Laverton v Kiapasha (t/a Takeaway Supreme)

Under the common duty imposed by the Occupiers' Liability Act 1957 s 2(2), an occupier must take reasonable care, in all the circumstances, to make visitors reasonably safe for the permitted purpose. The duty is not a guarantee of safety and does not ordinarily require a busy small shop to keep a floor dry when customers bring in rainwater. The court must distinguish an unavoidable general condition from a discrete danger such as a greasy spillage. Reasonable precautions may include suitable slip-resistant flooring, a mat and mopping, but their adequacy depends on the premises, traffic, weather and practicability. A fixed mat is not universally required. Where wetness is obvious and the premises remain reasonably safe with reasonable care by customers, the occupier may not be negligent. The appeal was allowed and the claim dismissed.

The claimant slipped on a wet tiled floor in the respondent's busy takeaway shop after rain and broke her ankle. Newcastle upon Tyne County Court, HHJ Walton, found the occupier wholly liable on 23 April 2002 and directed that damages be assessed. The occupier appealed on breach of duty and the claimant's alleged contributory negligence.

The Court of Appeal considered whether reasonable care required a dry floor, a fixed mat or mopping during peak trading, and whether the claimant's alcohol consumption, footwear, size and failure to notice the obvious wetness affected responsibility. The central issue was what precautions were reasonable in the particular circumstances.

1. Disposition. By a majority, Hale LJ and Peter Gibson LJ allowed the appeal, set aside the county court order and entered judgment for the defendant. The claim was dismissed. Mance LJ disagreed on breach of duty and would have reduced the claimant's recovery to 50% for contributory negligence.
2. Statutory standard. The common duty under the Occupiers' Liability Act 1957 s 2(2) is constant, but its application depends on all the circumstances. It requires reasonable care to see that visitors are reasonably safe for the purposes for which they are permitted to use the premises. It does not guarantee safety.
3. Nature of the danger. Hale LJ, whose reasoning was substantially adopted by Peter Gibson LJ, distinguished discrete dangers such as greasy spillages from the general problem of rainwater carried into premises by customers. The evidential principle in Ward v Tesco Stores Ltd [1076] 1 WLR 810 was therefore unnecessary because the wet floor was established and the issue was what reasonable measures the shopkeeper should have taken. The general formulation of the shopkeeper's duty in Turner v Arding & Hobbs Ltd [1949] 2 All ER 911 did not impose strict liability.
4. Reasonable precautions. A takeaway may reasonably use tiled, hygienic and easily cleaned flooring, but should choose a surface offering greater slip resistance and may rely on a reputable manufacturer's literature unless experience shows it to be over-optimistic. A doormat is sensible, but the law does not require every business to use a fixed mat. Mopping may be practicable outside peak periods, but cannot reasonably be expected while a small shop is full. The floor need not be kept dry at all times. In the circumstances, requiring these measures to prevent significant wetness would impose an unrealistic standard approaching strict liability.
5. Obviousness and customer care. Customers could remain reasonably safe if they took reasonable care on the obviously wet floor. Hale LJ and Peter Gibson LJ stated in the alternative that the claimant had failed to do so, having regard to the obviousness of the danger, her alcohol consumption, footwear and movement in the queue. They would have apportioned responsibility equally if the defendant had been negligent. Mance LJ reached the same conclusion on contributory negligence, but considered that the defendant's failure to operate the mat and cleaning system established negligence.
6. Appellate review and costs. Although breach under the statutory duty is essentially a factual issue and an appellate court should be slow to interfere, it must correct an unrealistic standard of care. The claimant was ordered to pay the defendant's appeal and county court costs, subject to the postponed determination under the Access to Justice Act 1999 s 11 and detailed assessment under paragraph 49 of the Community Legal Service Funding Order 2000.

• Court of Appeal (Civil Division): [2002] EWCA Civ 1656. The appeal was allowed by majority, the county court order was set aside and judgment was entered for the defendant.
• Newcastle upon Tyne County Court: HHJ Walton found the defendant wholly liable on 23 April 2002 and directed that damages be assessed.