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Bassie v Merseyside Fire and Civil Defence Authority, Court of Appeal, 1 November 2005

3 March 2006
The issues

Claimant Slipping On Dust – Whether Employer Liable For Breach Of Regulations 5 (1) And 12 (3) Of The Workplace (Health, Safety And Welfare) Regulations 1992

The facts

On 7th February 2001 the Claimant was undertaking fitness training in the appliance room at the Old Swan Fire Station in Liverpool. He was one of three. In order to warm up they were running at jogging pace and changing direction from time to time on the command of the man in charge. As he changed direction the Claimant fell and suffered an injury to his left knee. The Judge at first instance found that the Claimant had slipped on an invisible layer of fine dust and found for the Claimant under Regulation 5(1) and Regulation 12 (3) of the Workplace (Health, Safety And Welfare) Regulations 1992. The Claimant had been wearing suitable footwear. There was nothing wrong with the floor as such provided it was kept clean. It was thoroughly cleaned once per week and before fitness training took place it was inspected and swept with a brush. This had been done by one of the men on the day of the accident.

After the accident two other firemen inspected the floor where he had fallen. There was nothing to be seen and when one of them rubbed his foot over the area it did not feel slippery. However, when he ran his hands over the surface of the floor he discovered it was covered with a fine film of dust.

The Defendant appealed.

The decision

The first challenge was to the Judge’s finding of causation i.e. whether the dust caused the Claimant to slip. The expert in the case who had inspected the premises carried out slip resistance tests and found only a marginal reduction in the floor’s slip resistance. When cross examined he said that if the floor had been swept the likelihood was that a very fine dust would be left behind and that if he had introduced “dry lubricant material” to a floor of the type in question, an element of slipperiness would be introduced that was not there before. The Judge had been entitled to rely on this evidence and his finding of fact was not one that the Court would interfere with.

The second challenge was as to the finding of breach of statutory duty. Regulation 12 (3) stated that “so far as is reasonably practicable, every floor in a workplace÷.. should be kept free from÷÷ any substance which may cause a person to slip÷..”

The Defendant had not pleaded a defence of reasonable practicability as it should have done and none of its evidence was specifically directed to this issue. The Judge had nonetheless dealt with the issue. In terms of the language of the Regulation the dust on the floor was a substance which might cause a person to slip. There was no question of knowledge or foreseeability involved at this stage. The mere presence of the substance on the floor was enough to engage the Regulations subject to the defence of reasonable practicability which it was for the employer to prove. The Defendant had a cleaning schedule for the floors in the Fire Station. The appliance room had a concrete floor with a lower slip resistance than the gym where fitness training was also carried out. The gym was swept daily. The appliance room was swept and damp mopped weekly.

The Defendant knew that dust and dirt would be carried into the appliance room from vehicles and firemen coming in and out. They knew that since the area was only cleaned once per week it was possible that fitness training might take place 6 days after such cleaning. Against this there was no evidence before the Judge as to the effort and expense required to carry out wet mopping after brushing on a daily basis. There was no reason to think however that a fireman who carried out the brushing could not carry out the mopping as well. It was open to the Judge therefore to find on the facts that it was reasonably practicable to keep the floor free from dust.

It was unnecessary therefore to make a finding with regard to Regulation 5.

Appeal dismissed.

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