Strict liability attached to slipping hazards in workplaces has recently come under the legal spotlight. Peter Forshaw explains the rationale of a recent decision and the practical steps employers must take to protect themselves against its far-reaching implications
The recent Court of Appeal decision in Ellis v Bristol City Council sends a stark warning to employers about safety assessments, particularly in working environments where spillages are an occupational hazard. According to the Health and Safety Executive, slips and trips are the single most common cause of injuries in UK workplaces. Despite frequently being invoked in litigation, the Court of Appeal has rarely been called upon to consider section 12 of the Workplace (Health, Safety and Welfare) Regulations 1992, but the decision in Ellis widens the scope of strict liability against employers under this statutory provision.
The claimant Susan Ellis was employed as a care assistant at a home for the elderly run by the defendant. It was accepted that residents urinating on the floor of the main corridor was a frequent problem at the home and, as a result, the council had implemented a variety of measures including regular inspection and cleaning, a detailed risk assessment, warning notices and the placement of non-slip mats in the worst affected areas. Notwithstanding these precautions, the claimant slipped in a pool of urine left by one of the residents, suffering personal injury. While the judge at first instance dismissed the claim, the Court of Appeal reversed this, subject to a 33% finding of contributory negligence.
In such cases, it is easy to see why claimants plead the entirety of regulation 12 of the 1992 rules. Regulations 12(1) and (2) impose strict liability for failing to ensure that floor surfaces are suitable and not slippery, whereas regulation 12(3) - which exclusively should apply in most factual scenarios - requires employers to ensure that floor surfaces are kept free from substances that may cause a person to slip 'so far as is reasonably practicable'. Clearly it is in a claimant's interests to try and invoke the strict liability provisions.
It has often been argued that these provisions relate to permanent construction features of floors, whereas the less onerous duty relates to maintenance. However in Ellis, the Court of Appeal had to consider whether the presence of substances spilt on a floor could render the construction of such a floor unsuitable for its purpose, so as to render the employer liable for any resulting fall.
In reaching its decision, the court was influenced by the legislature's intention when drafting these regulations to protect employees at work - and by the Code of Practice for the 1992 regulations, which provides that surfaces or floors that are likely to get wet should be of the type that do not become unduly slippery, and a slip-resistant coating should be applied where necessary.
The Court held that the strict liability provisions of regulations 12(1) and (2) are intended to cover permanent features of the floor and also regularly and frequently occurring hazards, while regulation 12(3) is intended to cover transitory conditions, which occur less frequently. In this particular case, the presence of urine was something "only to be expected" and, therefore, the risk was a regular occurrence.
In assessing floor surface suitability under regulations 12(1) and (2), the case confirms that all relevant factors must be considered (see box for details).
The test as to whether strict liability provisions apply can be summarised as such: "If a floor is frequently and regularly slippery because of a substance that lies upon it, albeit only temporarily, the surface of the floor is unsuitable if the slipperiness is such as to give rise to a risk to the health and safety of those employees using it". In Ellis, only three members of staff had fallen in the preceding three years but an injury caused by slipping was entirely foreseeable and it was only pure chance that serious injury had not resulted.
In many workplaces, from factories and kitchens to bars and leisure centres, the risk of spillages is high. If the presence of a spillage or substance on the floor renders the surface slippery, and the substance lies on the floor on a frequent and regular basis, then the employer will be faced with strict liability under regulation 12, making it difficult for them to defend a claim.
The key to any health and safety policy, and defending such claims, will be a detailed risk assessment, which will need to consider: the purpose(s) for which the floor is used; the frequency and type of spillages or other substances on the floor; the effect of such substances on the effectiveness of the floor - does the substance make the floor hazardous?; and any control measures to remove the likelihood of spillage or resulting slipperiness. If frequent spillages render a floor slippery, consideration should be given to replacing or coating the floor with a non-slip surface.
While reasonably practicable measures will not provide a defence to any slipping claim under regulations 12(1) and (2) per se, it is still essential that employers implement a range of measures including a robust system of cleaning and inspection; warning notices; and attempts to prevent the spillage at source; as such measures will either prevent or drastically reduce the spillage arising and causing an accident. In such circumstances, employers will be able to argue that the risk is not 'frequent and regular'. A record of all such spillages or incidents is vital to enable statistics of frequency to be compiled for this purpose.
The Ellis decision and the extension of strict liability for slipping incidents have wide-ranging implications. In light of the decision, employers in workplaces where spillages arise should reassess the suitability of all floor surfaces - or the Court of Appeal's decision could open the door to a greater number of successful PI claims. Provided employers re-assess and implement the above measures, accidents may be prevented - or at least judges may be persuaded that the occurrence of spillages is rare and that the doctrine of strict liability is not invoked, thereby allowing a defendant to rely on a section 12(3) defence of reasonable practicability.
The construction of the floor - in the case of Ellis, the vinyl floor surface became slippery when wet.
The expected behaviour of the staff using the route - the Court of Appeal considered that in the care home environment, staff could not always be expected to concentrate on the floor but would at times be in a hurry or just not concentrating.
The regularity of spillages arising.
The likelihood of an accident occurring.
The gravity of any injury that may occur.
Any relevant accident history and/or previous complaints in relation to staff accidents.
The purpose for which the floor was used - the Court of Appeal drew the distinction between a factory floor where employees are issued with heavy protective footwear, and the floor surface surrounding a swimming pool where users are barefoot and frequently wet. As a result, the flooring in each case is likely to be different.
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