Marks and Spencer Plc v Palmer

A floor is suitable for the purposes of regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 if, assessed objectively and before any accident, its construction does not expose expected users to a material risk to health or safety. The occurrence of a trip does not itself establish unsuitability or prohibited unevenness.

The assessment is contextual. It includes the nature and possible consequences of the feature, its dimensions, location and obviousness, the characteristics of expected users and the history of safe use. Reasonable foreseeability is relevant but is not the governing test. An absolute obligation to provide a suitable floor does not convert suitability into a guarantee against every accident.

An employee tripped over a weather strip standing approximately 8 to 9.5 millimetres above the floor at a staff exit and fractured her wrist. The recorder found that the employer had not been negligent and that the accident was not foreseeable. He nevertheless held that the trip itself demonstrated breaches of regulations 12(1) and 12(2)(a) of the Workplace (Health, Safety and Welfare) Regulations 1992.

The employer appealed from the Lincoln County Court. The central question was how suitability and exposure to risk under regulations 12(1) and 12(2)(a) should be assessed, including whether the occurrence of an accident was sufficient to establish breach.

1. Appeal allowed unanimously. Lord Justice Waller delivered the principal judgment. Lord Justice Schiemann agreed broadly with his reasoning, while reserving his position on whether the weather strip made the floor uneven for the purposes of regulation 12(2)(a) of the Workplace (Health, Safety and Welfare) Regulations 1992.

2. The recorder had adopted the wrong approach. A floor does not become unsuitable merely because a person trips on it. Suitability under regulation 12(1) requires a qualitative and objective assessment from the standpoint of health and safety. Although the obligation may be absolute in the sense that the employer must provide a suitable floor, that description does not determine what “suitable” means or impose liability for every accident.

3. The relevant inquiry under regulations 12(1) and 12(2)(a) is whether the floor was constructed in a way that exposed a person to a risk to health or safety and, for regulation 12(2)(a), whether any unevenness was sufficient to create such a risk. Reasonable foreseeability is not the touchstone, although it may form part of the assessment.

4. The court must consider all relevant circumstances prospectively and without hindsight. They include the nature and possible consequences of the feature, its dimensions and location, its obviousness, the people expected to encounter it and the experience of its previous use. The magnitude of a risk cannot be considered in isolation from the gravity of the possible injury and the practical implications of precautions.

5. In context, the slight rise was commonplace and obvious. The respondent knew of it, the route was well lit and thousands of previous uses had produced neither an incident nor a complaint. Expected users included people with varying mobility, footwear, tiredness, attention and burdens, but they were ordinary users accustomed to ordinary surroundings. The floor was therefore suitable and did not expose users to a risk within the regulations.

6. Waller LJ considered that a raised weather strip could make a floor uneven. Schiemann LJ expressly reserved that question. The court nevertheless agreed that this slight rise did not render the floor unsuitable or create the relevant health-and-safety risk. The appeal was allowed, with costs in the Court of Appeal and below.

1. Court of Appeal (Civil Division): The employer’s appeal was allowed unanimously. The findings of breach under regulations 12(1) and 12(2)(a) of the Workplace (Health, Safety and Welfare) Regulations 1992 were displaced, with costs here and below: [2001] EWCA Civ 1528.

2. Lincoln County Court: Mr Recorder Coward QC found no negligence and no breach of regulation 12(3), but held that the employer was in breach of regulations 12(1) and 12(2)(a).