Lewis v Avidan Ltd (t/a High Meadow Nursing Home)

An absolute maintenance duty under the Workplace (Health, Safety and Welfare) Regulations 1992 applies only to the workplace and to equipment, devices or systems within the regulation’s scope. A workplace includes accessible floors and routes, but not a concealed pipe that is not premises made available as a place of work. Even if the pipe is equipment, its fault must be liable to cause regulatory non-compliance. An unexpected flood does not itself breach the floor obligation. Breach requires failure to take reasonable steps to prevent or remedy slipperiness. Maintaining a floor in an efficient state concerns action directed to the floor, such as cleaning or repair.

The claimant, a care assistant, slipped on water at her workplace after a concealed pipe unexpectedly burst. She claimed damages for negligence, breach of the Occupiers Liability Act and breach of the Workplace (Health, Safety and Welfare) Regulations 1992. Following a split trial, Her Honour Judge Hallan dismissed the claim in the Canterbury County Court on 14 October 2004. The negligence, occupiers’ liability and regulation 12 findings were not challenged. The appeal concerned whether regulation 5 applied to the pipe or to the temporarily wet floor, and whether the pipe’s defect was liable to result in regulatory non-compliance.

May LJ gave the leading judgment, with Rix LJ agreeing. The appeal from the dismissal of the claim was dismissed.

1. Regulation 5 of the Workplace (Health, Safety and Welfare) Regulations 1992 imposed an absolute duty where it applied. That conclusion was supported by Galashiels Gas Company Ltd v. O’Donnell [1949] AC 275 and Stark v. The Post Office [2000] PIQR 105, including where a defect was not reasonably discernible.
2. The definition in regulation 2 included the floor on which the claimant slipped, but not the enclosed pipe. This construction was consonant with Beck v. United Closures and Plastics Limited (2001) SLT 1299.
3. Even assuming that the pipe was equipment under regulation 5(3)(a), a fault had to be liable to result in failure to comply with one of the Regulations. A burst pipe could cause a flood, but the flood alone would not breach regulation 12(3). Breach required a failure to take reasonable steps to prevent slipperiness or to mop it up. Regulation 12(1) concerned the construction of floors, not temporary wetness.
4. Under regulation 5(1), maintaining the workplace in an efficient state referred to action directed to the floor itself, such as cleaning or repairing it. Applying Latimer v. AEC Limited [1953] AC 643 at 656, an entirely unexpected and unpredictable flood did not mean that the floor was not maintained in an efficient state. The defendants were therefore not in breach of regulation 5.

1. Court of Appeal (Civil Division) — On 13 April 2005, May LJ, with Rix LJ agreeing, dismissed the appeal.
2. Canterbury County Court — Her Honour Judge Hallan dismissed the claim on 14 October 2004 after a split trial on liability. The claimant was granted leave to appeal.