.

Ms Wade (the respondent) was visiting the Apres Lounge Limited’s (the appellant’s) bar in Leicester when, in the early hours of the morning, she slipped on what was thought to be a spilt drink near to the bar counter. She brought her claim both in negligence and for breach of the Occupiers’ Liability Act 1957. It was accepted that the respondent had slipped in this manner and that consequently there was a prima facie case of negligence because such premises should not have spilt drinks on their floors.

At first instance, the judge accepted the evidence of the appellant’s representative that there had been three staff on duty that evening operating a system of monitoring, including looking for spillages, every 10-15 minutes. However, notwithstanding this, the judge imposed liability on Apres Lounge Limited on the basis that, in his opinion, a system of checks every 10-15 minutes was not sufficient to discharge the occupier’s duty under the 1957 Act to take such care as was reasonable in all the circumstances to ensure that their visitors were reasonably safe. His reasoning was that the risk of spillages was likely in what was a busy thoroughfare, the floor was likely to be slippery when wet, there was no evidence as to how long the spillage had existed, no evidence was called from those actually undertaking the monitoring, and such checks were not documented by the bar staff.

The appellant appealed on the grounds that:

1. The judge was wrong in law to find that checks every 10-15 minutes were not sufficient to satisfy the duty of care;
2. The judge imposed an unreasonably high burden on the appellant and thus erred in law;
3. The judge failed to indicate what system the appellant ought to have operated; and
4. It was unjust for the judge to find that the system in operation was insufficient, particularly when it was not the respondent’s case that more frequent inspections were required.

Mr Justice Knowles on appeal accepted that the judge fell into error when he held that the appellant’s system of inspection had not been reasonable in all the circumstances to keep the respondent reasonably safe, as required by s 2(2) of the 1957 Act. Unlike in certain previous cases quoted, here there was direct and detailed evidence adduced of the system which was being operated in the bar that night. The appellant’s systems were proactive and not reactive. Having regard to the realities of running a late night bar, the system of floor inspections by several members of staff as described was sufficient to fulfil the appellant’s statutory duty. Indeed, the judge had erred in understanding the appellant’s evidence to be an inspection every 10-15 minutes. In fact, the appellant’s system had been one of continuous monitoring by continual walking, with the result that every area was checked at least every 10 to 15 minutes, as staff carried out their inspections. Every area would have been checked at least with that frequency, but there was continuous monitoring.

HHJ Knowles found that the trial judge imposed too high a standard amounting to a counsel of perfection which in effect would have required the appellant to operate a system of continuous surveillance and monitoring, requiring many more members of staff to monitor every patch of floor in the premises, so that no spilt drink could ever be present on the floor at all. To do so would be impractical and unreasonable.

HHJ Knowles made no finding on ground 4 (above) on the basis of the available evidence but rejected ground 3. Whilst it would have been open for the appellant to mount a defence on causation (namely that even if the system of continuous monitoring had been operated, the accident was likely to have still occurred), this was not their defence and thus the trial judge had no need to address such issues. It was for a claimant to prove their case on causation and here there was no such issue as it was clear that Ms Wade had slipped on the spilt drink. The case simply revolved around whether the appellant’s system had amounted to taking reasonable care to ensure that the respondent and others were reasonably safe.

The judgment in this case provides a useful summary of various relevant judicial authorities covering the OLA 1957 and what constitute reasonable systems in the context of various types of premises and various circumstances. It is, therefore, worth a read in its entirety. However, as the judgment also points out, such cases are often fact-specific with different judges capable of reaching different decisions on the same factual circumstances. Consequently, the measures required to constitute a reasonable system, the type of defence to advance in response to such claims and the evidence required in support requires careful consideration as early as possible.

We have a strong track record defending public liability slip & trip claims for clients across a variety of sectors. If you require any assistance in auditing systems of inspection and maintenance, or in defending any such claims pursued against you, please contact us.