COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
HH JUDGE STUART-BROWN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE WILSON
| SUSAN ELLIS
|- and -
|BRISTOL CITY COUNCIL
Ronald Walker QC (instructed by Wansbroughs Solicitors) for the Respondent
Hearing date : 25 May 2007
Crown Copyright ©
Lady Justice Smith :
"LOCATION: Gleeson House – Corner of downstairs corridor.
HAZARD/TOPIC/ACTIVITY: A resident chooses to frequently urinate in this area, floor particularly slippery when wet here.
PERSONS AT RISK: all residents. (Staff made aware and are able to comprehend fully).
DESCRIPTION OF HAZARD AND LIKELY CONSEQUENCES: There have already been a higher number of falls here, causing a particularly serious injury to one resident.
EXISTING PREVENTATIVE AND PROTECTIVE MEASURES: Staff made aware and asked to be more vigilant. i.e.checks more frequent, resident taken to lavatory when seen in this area, resident now wearing pads back to front and trousers (removes pad and refuses lavatory).
DEGREE OF INJURY: Major.
ACTION REQUIRED – RANKING: 1st.
FURTHER ACTION PROPOSED TO REDUCE THE RISK (CONTROL MEASURES): Non-slip mat moved to area warning sign put in area copy of assessment displayed in staff room fire doors kept closed.
IMPLEMENTATION DATE: 31-10-02"
There was also a notice posted at the end of the corridor just before the corner which said:
Mr Kevin Alexander, a safety adviser employed by the respondent approved these measures.
"The floor covering used in the home is hazardous due to the loss of continence of a number of service users. Non-slip mats are used in bedrooms but these are not appropriate to be used in corridors. Corridor floors are frequently found to be wet due to service users with loss of continence. When wet, corridor floors are slippery and both staff and service users have been known to fall, as it is not easy to spot, and thus avoid, a wet patch on the floor due to the colour of the floor. The manager informed us that this has been referred to the Council's Health and Safety officer who has visited the home. Corridor floor coverings should be changed to non-slip safety flooring or some other suitable flooring, which would greatly reduce the hazard and the number of falls."
"12 Condition of floors and traffic routes
(1) 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.
(2) Without prejudice to the generality of paragraph (1), the requirements in that paragraph shall include requirements that-
(a) 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
(b) every such floor shall have effective means of drainage where necessary.
(3) 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.
'Surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be of a type which does not become unduly slippery. A slip-resistant coating should be applied where necessary'.
The Judgment and the Appeal against it
The Claimant relies on strict liability arising as a result of the Defendant being in breach of Regulations 12, (1) and (2) of the Workplace Regulations. Despite the submissions made by Counsel on her behalf and the authorities produced to support this content and in particular Marks and Spencer Plc –v- Kathleen Palmer 2001 EWCA CIV 152 and the proposition which the Court must consider in paragraph 19 "has the floor been constructed in such a way as to expose any person to a risk to his health and safety". I do not accept that the corridor floor falls to be construed as being constructed as being caught by this Regulation. The issue in this case related to whether a weatherstrip formed part of the construction of the floor. The Regulation relates to the construction of the floor surface and not a transient hazard. There is no evidence from the Claimant relating to the unsuitability of the particular type of floor in use at that time, save reliance on a report that was available after the accident happened recommending that the floor be changed to a non-slippery type. Further, the particular cases cited on behalf of the claimant to support instances where Regulation 12 (1) and (2) have been engaged related to specific situations which in my Judgment are distinguishable and do not apply here. Wenham v Bexley Current Law 99/2879 relates specifically to a kitchen floor where evidence was adduced that the construction of the flooring was unsafe. The primary purpose of this corridor was to provide access to and from the various rooms appending the corridors. Further, the risk which needs to be evaluated is the risk of health and safety, in this instance, to staff not residents.
The claimant in closing submissions referred me to paragraph 93 a Code of Practice in relation to Regulation 12 of the Workplace Regulations which provides that surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be of a type which does not become unduly slippery and further that a slip resistant coating should be applied where necessary. However, this Code of Practice and alleged breach of it was not a matter specifically pleaded or dealt with in evidence and have therefore disregarded this submission in my findings."
Then, beginning at paragraph 25 of the judgment, Waller LJ said:
"I am not sure that language such as "real risk" or "slight risk" necessarily encapsulates the exercise that it seems to me must be performed. If the risk, however slight, is of a very serious injury or death in falling from a high-storey building, then the fact that the risk is slight may not outweigh the cost and importance of taking adequate precautions. Equally no one would suggest that an employer should be entitled to have a seriously uneven floor if the risk is simply that someone may trip over -- i.e., that the risk is not of a very serious injury. It seems to me that the exercise to be performed is one of taking into account all relevant factors in this context; that is to say, the nature of the risk (i.e., here that the weather strip is by a door, that it is only 8 to 9.5 millimetres high, that it is next to some steps and that if the weather strip were tripped over a person may fall down the steps outside the door). But at the same time the assessment would hold that the weather strip was obvious, that it was in a place to be expected, and indeed this lady knew of it and there had been no complaints at all despite the number of exits that had taken place.
Then of course the assessment would take into account the nature of the persons who are exposed to any risk. This lady, for example, was 63. The evidence was that she did not always walk picking her feet up, as perhaps she should have done, and the presumption must be that there would be a number of employees in Marks and Spencer such as this lady. But again the assessment would be that persons such as this lady had managed to exit without any difficulty. Surely (it could be said) persons can manage a weather strip which is only 8 to 9 mm proud of the floor.
The court, as it seems to me, should stand back and ask itself, by reference to the above factors as they existed before this accident took place and not with any benefit of hindsight, was this floor suitable? Was it uneven to an extent which exposed persons to risk of their health or safety? My answer to those questions would be that it was suitable and that it did not expose persons to that risk. That is the view to which, in my judgment, the recorder should have come, rather than holding the absolute liability that he did."
"In law, context is everything. The context here is a shop, with it being expected that many people of varying degrees of physical mobility, in varying footwear and varying degrees of tiredness and attention, with varying amounts of bags and so on on their persons, will use this floor to walk on. …… The sort of slight rise which we have here occurs everywhere. ….. The ordinary person would not …. regard his ordinary walking about in the course of an ordinary day on such a floor as that with which we are presently concerned as exposing him to a risk to his health or safety. Nor would the employer when constructing the floor."
Lord Justice Lloyd :
Lord Justice Wilson :