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Ellis v Bristol City Council

20 July 2007
The issues

Care homes – Floors – Tripping and Slipping – Incontinence of residents – Application of Regulation 12 Workplace (Health, Safety and Welfare) Regulations 1992 – Regulation 12(2) Workplace (Health, Safety and Welfare) Regulations 1992.

The facts

The Claimant was employed as a care assistant at a home for the elderly run by the Defendant Local Authority. The Claimant appealed against a decision to dismiss her claim for damages for an accident that happened in the course of her employment. The circumstances surrounding the accident were as follows, the Claimant slipped in a pool of urine left by one of the residents of the care home on the corridor floor. The floor surface was smooth vinyl, which became slippery when wet. Pools of urine on the corridor floor were not uncommon, most of the residents were incontinent. There had been similar accidents prior to that of the Claimant, and following risk assessments, non slip mats were placed where one resident in particular was known to urinate, warning signs were also placed around the home. The National Care Standards Council inspected the home just before the accident, and found the flooring to be hazardous because of the residents’ incontinence.

The Claimant argued there had been a breach of Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992. She alleged the floor was not suitable for it’s purpose because of the frequent urination upon it, causing it to become slippery. The judge dismissed the claim on the basis that the strict liability in Regulation 12(1) and (2) related to the construction of the floor surface and not to a transient hazard. The Claimant submitted that the judge had wrongly declined to bear in mind the Approved Code of Practice issued by the Health and Safety Commission pursuant to the Safety at Work etc Act 1974 as an aid to the construction of Regulation 12(1) and (2), and misunderstood the effect of the judgement in Palmer v Marks and Spencer Plc (2001) EWCA Civ 1528, and the Judge considered the construction of the floor in isolation instead of considering it in context.

The decision

In Palmer v Marks & Spencer the Court of Appeal had made comments of general guidance with regard to the interpretation of Regulation 12(1) and (2). In that case the Claimant tripped against a weather trip which protruded by less than 1cm above the surface of the doorway of the staff exit. It was a permanent fixture and was part of the construction of the floor therefore. It had never previously given rise to accidents or complaints. The Court of Appeal had said that the test of suitability under Regulation 12(1) and (2) was an objective test – whether the floor was constructed in such a way as to expose any person to risk to his health and safety.

The next issue was to consider how great the risk had to be before the floor was unsuitable. That exercise was to be performed by taking into account all relevant factors, i.e. the nature of the risk, e.g. that in the case of Palmer the trip was placed near steps with a risk that a person might fall down the steps if they tripped; but also taking into account the fact that the weather strip was obvious, in a place to be expected and that there had been no complaints at all about it. The assessment would have to take into account the nature of the people who were exposed to the risk, the Court should stand back and ask itself, by reference to these factors as they existed before the accident took place, and not with any benefit of hindsight, was this floor suitable?

In Palmer the Court was dealing with a permanent feature of the floor or traffic route and not with an intermittent condition.

In the Judgment of the Court Regulation 12(1) and (2) required the Court to consider suitability in the context of the circumstances of use, including temporary circumstances, provided they arose with a sufficient degree of frequency and regularity. The Code of Practice supported this view, although, when treated as an aid to construction, guidance from The Code of Practice had to be treated with caution.

Judgment had to be made on the facts of each case as to whether the hazard arose with such frequency as to attract the strict liability of Regulation 12 (1) and (2). The Court had to take into account a number of factors, including the construction of the floor, the nature or quality of its surface, the frequency of the hazardous condition, the likelihood of an accident occurring, and the possible gravity of any injury that might occur. It was evidence from the National Care Standards Council that due to the colour of the flooring it was difficult to see the pools of urine, and it was not open to an employer to assume that an employee in an establishment such as this would always be able to concentrate on the possible presence of a hazard such as urine in the corridors. Standing back, as the Court was obliged to do following the approach in the Marks & Spencer case, the conclusion had to be reached that the floor was not suitable for its purpose. Regulation 12(3) was intended to cover transitory conditions which occurred less frequently. Regulation 12(1) was intended to cover permanent features of the floor and also regularly and frequently occurring hazardous conditions, of which a slipping hazard was an obvious example. A Judgment would have to be made by the Court on the facts of each case as to whether the hazardous condition arose with such frequency and regularity as to make the floor “unsuitable for its use”.

The Claimant had been warned of the danger and, at the time, was not carrying anything or in a hurry or under pressure. It was not expecting too much to expect her to take extra care at that point. Contributory negligence would be assessed at one third.

Comments

Lord Justice Lloyd, who delivered a Judgment agreeing with Lady Justice Smith, who gave the main Judgment, took some time to consider the argument that the City Council, in part, relied on, namely that the appropriate Regulation to deal with transient conditions was Regulation 12(3), i.e. an obligation limited by reasonable practicability to keep the floor free from substances which might cause a person to slip, trip or fall. Lord Justice Lloyd wrestled briefly with the interesting issue of whether, in such a case, if the floor’s construction was such that it was unsuitable for its purpose, when did it become so? He conceded that there was force in the City Council’s contention that Regulation 12(3) was the governing Regulation for cases of this sort but ultimately agreed with Lady Justice Smith that if the transient problems occurred sufficiently often and regularly that they might cease to be only the province of Regulation 12 and instead become the subject matter of the absolute obligation in Regulation 12(1). He gave an example of such a case, being the area surrounding a swimming pool. He came to the view that it was also the case with a corridor in a care home where the incontinence of residence caused regular and frequent incidents of urine on the floor of the corridor.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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