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November 23, 2007

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The legal costs for slips and trips at work

A slip or trip incident is no laughing matter when it results in serious injury to the victim and a day in court, plus attendant costs, for the duty-holder, as these recent cases examined by Sarah Faulkner illustrate.

Every year, according to HSE statistics, slip and trip incidents are increasing, and costing employers and their insurance companies dearly. In 2007, the Executive said such incidents amounted to £512m in lost production and other costs, such as damages paid out to injured employees.1 For an employer who finds themselves in a position of having to defend a claim against them from an employee or a lawful visitor to the premises who tripped or slipped, the most important documentation to be able to produce are pre and post-accident risk assessments. Also useful would be safe operating procedures and housekeeping documents, and any relating to storage areas, e.g. for pallets or containers. Written inspection and maintenance records will need to be provided, and time-sheets showing the frequency of the cleaning operations will also be useful, particularly if the incident relates to a spillage.

There has been a flurry of cases relating to slips and trips in the workplace in the recent years. The piece of legislation that is most frequently quoted in these cases is regulation 12 of the Workplace (Health and Safety) Regulations 1992, which states that: “Every floor in the workplace and the surface of every traffic route of a workplace shall be of construction such that the floor or surface of the traffic route is suitable for the purpose for which it is used.”

Also important are reg.12(2) – “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 of his health or safety; and every such floor shall have effective means of drainage where necessary” – and reg.12(3) – “so far as reasonably practicable every floor in the workplace and the surface of every traffic route in the workplace shall be kept free from obstructions and from any article or substance, which may cause a person to slip, trip or fall”.

Note the construction of the wording: “shall have” or “shall be” are absolute duties, with which the employer must comply. The clause “so far as reasonably practicable” in reg.12(3) provides some level of defence, however.

Fit-for-purpose flooring

In an important recent case – Susan Ellis v Bristol City Council 2007 CA ( Civ Div) EWCA 685 – the construction of these Regulations was considered in detail. The Claimant had slipped on a pool of urine at a nursing home in a main corridor. The floor was smooth vinyl and was washed daily and buffed with a machine, but was slippery when wet. Many of the elderly residents were incontinent, and urinated on the floor frequently. Following a risk assessment, non-slip mats had been placed on the floor, and warning notices put up around the home. The house rule was that if a member of staff came across urine on the floor they must call for a cleaner, or clean the spillage themselves.

In this case, breaches of regs.12(1) and 12(2) of the Workplace (Health and Safety) Regulations 1992 were alleged on the basis that the floor was not suitable for the purpose for which it was used, as it was frequently slippery due to urine. It was also alleged that the employers had failed to take heed of previous accidents and to install a non-slip floor.

Prior to this accident there had been 12 other falls, eight of which occurred on the corridor, and the rest in bedrooms. The Defendant denied that the fact the floor became slippery when wet rendered it unsuitable for the purpose for which it was used. The problem with one particular resident urinating had arisen only recently, and the floor was not unsuitable merely because of a transient problem. Any such problem had been dealt with and steps had been taken to reduce the hazard that might arise if the resident urinated again, said the Defendant. As to reg.12(3) the placing of non-slip mats, warning staff of the danger and directing them to clean up urine immediately, was, in the view of the defence, enough to show that the risk had been reduced so far as reasonably practicable.

The main issue before the Court was the treatment of regs.12(1) and 12(2). Waller LJ held that the right approach was to consider these two regulations together. The purpose of these provisions was to promote safety of workers; it was not the intention to restrict that requirement to permanent states of slipperiness. It was submitted that the judge was wrong in refusing to have regard to the Code of Practice to aid interpretation of the regulations.2 The ACoP requires the Court to consider the suitability of the floor in the context of the circumstances of its use – frequency and regularity. Read together, regs.12(1) and 12(2) required that the surface of the floor must not be slippery. This applied not only to permanent states of slipperiness but also those that occurred with a sufficient degree of frequency and regularity.

The floor was dangerous when wet, and the presence of urine was a regular and frequent occurrence. Thus, injuries were entirely foreseeable. Accordingly, the floor was not suitable for the purpose for which it was used, and it was not accepted that all transient slipping hazards were to be considered under reg.12(3), however frequently they occurred. (Regulation 12(3) has a less onerous duty and is intended to cover transitory conditions, which occur less frequently.)

The issue of contributory negligence was considered. There was no evidence before the Court that the Claimant was in a hurry, or under time pressure. It was held that due to her lack of concentration, and the fact that she had been warned of the danger and should have kept a look out, damages were reduced by one third for her own contributory negligence.

Dust danger

In the case of Merseyside Fire & Civil Defence Authority v Gavin Fraser Bassie 2005 EWCA (Civ Div) 14.74 the Claimant (a fire-fighter) had slipped on an invisible layer of dust in the appliance room. As its name implies, this room housed fire appliances, but on the day in question it was being used for fitness training. The fireman, wearing suitable footwear, was one of three taking part in the training and, when jogging and changing direction, he fell.

The judge at the initial trial went on to find that he had fallen on an invisible layer of fine dust. The Defendants contested the matter on the basis that there was nothing wrong with the floor, which was cleaned once a week. Before the training it had been inspected and cleaned with a brush. It was accepted by the judge that the floor had been inspected after the accident and there was nothing obvious to be seen. When one of the members of staff ran his foot over the surface of the floor it was not slippery. Using his hand, however, he discovered a fine layer of dust.

The judge found that the dust caused the Claimant to slip, and that it would be have been reasonably practicable to remove the dust by damp mopping prior to the fitness training. (Damp mopping was carried out by a cleaner every Thursday, but this accident happened on a Wednesday!) The Appeal Court agreed with the judge’s decision and found that the employers knew that dust and dirt would be carried into the appliance room from vehicles and staff, and that the area was only thoroughly cleaned once a week, even though fitness training took place six days after.

Accordingly, the employer was found to be in breach of reg.12(2) of the Workplace (Health and Safety Regulations) 1992, in that the dust on the floor was a substance that might cause a person to slip. It was reasonably practicable to keep the floor free from dust by damp-mopping, but this had not been done. The Appeal Court therefore held the original judge’s decision to be correct and dismissed the appeal.

Definitely not a free lunch

In Rita Burgess v Plymouth City Council EWCA (Civ Div) 16.59 2005 Ms Burgess was employed by the Council as a dinner lady and cleaner. After the end of the school day, at about 4pm, she was cleaning classroom number three. She was wiping a group of three tables, which were just inside the door. In the area between the tables and the door she fell over a plastic lunch-box container. The box was 43cm long and 34cm wide and was bright blue in colour. Ms Burgess injured her knee and back and was unable to return to work.

It was revealed that there was a system in place at the school whereby the lunch boxes were stored in containers. Children would bring their lunch boxes and would deposit them in containers at the start of the day. They would be kept there until lunchtime. After lunch, the empty lunch boxes would be put back into one of the two containers, which, in turn, were stowed in a safe place within the classroom. At the end of the school day, children would retrieve their lunch boxes. By the time Ms Burgess would enter the classroom to clean, the lunch-box containers should have been returned to their safe positions. Clearly, the one over which she fell hadn’t.

The Appeal Judge referred to the size, colour and visibility of the lunch-box container. He found it difficult to understand how Ms Burgess could not have seen the container when she entered the room, as it would have been “staring her in the face and right in front of her”. The Claimant did not have any problems with her eyesight.

The Judge found a breach of reg.12(3), and held that it was reasonably practicable for the container to be stowed away safely in accordance with the usual system. He also found that the cleaner was 50-per-cent to blame for the incident, in that “she knew full well what the system was”. To an extent, Ms Burgess was regarded as the author of her own misfortune. The judge found 50-per-cent contributory negligence on the basis that she was not keeping a proper look out for her own safety, and failed to see something that was obvious to anyone who was looking where they were going.

The Defendant (the Council) appealed against the finding of 50-per-cent contributory negligence and contended that the judge “ought to have found Ms Burgess substantially more to blame for the accident”. They also argued that it was the cleaner’s job to tidy up the area. The Appeal Judge did not consider that the question whether Ms Burgess was employed to tidy away items such as the lunch-box containers was determinative of the finding of breach of regulation 12(3). What was determinative was that a floor, or the surface of a traffic route, had not been kept free of an article, which may cause a person to fall. There was a system in place that had not been complied with. The Council’s appeal was therefore dismissed and the original finding of 50-per-cent contributory negligence stood. Damages were reduced by 50 per cent at the original hearing.

What is clear from this case is that the Courts are willing to make reductions if injured parties should have taken more care for their own safety – every employee has a duty to take care of themselves, after all. Contributory negligence arguments are more likely to succeed when there are obvious hazards, and more than a momentary lapse of concentration. The Courts still make allowances for human error.

Petal peril

Another interesting case is Piccolo v (1) Larstock Ltd (t/a Chiltern Flowers); (2) Chiltern Railway Co Ltd; (3) Richard C Grew; (4) Anthony Abela; and ( 5) First Choice Cleaning Supplies Ltd 2007 QBD July 2007.

At 8.30am the Claimant slipped on a petal on a railway station concourse. Every morning on his way to work, he walked through London’s Marylebone Station, which was occupied by the second Defendant. He would walk through the station and turn left, walking past the flower shop owned and occupied by Larstock Ltd (trading as Chiltern Flowers) and tenanted to Chiltern Railway Company Ltd.

On the date of the accident, as he was passing the flower shop, the Claimant stood on a petal, or petals, and slipped and fell. At the time, the station was busy with commuters. The concourse floor had a smooth surface and was beige in colour. The flower shop was a kiosk-type unit, with an extensive display of flowers in front. The flowers were in circular containers on tiered staging, and the extent to which they encroached on to the concourse varied.

The incident was witnessed by a security guard, who gave evidence and who wrote a short report in the aftermath. He inspected the area and saw a crushed flower, which he identified as the one on which the Claimant slipped. (The security guard was also expected to deal with hazardous litter and note any spillages as part of his employment and to ensure that they were dealt with.)

The Claimant said he had slipped on water and petals, but it was denied that there was any water in the area. It was also unclear from the evidence owing to inconsistent accounts given by witnesses, but the Court accepted that the petal was resting in an area of water.

Evidence was given to the Court that there was a “clean-as-you-go policy” and that staff were aware of the need to clear up any spillages or debris “as they occurred”. It was pointed out by the station manager that this was a reactive as opposed to pro-active system. There was no written policy on cleaning, and the success of a clean-as-you-go policy would depend on the vigilance of the staff. It was pointed out to the Court that staff of the flower shop were mainly inside the kiosk and would therefore not have immediately noticed any spillages.

A further witness provided evidence to the Court that she had slipped in similar circumstances, and that the shop-floor area in question was “like ice”. Evidence was also given that previous complaints had been made regarding water on the concourse, and that buckets often overflowed with water, and petals fell off on to the concourse. E-mails had been sent two months prior to the accident by a duty station manager, complaining about wet flower debris and water. He described the area outside the shop as a “slipping hazard”. A witness for the shop advised that if there was any mess it would be cleaned up immediately, but it was acknowledged that complaints had been received.

The judge concluded that evidence given by the shop owner was unreliable when it came to evidence of complaints and the extent of spillages. The extent of reminders by the station manager had gone beyond the case of a “recent falling of leaves that may not have been detected by a reasonable system”.

The presence of petals created a foreseeable risk of harm, and the shop owner was fully aware of this, and the duty of care extended to taking reasonable and effective steps to avoid the risk of slipping on petals, irrespective of whether there was water also present.

It was accepted that it was not possible to keep the floor dry and petal-free at all times. There was no evidence that the staff were too busy serving customers to check for spillages. The duty of care had to be measured against the high volume of human traffic and their pre-occupations. Evidence showed that staff responded promptly when asked to clear up, but they were asked to do something that they should have already done. After considering the argument posed by the defence that the huge volume of human traffic and lack of similar accidents meant it was not unsafe, the Court found that the absence of reported accidents did not provide a basis upon which to assess how often people had slipped, or momentarily lost footing over the years without consequence.

Was there a reasonably effective system of getting rid of the danger? The petal had only been on the floor a short time. There was no direct evidence that the area had been clear in the period before the accident. The trigger point for action was the moment of knowledge on the part of the members of staff, but this would suggest a reactive system and not a pro-active system. To be reactive it would depend on whether a member of staff was available at the relevant
ime, and if the staff could be relied upon to take immediate action. The judge stated that a “clean-as-you-go system operated in this way would contain an unreasonable element of chance”.

Where there is a foreseeable risk of falling debris, which may cause injury when walked upon, that risk is not safeguarded against by a purely reactive system, when steps are only taken when something is brought to notice. A pro-active system was therefore required. Here, there was neither any member of staff with ongoing responsibility to check, nor sufficient presence of staff outside the shop to ensure the finding and removal of spillages. The system did not regulate or limit the amount of time that a spillage would be on the floor before being seen. The “clean-as-you-go” policy was not a safe system of work. The evidence established that the petal had been on the floor for longer than it would have been if there had been an effective system of work in place. It was therefore found that the accident was caused by a breach of duty.

Turning to contributory negligence, the judge found that the Claimant was not negligent in choosing the route that he did. He was walking to his office and was not paying particular attention to where he was walking. If he had been looking down at the floor he would have noticed the petal. He was not in a rush and was walking at normal pace. He was found not to be negligent for failing to look down at his feet when walking through the station. The judge concluded that there was no evidence that the Claimant was walking “other than with reasonable care”.

Conclusion

No employer wants to face a huge insurance bill, or legal costs and damages for something that could have been prevented in the first place. Every case documented above is determined on its own facts. Employees, team leaders, supervisors, managers, and those involved in health and safety should be fully aware that they each have a part to play in reducing risk, and that pro-active procedures are more effective that reactive ones.

It is likely that injured persons will attempt to take advantage of the Court’s decision in Ellis v Bristol City Council. It will be interesting to see what the Court deems to be a frequent occurrence, and where the cut-off point is. Are two or three previous accidents or near-misses a “frequent occurrence”? This will be open to debate. In each case, “suitability” will need to be looked at, taking into account the nature of the risk and the nature of those exposed to the risk as well.

If employers and occupiers want to avoid this argument being applied, the sensible approach would be to ensure that slipping hazards are removed altogether, where possible. Also, if a risk is foreseeable, they should ensure that proper preventative measures are in place. If an accident happens once or more, and you are on notice of the problem – don’t let it happen again!

References

1 HSE (2007): Preventing slips and trips at work, INDG225 revised March 2007 – www.hse.gov.uk/pubns/indg225.pdf

2 HSE: (Workplace (Health, Safety and Welfare) Regulations 1992 – Approved Code of Practice and guidance L24, ISBN 0-7176-0413-6, HSE Books

Note

No information on the amount of damages awarded in these cases has been included because Court of Appeal judgments do not record the amount of damages paid, while decisions on appeals from lower courts are not reported until they reach appeal.

 

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