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Lewis v Avidan Limited, Court of Appeal, 13 April 2005

3 March 2006
The issues

Workplace (Health, Safety and Welfare) Regulations 1992 – Regulation 12 and Regulation 5

The facts

The Claimant slipped on a patch of water.

The Claimant was a care assistant at a Nursing Home. The nursing home was run by the Defendants. On 16/17th October 2000 she was on night duty. About 6 am on the morning of 17th October at the end of her 12 hour shift, she came down to a first floor hallway where she slipped on a patch of water on the linoleum floor injuring herself. The matter came before the Judge on the issue of liability only.

Water on which the Claimant slipped was on the floor because of a concealed white water pipe which had burst unexpectedly shortly before the accident. No one knew about this before the Claimant came on to the floor. The Judge found that the Defendant was not at fault as to the wet state of the floor nor were they negligent as to the bursting water pipe.

He also found that the Defendants were not in breach of Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (“so far as is reasonably practical, every floor in a workplace, every surface and every traffic route in the workplace should be kept free from obstructions and from any other article or substance which may cause a person to slip, trip or fall”). He also found that Regulation 5 did not apply. (Regulation 5 provides:

1) The workplace and the equipment, devices and systems to which this Regulation applies should be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair).
2) Where appropriate, the equipment, devices and systems to which this Regulation applies shall be subject to a suitable system of maintenance”.

The Judge held that the Regulation did not apply because the pipe which burst did not cause the Claimant’s injury or that if Regulation 5 did apply then there was not purpose in Regulation 12 or at least in Regulation 12 (3).

The Claimant appealed as to the Judge’s finding as to Regulation 5.

The decision

Regulation 2 of the Regulations defines the workplace and that definition was wide enough to include the floor on which the Claimant slipped but it did not include the enclosed pipe. The pipe was not premises or part of premises made available to any person as a place of work. On the Judge’s finding the floor was maintained in an efficient state and in good repair. There was no breach of Regulation 5 because of the state of the floor taken alone; nor was there a breach of Regulation 5 because of the defective state of the pipe on the basis that the pipe was not part of the workplace.

The question arose as to whether the pipe was equipment i.e. a devise or system to which Regulation 5 applied. The Court was prepared to assume that the pipe was equipment within the definition contained in Regulation 5 (3). It was also clear that the pipe was not in good repair.

If there was a fault in the pipe would that be liable to result in a failure to comply with any of the Regulations? Regulation 12 (3) would not be breached simply because the floor was slippery. It would be breached if in addition the employer had failed to take reasonable steps to prevent the floor being slippery or to mop it up. That would be the failure resulting in a failure to comply and not the bursting pipe.

The remaining issue was therefore whether the burst water pipe resulted in a breach of Regulation 5 (1). The workplace including the floor had to be maintained in an efficient state. The mere fact of a flood did not mean that the floor was not maintained in an efficient state. The mere fact of an entirely unexpected and unpredictable flood did not mean that the floor was not maintained in an efficient state. The pipe which burst although it may have been equipment was not equipment the fault in which was liable to result in a failure to comply with any of the Regulations and in particular Regulation 5 (1).

Appeal dismissed.

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